Articles Tagged with employment law

In a recent ruling, the Third Circuit Court of Appeals concluded that an arbitration agreement did not prohibit an exotic dancer from pursuing her overtime and minimum wage claims in court.

Exotic Dancer Can Bring Wage and Hour Claim in CourtAlissa Moon worked at the Breathless Men’s Club, which is in Rahway, New Jersey.  The Club treated her as an independent contractor, rather than an employee.  In fact, she had to agree to rent space from the Club where she could perform, and signed an “Independent Dancer Rental Agreement” which expressly states that she is an independent contractor.

That agreement also includes the following arbitration provision:

The Third Circuit Court of Appeals recently recognized that a supervisor’s single use of a racial epithet can be enough, on its own, to create a hostile work environment under federal law.  This is consistent with longstanding president under both the New Jersey Law Against Discrimination and the New York State Human Rights Law.

Racial Harassment Based on Single Discriminatory RemarkThe case was brought by Atron Castleberry and John Brown, both of whom worked as laborers for Chesapeake Energy Corporation through a staffing-placement agency, STI Group.  Mr. Castleberry and Mr. Brown are African American.

Mr. Castleberry and Mr. Brown allege they were exposed to racist behavior at their job.  For example, they claim that someone wrote “don’t be black on the right of way” on the sign-in sheet several different times. They also indicate that, despite having more experience working on pipelines, Chesapeake did not permit them to work on pipelines other than to clean them.

Earlier this week, the New Jersey Supreme Court clarified how to determine whether an employer fired an employee because of a disability in violation of the New Jersey Law Against Discrimination (“LAD”).

Nurse wins appeal in disability discrimination caseMaryanne Grande, RN, worked for Saint Clare’s Health System for approximately 10 years.  During that time she suffered four separate work-related injuries that required her to take significant time off and led to additional periods during which she only could work light duty.

In February 2010, while moving an obese patient from a stretcher to a bed, Ms. Grande had to grab the patient to prevent him from falling.  She injured her cervical spine and needed surgery which required over four months of recovery and rehabilitation.  When she finally returned to work she had to work light duty for several weeks.

The Third Circuit Court of Appeals recently ruled that the mixed-motive proof pattern can apply to cases under the Family & Medical Leave Act (“FMLA”) even if there is no direct evidence of retaliation.  Under that proof pattern, the employer has the ultimate burden to prove it did not engage in unlawful discrimination or retaliation.

Employee with migraine headache needs FMLA leave.
Joseph Egan began working for the Delaware River Port Authority in July 2008 as a Project Manager for Special Projects.  In March 2012, the Port Authority transferred him to its Engineering Department on a special assignment for an unspecified period of time.

Mr. Egan suffers from migraine headaches, which became much more frequent after he started working in the Port Authority’s Engineering Department.  As a result, he requested an intermittent FMLA leave.  The Port Authority granted his request.

Unemployment Insurance BenefitsEarlier this month, in a precedent-setting opinion, New Jersey’s Appellate Division ruled that the unemployment insurance benefits a former employee receives after being fired do not reduce the amount of lost wages the employee can recover in an employment discrimination lawsuit.

Rex Fornaro worked as a flight instructor for Flightsafety International, Inc.  After Flightsafety fired him, he brought a disability discrimination and retaliation lawsuit against it under the New Jersey Law Against Discrimination (“LAD”).

After a trial, a jury concluded that Flightsafety had discriminated against Mr. Fornaro because he is disabled and because he requested a reasonable accommodation for his disability.  The jury awarded him $83,000 in past economic damages (“back pay”), but did not award him anything for his alleged emotional distress.  A judge subsequently awarded Mr. Fornaro’s lawyers a total of approximately $380,000 in attorneys’ fees and costs.

Last week, the Third Circuit Court of Appeals ruled that an employee cannot establish a retaliation claim under the Family & Medical Leave Act (“FMLA”) if his employer honestly believed he abused his right to take time off under the FMLA.

Employer's Mistaken Belief Defeats FMLA Retaliation ClaimFrederick Capps worked as a mixer for Mondelez Global, LLC.  Mr. Capps suffers from Avascular Necrosis, a condition involving a “loss of blood flow, severely limiting oxygen and nutrient delivery to the bone and tissues, essentially  suffocating and causing death of those cells.”  As a result, Mr. Capps has arthritis in both hips and had double hip replacement surgery in 2004.  He also periodically experiences severe pain that can last for weeks.  Accordingly, he requested and Mondelez granted him an intermittent FMLA leave, meaning he could take time off when it was medically necessary.

On February 14, 2013, while he was on an FMLA leave, Mr. Capps went to a local pub for dinner and drinks.  On his way home, he was arrested for drunk driving.  He was released from jail the next morning, Friday, February 15, and took that day off as FMLA leave.  He returned to work on Monday, February 18.

A recent published opinion from the New Jersey Appellate Division recognizes that although the New Jersey Law Against Discrimination (“LAD”) requires employers to provide reasonable accommodations for employees’ sincerely held religious belief, that requirement does not apply when the accommodation would impose an undue hardship on the employer.

Camden County Correctional FacilityLinda Tisby began working for the Camden County Correctional Facility (“Camden”) in 2002.  In 2015, she began practicing the Sunni Muslim faith.  In May 2015, she came to work wearing a Muslim khimar, which is a tight fitting head covering, but without a veil.  However, Camden has a policy regarding uniforms which prohibits employees from wearing any hats other than the ones issued by their departments.  Accordingly, Ms. Tisby’s supervisor told her she was violating Camden’s uniform policy, and could not work unless she removed her khimar.  When Ms. Tisby refused, her supervisor sent her home.  After this happened three more times, Camden suspended her for two days.

Camden then told Ms. Tisby that it considered her to have requested an accommodation for her religious belief pursuant to the LAD.  But while the employer recognized Ms. Tisby had a sincerely held religious belief, it denied her request on the basis that it would “constitute an undue hardship to the Department to allow an officer to wear head-coverings or other non-uniform clothing.”  Since Ms. Tisby refused to work without wearing her khimar, Camden fired her.

Employees Silenced by Non-Disparagement AgreementsIt has become extremely common, if not standard practice, for employers to include non-disparagement clauses in settlement agreements and severance packages they offer to their former employees.  These provisions prohibit employees from saying anything negative about their former employers.  They are extremely broad, since they prohibit true but negative statements and opinions.  In addition, they typically prohibit employees from saying anything negative not just about the company itself, but also about its current and previous owners, directors, officers, employees, subsidiaries and parent companies.

The unfortunate reality is that many employees who sign severance agreements either have not read the entire agreement or do not understand or appreciate many of its provisions.  Even individuals who realize they are being asked not to say anything negative about their former employers generally have no choice but to agree if they want the severance pay and other benefits that have been offered to them.  Of course, for someone who has recently lost his or her job it can be difficult to reject a severance offer over something like a non-disparagement clause.  As a result, employees regularly agree not to disparage their former employers.

A recent article in the New York Time, Laid-Off Americans, Required to Zip Lips on Way Out, Grow Bolder, indicates that there is a growing backlash against non-disparagement clauses.  For example, it indicates that several prominent Democrat and Republican members of Congress have questioned the widespread use and misuse of non-disparagement agreements.

Contact Information