employment law

Court Reinstates Employee’s Retaliation Lawsuit, Finding Employer Could Have Identified Her as Anonymous Whistleblower

October 23, 2023 | by Jonathan I. Nirenberg

A new decision from New Jersey’s Appellate Division recognizes that an employer can be liable for retaliating against an employee who filed an anonymous whistleblower complaint if the evidence supports the inference that it could have realized she was the one who filed the complaint.

For 14 years, Carol Smith worked for Konica Minolta Business Solutions (“KMBS”), primarily as a sales representative. In 2018, Ms. Smith reported to her supervisors that over a million dollars of equipment had been shipped to a warehouse, and KMBS had recorded it as installed and paid employees a commission for selling that equipment, but the equipment actually remained in the warehouse and KMBS was improperly using it as collateral for bank loans.

Ms. Smith’s supervisors failed to address her complaint, and instead began harassing her. Accordingly, she eventually reported the fraudulent activity anonymously, through KMBS’ employee whistleblower hotline.

New Jersey Court Analyzes Time Off as Reasonable Accommodation for Disability

October 11, 2023 | by Jonathan I. Nirenberg

Under the New Jersey Law Against Discrimination (“LAD”), time off can be a reasonable accommodation for a disability as long as the time off sought is reasonable. A recent decision from the District of New Jersey provides a good example of how Courts analyze this issue at the early stage of a case, as well as a dispute about the employee’s ownership interest in the business.

Michaela Wark worked for J5 Consulting, LLC as a senior consultant in New Jersey. In June 2020, Michael Johnson, who is the Chief Executive Officer and an owner of J5, told Ms. Wark that he was promoting her to a Partner of J5 and making her a 5% owner of the company.

Mr. Johnson provided Ms. Wark a letter confirming her promotion and 5% ownership, which states that she would lose her ownership rights if she was “fired for gross negligence or misconduct.” The letter also say Ms. Wark “must be employed by the company six months prior to sale for the rights of ownership to apply.”

Supreme Court Makes it Easier to Receive Accommodations for Religious Beliefs

July 11, 2023 | by Jonathan I. Nirenberg

Last month, the United States Supreme Court made it easier for employees to prove a claim that their employer failed to accommodate an employee’s religious beliefs under Title VII of the Civil Rights Act of 1964.

Gerald Groff worked for the United States Postal Service (“USPS”). Mr. Groff is an Evangelical Christian whose religious belief is that Sunday should be a day for worship and rest, rather than for work or transporting worldly goods.

Initially, Mr. Groff’s job as a Rural Carrier Associate generally did not require him to work on Sundays. However, in 2013, after USPS entered into an agreement with Amazon, it began requiring employees to make Sunday deliveries. Accordingly, Mr. Groff requested a transfer to another location that did not make deliveries on Sundays.

Working Through Independent Business Not Enough to Make Employees into Independent Contractors

August 3, 2022 | by Jonathan I. Nirenberg

Yesterday, the New Jersey Supreme Court clarified the “ABC test” used to determine if a worker is an employee or an independent contractor. Specifically, it made it clear that just because someone works through their business is not enough to make them an independent contractor.

The case began with a random audit by the New Jersey Department of Labor (“DOL”). The DOL found 16 employees had been misclassified as independent contractors. On appeal, East Bay Drywall (“East Bay”) contested that 11 of them were employees.

The ABC test applies to determine if a worker is an employee or an independent contractor for purpose of several specific laws, including New Jersey’s unemployment compensation law, Wage Payment Act, Wage and Hour Law. Under it, a worker is an employee unless the company he or she worked proves all three of the following:

No Protection to Employee Fired for Racist Remarks on Facebook

May 24, 2022 | by Jonathan I. Nirenberg

A recent opinion by New Jersey’s Appellate Division finds that an employee cannot bring a retaliation claim against a private employer for firing her for posting racially insensitive statements on Facebook.

Heather J. McVey was a Corporate Director of Customer Service for AtlantiCare Medical System Incorporated and Geisinger Health System Incorporated. Ms. McVey was an employee at-will, meaning AtlantiCare had the right to fire her for any reason, or for no reason at all, as long as it did not violate the law.

During the protests following the murder of George Floyd, Ms. McVey engaged in a discussion on Facebook about the Black Lives Matter movement. She expressed her opinion that Black Lives Matter is “racist” and “causes segregation,” and that Black citizens were “not dying” but rather “killing themselves.” Ms. McVey identified herself on her Facebook profile as a Corporate Director at AtlantiCare.

Police Captain Can Pursue Harassment in Retaliation for Objection to Illegal Arrest Quota System

April 14, 2022 | by Jonathan I. Nirenberg

A recent decision from New Jersey’s Appellate Division recognizes it can be retaliation in violation of the Conscientious Employee Protection Act (“CEPA”) for a police department to harass one of its members because he objected to a new policy he reasonably believed is an illegal arrest quota system.

Calvin Anderson has been a member of the East Orange Police Department for over 20 years. His supervisor, Anthony Cook, instituted a “productivity improvement system” that Anderson believed violated a New Jersey law that prohibits police departments from instituting arrest quota systems. Anderson, who was a lieutenant at the time, complained about the productivity improvement system and refused to implement it.

Anderson filed a lawsuit against the Department and Cook, alleging they retaliated against him in violation of CEPA. He claims Cook retaliated against him by investigating him for neglect-of-duty regarding his supposed failure to complete an accident-reconstruction report. Even though the investigating officer concluded Anderson did nothing wrong, Cook then filed a complaint to the Internal Affairs Department about the same incident. In addition, Cook required Anderson to increase his productivity in terms of stops and arrests in a crime zone, and issued him a written warning notice for failing to do so. Cook also threatened to bring neglect-of-duty charges against Anderson for failing to file an incident report about another officer, even though doing so was the responsibility of a sergeant. In addition, Cook ordered another captain to investigate Anderson, and threatened to issue a written warning to Anderson, for failing to report to a lineup for a July Fourth celebration. Likewise, Cook berated Anderson in front of the mayor for supposedly neglecting his duty and wasting taxpayer dollars, and frequently assigned him to the midnight shift, which prevented him from working traffic details, which Anderson claims caused him to lose $10,000 to $12,000 in compensation.

New Law Bans Forced Arbitration of Sexual Harassment and Assault Claims

March 4, 2022 | by Jonathan I. Nirenberg

Arbitration is widely believed to favor big business over individuals. I have written numerous articles about forced arbitration, including cases that enforced arbitration of employment law claims, and ones that overturned such provisions. In my law practice, I have fought against forced arbitration on many occasions.

Yesterday, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 into law. As its name suggest, this law now prohibits forced arbitration of sexual harassment and sexual assault claims. The law received bipartisan support in Congress, a rare feat in the current political climate.

The new statute deems that a person who files a case in which he or she alleges sexual harassment or sexual assault cannot be forced to be bound by an arbitration agreement or class or collective action waiver that he or she entered into before the dispute arose. However, the person asserting the sexual harassment or assault still can chose to enforce an arbitration agreement. Likewise, parties still can agree to enter into arbitration agreements after a dispute involving sexual harassment or sexual assault if that is their preference, and either party can enforce such an agreement.

New York State Finally Enacts Broad Whistleblower Law

November 22, 2021 | by Jonathan I. Nirenberg

On October 28, 2021, New York Governor Kathy Hochul signed in law an amendment to New York’s Whistleblower law, Labor Law Sections 740 and 741.

Prior to this amendment, New York’s Whistleblower Law has been very narrow and provided very limited protection. That will change when the amendment goes into effect on January 26, 2022.

New Protected Activities

Court Must Reconsider Whether Sexual Harassment Victim Agreed to Arbitration

November 12, 2021 | by Jonathan I. Nirenberg

A recent decision by New Jersey’s Appellate Division makes it clear that a court must have clear proof an employee agreed to arbitration before an employer can force an employee to arbitrate her case.

Nikki Cordero applied for a job with Fitness International, LLC, also known as LA Fitness International. A few days later, LA Fitness interviewed Ms. Cordero and offered her the position.

On Ms. Cordero’s first day of work, the Gym’s General Manager, Ryan Farley, had her electronically sign a series of documents that he said she needed to sign before she could start her training. According to Ms. Cordero, she did so without seeing what she was signing.

New Jersey Law Amended to Increase Protection Against Age Discrimination

October 14, 2021 | by Jonathan I. Nirenberg

Older worked forced to retire

New Jersey has an extremely broad anti-discrimination law, the New Jersey Law Against Discrimination (“LAD”). The LAD became even broader last Tuesday, October 5, 2021, when Governor Phil Murphy signed into law a new amendment that increases the statute’s protections against age discrimination by removing several loop holes and exceptions.

More specifically, the amendment makes four changes to the LAD: