Retaliation

Discrimination and Retaliation Claims During the COVID-19 Pandemic

April 6, 2020 | by Jonathan I. Nirenberg

Our New Jersey employment lawyers understand that times are extremely difficult for pretty much everyone right now. But, fortunately, you still have significant rights in the workplace.

Being sheltered in place or quarantined and having to engage in social distancing have become the new normal. The economy has taken an enormous hit, and things that used to be simple like buying groceries and finding supplies like toilet paper and paper towels suddenly have become challenging.

Your Employment Law Rights Are Not on Hold

Employees Cannot Waive Punitive Damages Under New Jersey Law Against Discrimination

September 17, 2018 | by Jonathan I. Nirenberg

A recent unpublished opinion from the New Jersey Appellate Division holds that employees cannot waive in advance their right to recover punitive damages under the New Jersey Law Against Discrimination (“LAD”).

Milagros Roman worked for Bergen Logistics LLC as a human resources generalist. She claims that her immediate boss, Human Resources Director Gregg Oliver, made sexual advances toward her. She further alleges that Mr. Oliver retaliated against her by firing her because she complained about the sexual harassment.

Ms. Roman filed a lawsuit against Bergen and Mr. Oliver, claiming they harassed and retaliated against her in violation of the LAD. The defendants filed a motion to dismiss her case and refer it to arbitration. They relied on the fact that when Bergen hired Ms. Roman, she signed an arbitration agreement that required her to resolve any disputes relating to her employment relationship in binding arbitration rather than in court. That agreement includes a provision which states that: “BY SIGNING THIS AGREEMENT YOU AND COMPANY ARE WAIVING ANY RIGHT, STATUTORY OR OTHERWISE, TO A TRIAL BY JURY AND TO PUNITIVE AND EXEMPLARY DAMAGES.”

New Jersey’s Whistleblower Law Prohibits Retaliatory Transfer to Less Desirable Job

June 1, 2018 | by Jonathan I. Nirenberg

New Jersey’s Appellate Division recently recognized that a transfer to a less desirable job can be actionable retaliation in violation of the state’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”).

Jeffrey Scozzafava worked as a detective in the Somerset County Prosecutor’s Office as an instructor and trainer in the Crime Scene Investigation Unit. He objected about members of the unit improperly collecting evidence. After he made those objections, Somerset County transferred him to its fugitive squad. Det. Scozzafava filed a lawsuit, claiming the County’s decision to transfer him was an act of retaliation in violation of CEPA.

The trial court dismissed Det. Scozzafava’s case, finding the transfer was not an “adverse employment action” because it did not result in any reduction in his position, rank, pay or benefits. Accordingly, it found the transfer was not legally actionable under CEPA, and dismissed the case. Det. Scozzafava appealed.

New Jersey Enacts New Sick Leave Law

May 11, 2018 | by Jonathan I. Nirenberg

New Sick Leave Requirements

Earlier this month, Governor Phil Murphy signed an important new employment law that requires employers to provide paid sick leave to their employees. Specifically, New Jersey’s new paid sick leave law requires employers to provide most employees one hour of paid sick leave for every 30 hours they work. Employers must permit employees to use this earned sick leave for:

The employee’s diagnosis, care, treatment, or recovery from a mental or physical illness or injury, or preventive medical care;

CEPA Prohibits Employer from Retaliating Against Attorney For Refusing to Violate Ethics Rule

August 3, 2017 | by Jonathan I. Nirenberg

On July 25, 2017, the United States Court of Appeals for the Third Circuit recognized that New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”), prohibits an employer form retaliating against a lawyer because he refused to engage in an activity he reasonably believes violates attorney ethics.

Steven Trzaska worked as a patent lawyer for L’Oréal USA, Inc. The company’s French parent company, L’Oréal, S.A., instituted a quota for the number of patents applications each patent team had to reach, and warned employees that if they did not meet their quota “there would be consequences which would negatively impact their careers and/or continued employment.” In 2014, L’Oréal set a quota of 40 patents for Mr. Trzaska’s team. However, Mr. Trzaska and his team did not believe there were 40 patentable products for which they could file patent applications in good faith.

Like all lawyers, Mr. Trzaska is bound by Rules of Professional Conduct (“RPCs”). For example, one such rule established by the United States Patent and Trademark Office (“USPTO”) prohibits patent lawyers from making frivolous or bad-faith patent applications. Likewise, an applicable Pennsylvania RPC prohibits lawyers from making false statements to a court or tribunal such as the United States Patent Office.

Single Racist Remark Can Be Actionable Harassment

July 27, 2017 | by Jonathan I. Nirenberg

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.

The 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.

Employer’s “Honest Belief” Defeats FMLA Retaliation Claim

February 7, 2017 | by Jonathan I. Nirenberg

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.

Frederick 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.