New Jersey Employment Lawyer Blog

Not too much is new in employment law, but New Jersey's Family Leave Insurance Law just went into effect. Employees in the State of New Jersey can now apply for six weeks of paid leave to care for sick relative or bond with a newborn or adopted child.

If you are a New Jersey employment lawyer representing employers it would probably be a good idea to suggest that your clients update their employment manuals to reflect the recent changes in the law.

Employees are still entitled to 12 weeks of time off under the New Jersey Family Leave Act, except that 6 of the weeks may be paid under the New Jersey Family Leave Insurance Law.

The United States Supreme Court ruled that employees filing age discrimination cases under the Federal Age Discrimination in Employment Act (ADEA) have the full burden of showing that age was the deciding factor in an age discrimination case brought under the act. The Supreme Court in Gross v. FBL Financial Services, deviated from long-standing employment law jurisprudence, which required an employer to show that it had a legitimate basis for a termination or layoff if the employee first showed that age was a factor in the employer's decision to layoff, or terminate the employee. The Court relied on specific language in the ADEA. The law states that it bars discrimination "because of" an employee's age.

New Jersey has it's own laws prohibiting age discrimination. The New Jersey's Law Against Discrimination prohibits employment discrimination based on an employee's age. New Jersey courts often look to federal law for guidance in interpreting New Jersey employment laws. It should be interesting to see how this case impacts New Jersey's employment laws. New Jersey employment lawyers representing employers will most likely argue that the decision should be applied to New Jersey's Law Against Discrimination.

New Jersey employment lawyers representing employees and employers will need to take a look at the Third Circuit's recent ruling in Huston v. Proctor & Gamble Products Corporation.

The court recently ruled that in a case where the hostile work environment is created by a victim's non-supervisory co-workers, an employer is not automatically liable for hostile environment sexual harassment under the Civil Rights Act of 1964. The court stated that employer liability for co-worker harassment exists only if the employer failed to provide a reasonable avenue for complaint. Alternatively, liability can be established if the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action. Employers have constructive notice of co-worker harassment under the Civil Rights Act of 1964 if the harassment is pervasive and open that a reasonable employer would have had to be aware of it.

The court further stated that there are two circumstances in which an employee's knowledge of allegations of coworker sexual harassment may be imputed to the employer. The first circumstance is where the employee is sufficiently senior in the employer's governing hierarchy, or otherwise in a position of administrative responsibility over employees under him, such as a departmental or plant manager, so that such knowledge is important to the employee's general managerial duties, and second, where the employee is specifically employed to deal with sexual harassment.

The Third Circuit ruled that supervising technicians are not "management level" employees under the Civil Rights Act. The court further ruled that their knowledge of allegations of co-worker sexual harassment cannot be imputed to the employer. The court noted that the employer's managers were salaried and had authority to hire and discipline whereas the supervising technicians were hourly employees. Moreover, the supervising technicians and did not have authority to hire or discipline.

I am happy to announce that my firm Krenkel & Krenkel, LLC, along with co-counsel, the Gardner Law Firm, Lankenau & Miller, LLP and Margolis Edelstein, recently settled a class action lawsuit for $475,000.00 against Foxtons, Inc., a discount real estate brokerage firm located in West Long Branch, New Jersey. The complaint was filed in the United States Bankruptcy Court and alleged that Foxtons terminated 350 employees without sufficient warning. The lawsuit alleged that Foxtons violated the Worker Adjustment and Retraining Notification Act, 29 U.S.C. 2101, et seq. (WARN Act). In certain circumstances, the WARN Act requires an employer to give 60 days notice in advance of a plant shutdown or mass layoff.

A New Jersey employment lawyer representing the employee was dealt a big victory on Tuesday. The Superior Court of New Jersey, Appellate Division, reversed a no-cause verdict in a whistleblower case brought under New Jersey's Conscientious Employee Protection Act (CEPA). The Appellate Division ruled that the trial court should have been bifurcated the case and that after-acquired evidence of the employee's wrongdoing should not have been presented to the jury while it was considering liability. The Appellate Division reasoned that the after-acquired evidence should not have been presented to the jury during the liability stage of the case due to the possible prejudicial effect. In Redvanly v. Automated Data Processing, A-4082-06, the New Jersey Appellate Division granted a new trial to an employee who was let go three weeks after allegedly telling her supervisor that she intended to disclose in an upcoming internal control audit that ADP had overbilled clients, manipulated quality-survey scores and engaged in other improper conduct. The net result of the opinion is that the trial court cannot allow the jury to hear the after-acquired evidence during the liability stage of the trial.

The New Jersey court's ruling will likely increase pre-trial motions by New Jersey employment lawyers seeking to bifurcate whistleblower case where the defense alleges after-acquired evidence as a defense. Under federal and New Jersey state law, an employer may be able to prevent an employee from seeking economic damages if the employer can prove that it discovered evidence on the employee after the employee was terminated that would have caused the employer to terminate that employee. An employer invoking the after-acquired evidence defense must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds if the employer had known of it at the time of the discharge.

The Appellate Division did not rule whether the trial court could allow the after-acquired evidence to be presented at the damages stage of the trial. The Appellate Division ruled that the trial court should be guided on this issue in accordance with its opinion.

New Jersey employment laws, and federal laws, may require that an employer grant an employee's requests for religious accommodations. Many employees are unaware that they may be entitled to reasonable accommodation based on their religious beliefs. Likewise, many employers fail to realize that they may be required to grant an employee a reasonable accommodation based on their religious beliefs.

A Linden based refinery just settled a religious discrimination lawsuit brought by the federal Equal Employment Opportunity Commission on behalf of a worker who was required to work Sundays for two months in 2006. Maybe the company failed to seek the advice of a New Jersey employment lawyer before making the employment decisions in this case. The Linden based refinery, ConocoPhillips, had been accused of discriminating against a pipe fitter at the refinery. The complaint alleged that the company refused the employee's request for a religious accommodation. The employee, a deacon and lay leader of his congregation, was told by the company that he would have to miss his Sunday services for two months because he was required to work Sundays.

The EEOC stepped in and took the position that the failure to accommodate the employee violated Title 7 of the Civil Rights Act of 1967. There is a section in the statute which prohibits religious discrimination. The stature requires employers to make reasonable accommodations for an employee's good faith religious beliefs, so long as the request does not pose an undue hardship in the employer.

The New Jersey Law Against Discrimination is a state law which provides similar protections for an employee's religious beliefs in the State of New Jersey.

I recently read an article on how firms handle layoffs. The article made the point that there is no uniform procedure amongst employers for laying off employees. Employers are often puzzled when faced with the dilemma of having to engage in a mass layoff, whether it's 5, 50 or 500 employees. So what does an employer do?

In New Jersey, employment lawyers are quite busy these days fielding calls and providing advice on how to handle layoffs. As a preliminary matter, all employers have to be mindful of the WARN Act which imposes penalties and civil liability for failing to give proper notice for a mass layoff. New Jersey has it's own version of the WARN Act which employers must review before laying off employees. But assuming notice is not required under state and federal law, should an employer give notice to the employees. The answer is really up to the employer. This is not an easy question because the employer runs the risk that the service and dedication to the company will not be there if the employee knows that he or she is being terminated. Some employers feel the moral obligation to let the employees know as soon as possible that here jobs at risk. This is where the severance package becomes a useful tool for the employer. An employer can reduce the risk of litigation substantially by offering a severance package and also accomplish the task of compensating the employee for not being able to provide advance notice of the layoff, even if the notice was not legally required, but was more of a moral requirement.

Under N.J.S.A. 18A:66-40(a), a school district must return a formerly disabled teacher to the next available opening in the position that he or she held at the time of the disability retirement, so long as the teacher meets the standards set by the State Board of Education for that position, i.e., a valid teaching certificate and endorsements.

Does this standard apply even if the teacher went out over twenty years ago for alcoholism? In New Jersey, the answer is yes. The New Jersey employment lawyer representing the teacher was successful in getting the New Jersey Supreme Court to rule that a teacher that went out on leave for alcoholism dependency over 20 years ago must be reinstated because the Teachers Pension Annuity Fund found her sufficiently recovered to return to teaching. See Klumb v. Board of Education of the Manalapan-Englishtown School District. The New Jersey Supreme Court ordered the Manalapan-Englishtown Regional School District to rehire her.

I think most New Jersey employment lawyers will agree that this was a tough case for the teacher's lawyer. New Jersey has some of the most liberal employment laws and this case makes the point.

On April 29, 2009, the Township of Teaneck agreed to pay a total of $4.9 million to a former policeman and a former fireman who claimed they were retaliated against for testifying in harassment suits brought by co-workers. The payment includes attorney fees for the New Jersey employment lawyer that represented the plaintiffs.

John Shouldis, an officer that left the police department in 2005 on disability, had claimed that he was denied promotions, threatened with dismissal and placed on midnight road patrol after his 2000 testimony in a sexual-harassment suit by officer Diane Mancini against Police Chief Donald Giannone and Capt. Warren White. Mancini won a $1.5 million verdict. In the retaliation case, Shouldis prevailed at trial and obtained a $4.1 million verdict. The New Jersey employment lawyer representing Shouldis sought $2.5 million in fees and costs. The council for the Township of Teaneck approved a $4.7 million settlement of all claims.

The second retaliation case settled for $200,000.00. Matthew Vogelman, who resigned as a fireman in 2007, claimed that he was denied medical leave and was subject to unfair discipline and increased scrutiny of his work after he testified in the harassment suit of former fireman Bill Brennan, a case that settled for $800,000 in 2005.

The Appellate Division dealt New Jersey employment lawyers representing plaintiffs a blow today. The Division ruled today that that an at will casino employee terminated because of bad publicity associated with his co-employee's illegal acts does not state a cause of action for wrongful discharge under New Jersey employment law.

A casino employee in Atlantic City admitted to the Casino Control Commission that he conducted illegal surveillance as a security/surveillance employee while working for the Caesar's Palace Casino in Atlantic City. The illegal surveillance involved the use of the "eyes in the sky" cameras to ogle women in the casino. The plaintiff, another employee that worked in the same department of the wrongdoer, did not admit to the illegal conduct but was fired because of the bad publicity associated with the case before the casino control commission. . Does he have a case for wrongful discharge? Not according to the New Jersey Appellate Division. A New Jersey employment lawyer filed a lawsuit on behalf of the plaintiff for wrongful discharge in violation of New Jersey public policy laws. The plaintiff also field a claim for false light based on comments made by the Casino to the press. The New Jersey Appellate Division ruled that the plaintiff's false light claim was rooted in defamation, and therefore, must be dismissed because the lawsuit was not filed within the one-year statute of limitations. The Appellate Division also booted the public policy claim holding that the employee was at will and the Casino had every right to terminate the employee because it believed he was not performing his job.

I recently read an article on CNN that addressed the issue of a bad boss. As a New Jersey employment lawyer I have the distinct pleasure of hearing numerous friends tell their tales of a bad boss in the workplace, usually these tales are presented to me over the course of a dinner after a 10 hour day at the office. What better time? I am, of course, the sounding board and take it well. I suspect that most of the tales are told to me with the hope that someday I will look one of my friends in the face and tell them that their mean and belligerent boss can absolutely be sent to hell and never return. Here, I have the statute that regulates such conduct in my back pocket and it specifically states that bad bosses must go to hell - period.

OK, I guess you figured out that I am not serious. Well, contrary to what most employees think, there really isn't much that can be done about the bad boss. New Jersey employment laws generally do not protect employees from a bad boss. However, the employment laws in New Jersey protect employees from discriminatory conduct such as harassment. Discrimination needs to be based on a classification such as race, gender, age, religion, etc. General harassment claims are really not protected under New Jersey employment law. There are some claims that may be so egregious that an employee may state a claim for intentional infliction of emotional distress, but it is a rare day that a court will uphold such a claim. The point I am making is that the "bad boss" claims are not good claims unless you have a claim for discrimination. And, a bad boss is not necessarily the same as a discriminatory boss.

While it is true that a bad boss can generally harass an employee with no fear of legal repercussions, this does not mean that an employee cannot inform the company's human resources department. In my experience, most human resources take complaints of a bad boss seriously, even though the complaint may not rise to the level of discrimination prohibited under law. Employees are not without recourse to present their grievances; they just don't have the backing of the law to sue the employer.

A plaintiff was awarded close to 500K by a federal judge becuase she was rejected from a position with the Library of Congress while undergoing a gender change from a man to a woman.

The plaintiff, Diane Schroer, applied for the position of terrorism analyst job. At the time she applied she was still a man. He was offered the job. However, the offer was pulled after he made public the fact that he was changing his gender.

The ruling was for $491,190, which included payment for backpay. The employment lawyer for the Library of Congress, and the employment lawyer for the Justice Department, argued that discrimination based on transsexuality was not illegal sex discrimination under the language of the Civil Rights Act.

This should be an interesting case to follow on appeal to see if the gender identity claim holds up. Many employment lawyers in New Jersey are of the opinion that the Title VII Civil Rights Act does not protect employees that claim gender identity discrimination. In New Jersey, an employment lawyer can allege gender identity discrimination claims on behalf of the client under the New Jersey Law Against Discrimination.

New Jersey employment lawyers representing the Department of Corrections were successful in getting a same-sex harassment case dismissed because the employer followed and enforced its own policies and procedures for preventing sexual harassment in the workplace. New Jersey employment laws allow an employer to assert the affirmative defense that the employer took prompt and effective action in response to a complaint of discrimination.

In Valentine v. Department of Corrections, App. Div. (per curiam), the Plaintiff appealed a summary judgment dismissal of his hostile work environment, same-sex harassment complaint against Defendants, the New Jersey Department of Corrections (DOC). Plaintiff is employed as a senior corrections officer with the DOC. The Plaintiff was assigned to Southwoods State Prison. From 2001 to April 2004, the Plaintiff was assigned to the same area of the prison as Robert Stanley, a licensed social worker employed by Correctional Medical Services (CMS). The Plaintiff and Stanley interacted on a daily basis. The Plaintiff is heterosexual. He alleged that Stanley, a homosexual, routinely referred to him as a "bitch." The Plaintiff filed a formal complaint with the DOC's Equal Employment Division. The Division found that Stanley's remarks did not violate the DOC's sexual harassment policy. Nevertheless, the case was referred to CMS for corrective action. The New Jersey Appellate Division found that it is undisputed that the DOC followed and enforced its own policy and procedures. The Appellate Division ruled that the Plaintiff failed to present a prima facie case of negligence in instituting and implementing an effective anti-sexual harassment policy.

This case is a great example demonstrating how an employer can insulate itself from liability in a sexual harassment case when it has effective policies and procedures for handling discrimination complaints.

In a recent ruling a New Jersey employment lawyer representing the employee was successful in reversing a New Jersey trial court in an age discrimination case brought by a 73 year-old employee under New Jersey employment law.

The New Jersey Appellate Division recently ruled that the New Jersey Law Against Discrimination ("LAD") protects an individual over the age of 70. In a case where the employer failed to renew the contract of a 73 year-old non-faculty employee at the Mercer Community College, the College defended the case based on the specific language contained within the NJ LAD which states that an employer cannot be liable for failing to promote or hire an individual over the age of 70. The College contended that it simply did not "hire" the employee when the contract came up for renewal. The trial court agreed with the College. The case was thrown out on summary judgment at the trial level.

The employee's counsel, a New Jersey employment lawyer, appealed and the New Jersey Appellate Division reversed. The New Jersey Appellate Division noted that the non-faculty employee was hired pursuant to three-year renewable contracts. Finding that that the non-renewal of the employee's contract was the functional equivalent of discharging the employee, the New Jersey Appellate Division reversed and reinstated the employee's claim for age discrimination under the NJ LAD. The Court stated that an employee irrespective of his or her age may bring a discharge case based on age discrimination under the NJ LAD. Because the Court found that the non-renewal of the employee's contract was the functional equivalent of a termination, the NJ LAD did not bar the employee's claim.

Employment lawyers can prove a case of discrimination even though an employee is granted all of his or her allotted time under the Family Medical Leave Act.

A former employee with United Airlines was handed a 3 Million dollar verdict from a jury in Denver, Colorado. The jury found that the company retaliated against the employee for complaining about acts of discrimination. New Jersey employment lawyers, and human resource professionals in New Jersey, should play close attention to this case because the legal standards point out that a company can still be liable for discrimination even though it grants an employee all of his or her allotted time under the Family Medical Leave Act.

Plaintiff lost her job as a ramp-services supervisor in March 2006. She had been employed by the company for 12 years. The plaintiff has a disabled 3 year old son. The plaintiff requested alternative jobs in 2005 when she anticipated complications with her pregnancy. The plaintiff contended that the request was denied. Her son was born 11 weeks premature.

The plaintiff had utilized all of her family medical leave, vacation time and sick leave. She then requested unpaid leave but was denied. The company instructed the plaintiff to return to work in March 2006. The plaintiff did not return to work and was fired. The plaintiff alleged in her discrimination lawsuit that the company frequently granted approval on requests for unpaid leave from males in similar positions. The company defended the case by claiming that there was a shortage of ramp supervisors and could not accommodate her request. The company contended that it could not keep the plaintiff's position open. The jury decided that the plaintiff was retaliated against because of her complaints of discrimination but not because she was a woman.

Although the plaintiff prevailed on her retaliation claim, and not the gender discrimination claim, the plaintiff could have prevailed on her gender discrimination claim if the jury believed that she was not treated in the same manner as the male employees when deciding whether to grant unpaid leave to an employee after they exhaust all of their allotted time under leave under the Family Medical Leave Act.

New Jersey also has its own family leave act which is known as the New Jersey Family Leave Act. The New Jersey Family Leave Act has anti-retaliation provision similar to the Federal Family Medical Leave Act.