Jonathan Nirenberg Settles employment law case with Bogota Police DepartmentI am pleased to report that I recently settled an employment law case against the Borough of Bogota, New Jersey for $2.25 million on behalf of my client, Police Officer Regina Tasca. I handled the case with my co-counsel, Catherine M. Elston, Esq.

Our client was the first and only female police officer in the history of the Bogota Police Department. She began working for Bogota in January 2001. Until April 2011 she had a virtually unblemished record.

In May 2011, Bogota suspended her, claiming she was unfit for duty based on an unspecified psychological disability. Bogota subsequently brought disciplinary charges against her, claiming she was not fit for duty and had engaged in misconduct during two incidents in April 2011. Following a 12 day internal disciplinary hearing, the Borough Council voted to terminate her employment, effective October 18, 2012.

Employee Handbook Contiaining Unenforceable Arbitration ProvisionLast week, New Jersey’s Appellate Division ruled that Raymours Furniture Company cannot enforce the arbitration policy in its employee handbook because the handbook expressly states that it is not a contract. As a result, former Raymours & Flanigan employee Grant Morgan can proceed with his age discrimination claim in court rather than in arbitration.

Mr. Morgan alleges he experienced age discrimination in the workplace, and when he complained about it the company instructed him to sign an arbitration agreement or it would fire him. When Mr. Morgan refused to sign the agreement, the company followed through with its threat and fired him.

After Mr. Morgan filed a lawsuit, Raymours asked the court to enforce the arbitration provision in its employee handbook. The trial court denied its motion, and Raymours appealed.

Earlier today, New Jersey’s Appellate Division ruled that an employee is entitled to a trial to determine whether her employer fired her because it incorrectly perceived she was unable to perform her job due to an actual or perceived disability, obesity. The case largely turns on whether the employer’s physician relied on an accurate description of the physical requirements of her job.

New Jersey school sued for disability discriminationBarbara Sheridan worked as a custodian for the Egg Harbor Township Board of Education. Egg Harbor was concerned whether Ms. Sheridan could perform her job based on the fact that she was short of breath and her face was flushed after she performed certain more strenuous job duties. The school district also was concerned that Ms. Sheridan was unable to climb ladders, had trouble climbing stairs, and was a risk that she would injure herself or otherwise performing her job duties.

The school district sent Ms. Sheridan for a fitness for duty exam with an independent physician, who concluded she physically was incapable of performing all of her job duties. Relying on those conclusions, the school board fired Ms. Sheridan.

The Third Circuit Court of Appeals recently recognized that an employee can bring a lawsuit under Title VII against the company where he works, even though he was hired and paid through a staffing firm. Title VII is a federal anti-discrimination law that prohibits employment discrimination based on gender, race, national origin, and religion.

Retail employee experiences race discriminationMatthew Faush was an employee of Labor Ready, a staffing firm. Labor Ready assigned Mr. Faush to work at Tuesday Morning, Inc., a retail business, at one of its stores. His job was to set up display shelves, unload and stock merchandise, remove garbage, and perform other similar tasks. Mr. Faush, who is African-American, claims Tuesday Morning made a racially-motivated accusation that he stole merchandise, subjected him to racial slurs, and fired him because of his race.

Mr. Faush filed a lawsuit against Tuesday Morning, claiming it discriminated against him because of his race in violation of Title VII. The District Court granted summary judgment to Tuesday Morning, finding Mr. Faush was not an employee of the store. Unlike the New Jersey Law Against Discrimination, Title VII protects only employees and not independent contractors.

A New Jersey court recently ruled that a company can be liable for breach of contract, among other claims, when it withdraws a job offer after an employee resigns from his current job based on the new job.

The job offer was made by Onward Search, a staffing company, to an individual named John Kenny. In August 2014, Onward contacted Mr. Kenny to see if he was interested in freelance work for a company called Tandem Seven. Mr. Kenny, a “user experience architect,” indicated he was interested in working on an eight to twelve month project for Tandem at an hourly rate of at least $85 per hour. He subsequently had multiple job interviews with Tandem.

On Thursday, September 17, 2014, Justin Court, a representative of Onward Search, asked Mr. Kenny whether he could accept a job offer on Mr. Kenny’s behalf if Tandem made him an offer. Mr. Kenny told Mr. Court he could do so as long as “everything we discussed was still in place.” They confirmed that Mr. Kenny agreed to a rate of $85 per hour and needed to give his current employer two weeks’ notice of his resignation.

New Jersey’s Appellate Division recently recognized the significance of the “blue wall of silence” to a whistleblower case involving a New Jersey police officer.

The plaintiff, identified as “T.D.,” is a police officer in the Tinton Falls Police Department. In 2008, one of T.D.’s fellow officers reported to the Monmouth County Prosecutor’s Office that a police sergeant had installed a device called a diverter at his home so his personal water use would not be recorded. Instead of investigating the sergeant, the Police Department began an Internal Affairs (“IA”) investigation to determine who had contacted the prosecutor, and then brought disciplinary charges against that officer. When T.D. learned about this he objected to the Department’s decision to discipline the officer who complained, but not to even investigate the sergeant’s apparent crime.

Police Officer whistleblowerIn March 2009, T.D.’s sergeant asked to meet with him outside a local dumpsite, where he told T.D. he should have warned him about the prosecutor’s investigation. T.D. indicated he believed doing so would have unlawfully interfered with the prosecutor’s criminal investigation. During the meeting, the sergeant also made disparaging comments about the officer who initially reported the water diverter, and told T.D. that “everyone should watch their backs.”

In my previous article, Employer Must Provide Job Description So Employee Can Assess Need for Reasonable Accommodation, I discussed a case which addresses an employee’s right to a reasonable accommodation for a disability. The same case also demonstrates the power of direct evidence of discrimination.

Judge Ruling in Disability Discrimination CaseDirect evidence is evidence that directly reflects the employer’s discriminatory motive. For example, it can include a statement by the employer that it fired the employee for a discriminatory reason.

Ordinarily, at a trial the employee has the ultimate burden to prove that a discriminatory factor such as age, race, gender or disability made a difference in the employer’s decision to fire her. However, if the employee can present direct evidence of discrimination, then the employer has the burden to prove it did not discriminate against her.

A recent case out of the District of New Jersey provides a good example both of an employee’s right to a reasonable accommodation for her disability, and the employer’s obligations once an employee requests one.

Penelope Bertolotti worked for AutoZone, Inc. in its human resources department. Ms. Bertolotti suffers from a disability, gastroparesis, an incurable disease that impacts her ability to digest food and beverages. As a result, she wears a pacemaker to help with her digestion.

In October 2012, Ms. Bertolotti took a two week medical leave due to her illness. She returned to work for approximately one week, but then needed to go out on another medical leave.

The United States Department of Labor recently released a formal Interpretation explaining how to determine whether a worker is an employee or an independent contractor under Fair Labor Standards Act (“FLSA”). The FLSA is a federal law which sets minimum wage and overtime pay requirements.

Determining if worker is employee or independent contractorThe Interpretation was written by David Weil, the Administrator of the DOL’s Wage and Hour Division. He explains that an increasing number of employers are misclassifying employees as independent contractors. As a result, many workers are unfairly denied minimum wage, overtime pay, unemployment insurance and other benefits.

As Mr. Weil indicates, the FLSA defines “employer” extremely broadly. It includes anyone the employer “suffers” or “permits” to work for it. Accordingly, “most workers are employees under the FLSA.”

The New Jersey Employment Agencies Act requires employment agencies doing business in New Jersey to register and obtain licenses from the New Jersey Division of Consumer Affairs. Agencies that fail to do so cannot file lawsuits seeking to collect fees or commissions that are owed to them, or to enforce employment agreements with the individuals who work for them. For instance, an unlicensed employment agency cannot sue to enforce a non-compete agreement.

Businesspeople Standing Outside Employment AgencyHowever, a recent case makes it clear that although both employment agencies and temporary help service firms must register with the state, only employment agencies have to obtain licenses.

The case involves Varuna Jothi Uppala, an Information Technology worker who was employed by Logic Planet. Logic Planet agreed to train Ms. Uppala and assign her to work for its clients on temporary assignments. Ms. Uppala was an employee of Logic Planet, which agreed to pay her a salary of $60,000 per year and to provide her health insurance and other benefits.

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