New Jersey Employment Lawyer Blog

This case will impact New Jersey employment lawyers as well employment lawyers practicing in other states. The nearly decade long legal fight over the class action suit alleging sex discrimination at Wal-Mart stores is now before the U.S. Supreme Court. In Wal-Mart Stores v. Dukes, Wal-Mart's petition challenges the class certification of more than one (1 ) million female former and current workers. The petition as filed Wednesday by Theodore Boutrous Jr., a chair of Gibson, Dunn & Crutcher's appellate and constitutional law practice.

In April, the U.S. Court of Appeals 9th Circuit ruled in favor of class certification. The Court agreed with the district court that "it would be better to handle some parts of this case as a class action instead of clogging the federal courts with innumerable individual suits litigating the same issues repeatedly." Boutrous says the certification and the claims for monetary damages violate due process and federal rules of civil procedure, and conflict with other circuits and Supreme Court precedents.

Employment lawyers in New Jersey and other parts of the country will be following this case closely. Sex discrimination suits are actionable in both federal and state courts. In New Jersey these claims are actionable under the New Jersey Law Against Discrimination.

Employment lawyers representing employees in the State of New Jersey saw a victory yesterday when a panel of the New Jersey Appellate Division affirmed a $535,000 verdict to a former Camden public defender who was fired after alleging official corruption.

The court rejected arguments from the city's employment lawyers that the trial courts had erroneously granted summary judgment to Elliot Stomel on a civil-rights claim, wrongly treated him as an at-will employee and should have dismissed his claim for punitive damages under the New Jersey Conscientious Employee Protection Act.

Stomel served as a part-time public defender for Camden from 1982, being reappointed by the mayor and council to one-year terms, until he was denied reappointment in 1999.

Employment lawyers in New Jersey and the rest of Country will be taking note of a recent employment discrimination case from the Third Circuit. The Third Circuit Court of Appeals ruled that a female lawyer cannot sue her firm for sex discrimination if her status as a shareholder and director gives her a percentage of firm profits and the power to participate in firm governance. Alyson Kirleis' four-year court battle with her firm, Pittsburgh's Dickie McCamey & Chilcote, came to an end as the Third Circuit issued a four-page opinion affirming dismissal of her suit. "We cannot agree that Kirleis is a mere employee," Senior U.S. Circuit Judge Jane Roth wrote in Kirleis v. Dickie, McCamey & Chilcote. The Plaintiff's appeal had the potential for breaking legal ground if she had succeeded in establishing that some partners are not considered equal to their colleagues and ought to be allowed to pursue employment-discrimination claims such as suing for equal pay.

The Plaintiff was represented by Friedman & Friedman. The Defendant was represented by Jackson Lewis.

Employers are not permitted to discriminate on the basis of age when deciding whether to extend the contracts of workers over age 70, the New Jersey State Supreme Court held Tuesday. An exception to the Law Against Discrimination which allows a company to refuse to hire septuagenarians -- does not apply to contract nonrenewals, the Court held in Nini v. Mercer County Community College, A-13/14-09. The New Jersey Supreme Court agreed with a published opinion that said that for purposes of the exception, contract nonrenewal is the equivalent of termination, which cannot be based on age. Justice Virginia Long said if the LAD did not protect contract renewals, the resulting loophole would effectively create a two-tiered system giving fewer rights to long-term contract employees than to new, at-will employees.

The New Jersey Supreme Court issued a favorable ruling to a woman whose employer had read an e-mail that was sent on a company computer between her and her lawyer.

Prior to leaving her employment with the Loving Care Agency and filing a discrimination lawsuit through her employment lawyers, Marina Stengart exchanged e-mail communications with her lawyer. She utilized her personal email account. Her employer obtained the e-mails and used them in the preparation of their defense to her discrimination lawsuit. The trial court had ruled that the former employee waived the attorney-client privilege by sending the e-mails on a company computer. The New Jersey Appellate Division reversed the decision, ruling that Loving Care's employment attorneys had violated privacy laws.

The New Jersey Supreme Court ruled that Stengart could have reasonably expected the e-mails would remain private.

An article in the New York Times reported that State and Federal agencies are going to be cracking down on an employer's use of independent contractors. For years, employers have utilized independent contractors in place of employing individuals as regular employees. The reason an employer uses an independent contractor is to avoid paying employer contributions for social security, medicare and unemployment insurance. New Jersey employment lawyers, and employment lawyers in other states, will certainly be busy dealing with the audits conducted by the various agencies charged with the authority to crack down on employers that are illegally designating an employee as an independent contractor.

A former student of the Peddie School in New Jersey was awarded $64,000.00 by a jury for her claim that the school was liable for a teacher's action in violation of the New Jersey Law Against Discrimination.

The New Jersey Supreme Court on Thursday gave employers, and management-side employment lawyers, a victory by putting a limit on suits by fired employees under the New Jersey Law Against Discrimination based on post-discharge retaliatory conduct. The Court stated that the "limitations clock begins to run on a discrete retaliatory act, such as discharge, on the date on which the act takes place." The unanimous New Jersey Court reversed an appeals court that had allowed a suit under the "continuing violation doctrine" even though more than two years had passed since the first retaliatory act. Although "a discrete post-discharge act of retaliation is independently actionable even if it does not relate to present or future employment," that timely claim "does not sweep in a prior untimely discrete act which the victim knew or ought to have known gave rise to a retaliation claim," Justice Virginia Long wrote in Roa v. LAFE, A-72-08.

In a recent ruling by the New Jersey Appellate Division, an employment lawyer representing the employer was successful in defending a wrongful discharge case by asserting the economic downturn as a defense. Now that the economy has been ailing for quite some time, it is likely that the Appellate Division will be seeing a significant number of employment lawyers invoking the economic downturn as the employer's nondiscriminatory reason for termination. I suspect employment lawyers in New Jersey representing management are going to utilize the economic downturn as a defense to employment cases on a more frequent basis.

In McCann v. Trump Marina, Inc., App. Div. (per curiam) (9 pp.) Plaintiff Robert McCann appealed summary judgment dismissal of his employment discrimination action against defendants. McCann, along with his department, were laid off by defendant Trump Marina, Inc., a hotel and casino in Atlantic City, New Jersey, due to a financial crisis. McCann filed a lawsuit alleging that he had been terminated in violation of the New Jersey Law Against Discrimination. He had also alleged that he was subjected to a hostile work environment, and retaliation. The appellate panel affirmed summary judgment. The panel found there was no credible evidence that Trump Marina's broad-based staff reduction was a ruse or screen for termination of McCann based on race or gender discrimination, or retaliation. The panel found that while some employees were rehired or placed elsewhere, the Trial Judge correctly determined that there was no credible evidence that McCann requested either. Further, Judge Blue correctly concluded that there was no credible evidence that conduct by a security guard was motivated by a discriminatory animus or was the result of an action by McCann's co-workers.

Employment lawyers in New Jersey and the rest of the nation are going to see some changes in the enforcement of employment laws. The U.S. Equal Employment Opportunity Commission is going to receive an extra $23 million to help tackle a growing problem: backlogged cases at the EEOC. The 2010 omnibus appropriations bill, passed by the U.S. House of Representatives on Dec. 10 and by the Senate on Dec. 13, would place those additional millions to the EEOC. The money shall be used to help the agency get a handle on more than 70,000 unresolved discrimination complaints.
Recently, the EEOC saw a 35% jump in its backlog, from 54,970 cases in 2007 to 73,951 last year. The agency also saw a record number of discrimination complaints in 2008 -- 95,402. This was also a nearly 20% increase from 79,896 in 2007. Approximately two-thirds of the cases involved racial or gender discrimination. In the meantime, the agency has watched staffing levels shrink 25% in recent years, from 2,850 in 2001 to 2,150 in 2008. The agency is now hiring 200 new investigators.
Many states have their own version of the EEOC. In New Jersey, discrimination complaints can be filed with the New Jersey Division on Civil Rights.

Employment Lawyers representing plaintiffs were dealt a set back by New Jersey's Appellate Division this week when the Court took a rare turn away from its usual liberal stance on discrimination cases. The New Jersey Appellate Division recently held that there is no cause of action under the New Jersey Law Against Discrimination for discrimination in pay and compensation benefits when the discrimination is based on decisions that occurred outside the LAD two-year statute of limitations. The Court stated that the fact that the impact of the discriminatory decision-making continued the pay disparity into the two-year period before the complaint was filed is not relevant. The New Jersey Appellate Division followed the principles and guidance of the federal Title VII jurisprudence, and the United States Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., notwithstanding Congress' subsequent adoption of the Lily Ledbetter Fair Pay Act of 2009. The Appellate Division stated that the Legislature, not the court, must amend the LAD to achieve the result Congress adopted.

Employment lawyers in New Jersey and rest of the Country are going to follow this case closely. The United States Supreme Court recently asked the solicitor general for the government's position on the case of Staub v. Proctor Hospital, a case which may resolve a conflict in the United States federal circuits. The issue before the Court is over the so-called "cat's paw theory". The theory holds an employer liable for discrimination when a final decision-maker is influenced by a lower-level employee with discriminatory motives to take an adverse action against another worker.

The First, Third, Fifth and Ninth circuits have upheld the cat's paw claim where the terminated employee was able to prove that a biased worker actually influenced the final decision. However, the Fourth Circuit has held that if the final decision-maker's motive is pure, an employer cannot be held liable for a subordinate's alleged bias. The 10th Circuit actually requires evidence that the biased subordinate caused the firing or demotion through his discriminatory recommendations, reports or actions.

Employment lawyers in New Jersey will be following this case closely. The New Jersey Supreme Court has agreed to hear an appeal by a former Curtiss-Wright Corp. employee whose $10.6 million sex-discrimination judgment was reversed because she shared confidential company records with her lawyer. The issue before the court is whether a worker's acquiring of company information in the normal course of her job, and communicating it to her employment attorney in her discrimination case, is protected activity for which retaliation is actionable.

Through her human-resources position, plaintiff Joyce Quinlan copied more than 1,800 pages of the company's personnel files, including salary records. She handed the files over to her lawyer in support of her suit. The trial judge instructed the jury that it was permissible for the lawyer to use the confidential company documents and that the company could not fire the plaintiff on that basis. The Appellate Division reversed. The New Jersey Appellate Division found that the trial court judge improperly distinguished between copying the documents and using them in litigation.

New Jersey employment lawyers will present their arguments on Tuesday in a case brought by the the Asbury Park Press to seek disclosure of a confidential settlement agreement between a plaintiff in a sexual harassment lawsuit and the County of Monmouth. The New Jersey Appellate Division required disclosure of the agreement. Tune in to the New Jersey Supreme Court website to see the arguments.

It looks like a group of lawyers from the State of New Jersey may need some advice from an employment lawyer. A former associate lawyer from the law firm of Levinson Axelrod has launched a website to trash his former employer. The former associate uses the domain name www.levinsonaxelrod.net to trash talk the partners at his former firm. The Levenson Firm uses www.levinsonaxelrod.com for its website. New Jersey Lawyer Edward Harrington Heyburn claims that he was willing to risk litigation at the time he started his website that badmouths his former partners at the New Jersey law firm of Levinson Axelrod.

The New Jersey Law Journal says that Levinson Axelrod has retained their own attorney. According to the New Jersey Law Journal, Levenson hired Thomas Cafferty of Scarinci Hollenbeck in Lyndhurst. Levinson's lawyer plans to file suit shortly over Heyburn's website.

How could this have been avoided? The answer is simple if you ask a New Jersey employment lawyer. Levinson should have realized the potential damage a former associate lawyer can create when leaving a firm. Had the Levinson Firm offered Mr. Harrington a modest severance, the Firm could have obtained a standard non-disparagement clause in the severance agreement. Any violation of the clause could have been stopped by way of an injunction. I guess an ounce of prevention really is worth a pound of gold"