New Jersey Employment Lawyer Blog

Lack of Evidence of Alleged Corporate Restructuring Can Prove Discrimination

July 2, 2021 | by Jonathan I. Nirenberg

A recent decision from the District of New Jersey concludes that, when an employer claims it fired an employee as part of a corporate restructuring, but has no documents to prove there was a restructuring, can be enough to prove age discrimination in violation of New Jersey law.

In 2014, Talbird Reeves Sams began working for Pinnacle Treatment Centers, Inc. His job was to find new locations for new facilities, and to help Pinnacle open those facilities.

In 2016, Pinnacle’s Chief Development Officer, Robert O’Sullivan, told Mr. Sams that his position was being eliminated due to “corporate restructuring” and his employment was being terminated as a result. At that time, Mr. Sams was 58 years old.

Two Racial Slurs Enough to Create Hostile Work Environment

June 17, 2021 | by Jonathan I. Nirenberg

Yesterday, a unanimous New Jersey Supreme Court ruled that two racially offensive slurs uttered by a supervisor can be enough to create a hostile work environment in violation of the New Jersey Law Against Discrimination (“LAD”).

Armando Rios, Jr. is Hispanic. He worked for Meda Pharmaceutical, Inc. as its Director of Brand Marketing. His immediate supervisor, Tina Cheng-Avery, was Meda’s Senior Director of Commercial Operations.

Mr. Rios claims Ms. Cheng-Avery made two racial slurs toward him. First, he claims that when he was discussing his plans to purchase a new house, Ms. Cheng-Avery said “it must be hard for a Spi*k to have to get FHA loans.” Second, he claims that the following month, when he and Ms. Cheng-Avery were casting actresses for a television commercial for one of Meda’s products, Ms. Cheng-Avery said one of the actress auditioning “would work … if she didn’t look too Spi*ky.” Ms. Cheng-Avery denies she made either of those comments.

New Jersey Supreme Court Finds Adverse Action Not Required for Failure to Accommodate Claim

June 8, 2021 | by Jonathan I. Nirenberg

Today, the New Jersey Supreme Court ruled that an employee does not need to suffer an adverse employment action to win a claim based on the employer’s failure to accommodate her disability under the New Jersey Law Against Discrimination (“LAD”).

Mary Richter is a teacher for the Oakland Board of Education. Ms. Richter has Type 1 diabetes. She repeatedly asked the school principal to allow her to change her schedule so she could eat lunch earlier to help her manage her blood sugar levels. However, the school did not accommodate her an accommodation for her diabetes.

Ms. Richter subsequently experienced a hypoglycemic event in a classroom. As a result, she fainted, hit her head on a table, and sustained very serious permanent injuries, including:

Lawyers Can Enforce Their Own Employment Contracts

June 1, 2021 | by Jonathan I. Nirenberg

New Jersey’s Appellate Division has recognized that, although a client has the absolute right to fire its in-house counsel, the lawyer is entitled to damages if the employer fired him without cause, in breach of an employment contract.

Kirk Nelson worked as in-house counsel for the Elizabeth Board of Education. He had a three-year employment agreement to server as board counsel. Pursuant to the contract, Mr. Nelson was entitled to a salary of $175,000 per year, with two-and-a-half percent annual increases.

Under his contract, the Board could not fire Mr. Nelson during the three-year term without cause. It defined cause as:

Age Discrimination Lawsuit Need Not Specify Replacement’s Age

May 13, 2021 | by Jonathan I. Nirenberg

An employee bringing an age discrimination claim does not need to state the age of the individuals who replaced him in the lawsuit. Rather, at that early stage, it is sufficient to assert that his replacement was “significantly younger” than him.

That was the ruling of the Third Circuit Court of appeals earlier this year. The Third Circuit is a court that handles appeals from the District of New Jersey.

The case was brought by Zeferino Martinez, M.D., an orthopedic surgeon. Dr. Martinez’s former employer, UPMC Susquehanna, fired him in 2017. At the time, Dr. Martinez was 70 years old.

Pregnant Workers Fairness Act Explained by New Jersey Supreme Court

April 30, 2021 | by Jonathan I. Nirenberg

Last month, the New Jersey Supreme Court addressed the New Jersey Pregnant Workers Fairness Act (“PWFA”) for the first time. The PWFA is an amendment to the New Jersey Law Against Discrimination (“LAD”) that prohibits pregnancy discrimination.

Kathleen Delanoy is a police officer. She filed a lawsuit in which she alleged her employer, the Township of Ocean, discriminated against her because she was pregnant. However, the trial court dismissed her case on a motion for summary judgment.

As discussed in my previous article, Appellate Court Recognizes Employers Must Accommodate Pregnancy, the Appellate Division subsequently reversed that ruling. Ocean Township asked the New Jersey Supreme Court to review that decision.

Arbitration Agreements Do Not Need to Designate Rules or Forum

September 16, 2020 | by Jonathan I. Nirenberg

Last week, the New Jersey Supreme Court ruled that, to be enforceable, an arbitration agreement does not necessarily have to set forth the rules or procedures that will apply in arbitration or to select a forum for the arbitration.

The case involved Marilyn Flanzman, who worked for Jenny Craig as a weight maintenance counselor in Paramus, New Jersey, for almost 27 years. In 2011, she signed an Arbitration Agreement with Jenny Craig. That agreement states that all disputes, including discrimination claims, must be resolved through “final and binding arbitration” rather than a jury or other civil trial.

In February 2017, Jenny Craig reduced Ms. Flanzman from thirty-five hours per week to nineteen hours per week. At the time, Ms. Flanzman was 82 years old. In April 2017, Jenny Craig further reduced Ms. Flanzman’s hours, to approximately thirteen hours per week. In June 2017, the company reduced her to only three hours per week. When Ms. Flanzman complained to her supervisors, they told her: “That is just the way it is,” and that if she did not accept her new schedule she would be fired. Ms. Flanzman, who apparently was the only employee in Paramus whose hours were reduced so dramatically, rejected the three-hour-per-week schedule.

Supreme Court Expands Religious Employers’ First Amendment Defense to Discrimination Claims

July 27, 2020 | by Jonathan I. Nirenberg

Earlier this month, the United States Supreme Court ruled that the First Amendment’s freedom of religion clause bars employees who work for religious institutions from bringing any employment discrimination claims against their employers if their jobs include performing “vital religious duties.”

The decision stems from lawsuits filed by two elementary school teachers, Agnes Morrissey-Berru and Kristen Biel. Ms. Morrissey-Berru worked for a Catholic school, Our Lady of Guadalupe School. Ms. Biel worked for another Catholic school, the St. James School. Although neither Ms. Morrissey-Berru nor Ms. Biel had the title of minister, they each taught all subjects, including religion, and were required to develop and promote the Catholic faith as part of their jobs.

Our Lady of Guadalupe reduced Ms. Morrissey-Berru from full-time to part-time, and subsequently decided not to renew her employment contract. Ms. Morrissey-Berru filed a lawsuit in which she claimed the school did so because of her age, in violation of the Age Discrimination in Employment Act (“ADEA”). The school claims it made those decisions because Ms. Morrissey-Berru had difficulty administering a new reading and writing program that it implemented.

In Finding Federal Law Prohibits Sexual Orientation Discrimination, Supreme Court Makes it Easier to Prove All Forms of Discrimination

July 9, 2020 | by Jonathan I. Nirenberg

A recent United States Supreme Court opinion, Bostock v. Clayton County, Georgia, rightfully received a lot of attention because it recognizes that federal law prohibits employers from discriminating against employees based on their sexual orientation.

Although New Jersey and New York law both expressly prohibit sexual orientation discrimination, Title VII of the Civil Rights Act of 1964, the primary federal anti-discrimination law, does not. Bostock recognizes that sexual orientation discrimination is a form of gender discrimination, and thus violates Title VII. That is a huge victory for gay and lesbian rights, since it extends the prohibition of sexual orientation discrimination to all 50 states.

While the holding of Bostock relates to sexual orientation discrimination, its reasoning makes it easier to prove all forms of unlawful discrimination. Specifically, it explains that you can prove discrimination merely by showing you would not have been fired (or would not have experienced another adverse employment action, such as being demoted or not being hired) but-for your membership in a legally-protected category such as your gender, race, religion or national origin.

New Jersey Family Leave Act Amended Again

May 15, 2020 | by Elliot M. Baumgart

The New Jersey Family Leave Act (“NJFLA”) has been amended yet again, this time in response to the coronavirus epidemic.

Signed into law by Governor Murphy on April 14, 2020, the amendment creates additional reasons why an otherwise eligible employee may use job protected family leave when there is a widespread occurrence of an infectious disease. The amendment is retroactive to March 25, 2020.

In addition to the previous justifications for an employee taking family leave, including so the employee can provide care made necessary by reason of the birth or adoption of a child, or the “serious health condition” of the employee’s family member, the amendment creates a whole new category of circumstances that now qualify as a basis for a job-protected family leave.