New Jersey Employment Lawyer Blog

Rumors Female Employee Had Affair with Male Superior Can be Sexual Harassment

December 27, 2019 | by Jonathan I. Nirenberg

A recent opinion by New Jersey’s Appellate Division recognizes that false rumors of a sexual relationship between a female employee and a male superior can create a legally actionable hostile work environment.

Jennifer Schiavone is a senior corrections officer for the New Jersey Department of Corrections (“DOC”). In 2013, the DOC assigned Officer Schiavone to work in the Central Control Unit (“Central Control”), which is a desirable job because it does not involve direct contact with inmates.

Shortly after the DOC transferred Officer Schiavone to Central Control, rumors began to spread that she was having an extra-marital affair with a high-level DOC official, “S.D.” Even though Officer Schiavone denied that she was having an affair with S.D., their supposed relationship became the subject of nearly daily conversation at work. For example, on one occasion Officer Julie Houseworth asked Officer Schiavone if she planned to “blow” S.D. Another time, Lieutenant Zsuzsanna Rogoshewski said: “That’s her over there, that’s who’s sleeping with the [high-ranking official],” referring to Officer Schiavone and S.D.

Is it a Bonus or is it a Tip: When Must Payments from Third Parties be Counted When Calculating Overtime Pay?

September 10, 2019 | by Jonathan I. Nirenberg

The Third Circuit recently addressed when a bonus an employee receives from someone other than his or her employer counts toward the employee’s “regular hourly rate” of pay under the Fair Labor Standards Act (“FLSA”).

The FLSA is a federal law that, among other things, requires employers to pay most non-exempt employees time-and-a-half when they work more than 40 hours in a workweek. As a result, the higher the employee’s regular hourly rate, the higher the overtime pay premium the employee is entitled to receive.

The case involves employees of Bristol Excavating Inc., an excavation contractor, who work at sites owned by another company, Talisman Energy Inc. Since the employees work 12 ½ hour shifts every day for two straight weeks, followed by a week off, they routinely work substantial overtime hours.

Appellate Division Narrows But Enforces ADP’s Non-Compete Agreement

August 15, 2019 | by Jonathan I. Nirenberg

On July 26, 2019, New Jersey’s Appellate Division issued a detailed ruling regarding the non-compete and non-solicitation provisions in ADP, LLC’s stock option plan. In the process, the court provided a detailed explanation of how New Jersey courts should analyze restrictive covenants.

The appeal stems from separate cases ADP filed against six of its former sales representatives, Erik Kusins, Ryan Hopper, Anthony M. Karamitas, Nick LeNoble, Michael DeMarco and Daniel Hobaica. They had mixed results at the trial court level. Those cases were consolidated in a single appeal.

ADP has restrictive covenants with most of its sales force. Specifically, most of its sales employees are required to sign agreements that include non-compete and non-solicitation provisions that prohibit them from soliciting any ADP clients who they had contact with at ADP, for 12 months after they stop working for ADP, in the geographical territory in which they worked for ADP.

New Jersey Enacts Powerful New Wage & Hour Law Protections

August 6, 2019 | by Jonathan I. Nirenberg

Today, New Jersey’s Acting Governor Sheila Oliver signed an amendment to New Jersey’s wage and hour laws that makes several extremely important improvements.

The amendment impacts several New Jersey laws, most importantly the Wage & Hour Law (“WHL”) and the Wage Payment Act (“WPA”). The WHL is a statute that requires employers to pay employees who do not fall within an exemption minimum wage ($10 per hour in 2019) and time-and-half when they work more than 40 hours in any particular workweek. The WPA is a law that requires employers to pay employees on time, and typically at least twice per month.

The amendment includes numerous new provisions, all of which go into effect immediately. We have summarized some of the most significant changes below:

Filing with EEOC Not Required for Court to Hear Title VII Lawsuit

July 2, 2019 | by Jonathan I. Nirenberg

Earlier this month, the United States Supreme Court ruled that filing a Charge of Discrimination is not required for a court to have jurisdiction over a lawsuit under Title VII of the Civil of Rights Act of 1964.

Title VII is a federal law that prohibits discrimination based on race, color, religion, sex and national origin. It requires employees to file a Charge of Discrimination with the United States Equal Opportunity Commission (“EEOC”), wait at least 180 days for the EEOC to investigate the claim, and then receive a “Right to Sue” letter before they can file a lawsuit.

Lois Davis worked for Fort Bend County, Texas. She made an internal sexual harassment complaint to the County’s human resources department. After Fort Bend subsequently reduced her job responsibilities, she filed a Charge of Discrimination with the EEOC claiming she was the victim of retaliation for reporting the sexual harassment.

Employer Liable for Injury Caused by Failure to Accommodate Employee’s Disability

June 25, 2019 | by Jonathan I. Nirenberg

The New Jersey Law Against Discrimination (“LAD”) requires employers to provide reasonable accommodations to disabled employees to permit them to be able to continue to perform their jobs.

Ordinarily, an employee who brings a discrimination case under the LAD has to prove the discrimination led to an adverse employment action such as being fired, demoted, or passed up for a promotion. However, in a recent published opinion, Richter v. Oakland Board of Education, New Jersey’s Appellate Division ruled that an employee can recover damages for a physical injury caused by the employer’s failure to accommodate her disability without having to prove she suffered an adverse employment action.

Mary Richter is a science teacher for the Oakland Board of Education at Valley Middle School. During the first marking period of the 2012/2013 school year, her lunch period was scheduled to begin at 1:05 p.m. Ms. Richter has Type I diabetes and believed eating her lunch that late in the day would negatively impact her blood sugar levels. Accordingly, she asked her school’s principal, Gregg Desiderio, to allow her to eat her lunch earlier in the day.

Trial Lawyer Has Apparent Authority to Settle Discrimination Case

June 5, 2019 | by Jonathan I. Nirenberg

A recent decision by New Jersey’s Appellate Division recognizes that, under the doctrine of apparent authority, a company’s attorney can bind it to a settlement whether or not the employer actually authorized him to settle the case.

Jesus Gonzalez filed an employment discrimination lawsuit against his former employer, Electronic Integration Services, LLC, also known as Panurgy OEM. More specifically, he claimed Panurgy fired him in violation of the New Jersey Law Against Discrimination (“LAD”), the Family & Medical Leave Act (“FLMA”) and the New Jersey Family Leave Act (“NJFLA”).

Shortly before a trial, Panurgy’s lawyer conveyed an offer to settle the case for $175,000. Mr. Gonzalez accepted the offer, and the judge placed the terms of the settlement on the record.

Termination Three Weeks After Medical Leave Supports Disability Discrimination Claim

May 1, 2019 | by Jonathan I. Nirenberg

A recent decision by New Jersey’s Appellate Division demonstrates that under the right circumstances an employee can prove disability discrimination from the fact that her employer fired her shortly after she had surgery.

Ada Caballero worked for Cablevision Systems Corporation for 15 years. In 2013, she was divorced. A few months after her divorce was finalized, Ms. Caballero submitted a copy of the divorce judgment to the company’s human resources department. However, Cablevision did not remove her ex-husband from its health insurance plan.

On Ms. Caballero’s 2014 performance evaluation, Cablevision gave her a rating of “strong performance.”

Close Enough? Who is “Similarly Situated” Under New Jersey Law Against Discrimination?

April 17, 2019 | by Jonathan I. Nirenberg

A recent decision by the Third Circuit Court of Appeals helps clarify who is a “similarly situated” employee in discrimination cases under the New Jersey Law Against Discrimination (“LAD”). This is important since one way to prove discrimination is by showing the employer treated other similarly situated employees more favorably than the employee who is claiming he or she was the victim of discrimination.

Santos Andujar worked for General Nutrition Corporation (“GNC”) as a store manager for 13 years. After failing the company’s Critical Point Audits four years in a row, he received a failing score through the company’s Performance Evaluation Process (“PEP”). On the day Mr. Andujar received his failing PEP score, GNC placed him on a “Red Store Action Plan” which gave him days to improve his job performance. Approximately one month later, the company fired him for failing to meet the Action Plan. GNC replaced Mr. Andujar, who was 57 years old, with someone in his twenties. Mr. Andujar then filed a lawsuit alleging that GNC had engaged in age discrimination in violation of the LAD.

The case went to trial. GNC argued that it fired Mr. Andujar because of his poor performance and not because of his age. However, Mr. Andujar presented evidence that five other store managers between 25 and 34 years old had failing PEP score, but GNC did not put any of them on an Action Plan, let alone fire them.

New Jersey Employers Can’t Discriminate for Medical Marijuana Use Outside of Work

April 1, 2019 | by Jonathan I. Nirenberg

A recent decision by New Jersey’s Appellate Division recognizes that an employer can violate the New Jersey Law Against Discrimination (“LAD”) if it discriminates against a disabled employee because he uses medically prescribed marijuana to treat a disability outside of the workplace.

Justin Wild worked as a licensed funeral director for Carriage Funeral Holdings, Inc. (“Carriage”). Mr. Wild has cancer. Pursuant to New Jersey’s Compassionate Use of Medical Marijuana Act, Mr. Wild has been prescribed marijuana to help with the associated pain. The Compassionate Use Act decriminalizes the use of marijuana for certain medical reasons including pain relief for individuals with cancer.

In 2016, while working for Carriage, Mr. Wild was in a car accident and had to be taken to the emergency room. He was prescribed pain medication and released from the hospital the same day. At home, Mr. Wild took the pain medication and used medical marijuana.