New Jersey Employment Lawyer Blog

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"

Facebook, Myspace, and other social networking sites are working their way in to employment litigation. Employment lawyers in New Jersey and other states that represent management are cautioning employers on the risks associated with managers and supervisors becoming too friendly with subordinates on ever so popular social networking sites such as Facebook.

In a recent article in the New Jersey Law Journal employment lawyer Shanti Atkins, president of ELT Inc., which specializes in compliance training in the workplace, pointed out that personal information that is not supposed to influence employment decisions is typically available on the social networking sites. Information such as religious affiliation, age, ethnicity, political affiliation, health problems is typically available on the sites. Employment lawyer Shanti Atkins pointed out that a boss planning to terminate an employee may see information about the employee's medical condition or frustration over religious intolerance. Atkins questions if this information will influence the manager's decision, or will it be perceived as influencing the manager.

Employers clearly need to update their policies and procedures to prevent any this information from influencing management.

An out-of-state company that requires disputes be brought in the home state of the company may not be enforceable under the terms of an employment agreement. In this recent case, Plaintiff Nancy Nuzzi entered into an employment agreement. The agreement contained a clause which stated that litigation arising out of the agreement would be brought in the State of California. Plaintiff Nuzzi worked in the State of New Jersey. The Plaintiff sued for violations of the New Jersey Family Leave Act and the New Jersey Law Against Discrimination. The District Court dismissed the Plaintiff's case because it was filed in New Jersey. The New Jersey employment lawyer representing the employee appealed. The Third Circuit Court of Appeals. reversed holding that the Plaintiff did not clearly waive her rights under New Jersey employment laws.

See Nuzzi v. Aupaircare, No. 08-1210, 3rd Cir., 2009.

New Jersey employment ,lawyers representing employers need to ensure in employment agreements that the employee clearly waives their right to claims brought under New Jersey employment laws. The terms need to be unambiguous and clear.

The Supreme Court of New Jersey issued a ruling Wednesday that defendants can never be awarded counsel fees under the offer of judgment rule in any case in which plaintiffs benefit from a statutory fee-shifting provision, which includes the New Jersey Prevailing Wage Act. However, the decision gives defendants an incentive to make an offer in such cases anyway, so long as it is clear about how much would be for the plaintiff and how much for the plaintiff's legal fees.

The New Jersey High Court's opinion, in Best v. C&M Door Controls, Inc., is clearly an attempt to reconcile the intent of laws that allow fee switching for plaintiffs in workplace rights cases and the Offer of Judgment Rule, which uses fee awards to penalize parties, including plaintiffs who do not accept reasonable settlements.

Employment lawyers in New Jersey will certainly be impacted by the Supreme Court's decision. Employment lawyers representing plaintiffs can be thankful that defendants cannot be awarded fees. However, a New Jersey lawyer representing an employee may have his fees adjusted for failing to accept a reasonable settlement offer by the defendant.

Employment lawyers in New Jersey should take note of yet another change in the law with respect to family leave. The Third Circuit Court of Appeals has recently ruled it is not necessary that an employee actually take leave under the Family and Medical Leave Act for the retaliations provisions to be invoked. Under the federal employment law, employees that merely ask permission for leave under the act are protected under the retaliation provisions of the act. The Court's decision is binding on employers in the State of New Jersey.

U.S. Circuit Judge Thomas Hardiman wrote in Erdman v. Nationwide Insurance Co. that "[i]t would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave begins . . "

NJ employment lawyers may see an increase in court filings as a result of the recent decision. Employees are now free to file retaliation claims against their employer for adverse employment actions taken in retaliation for an employee's request for time off under the act.

Employment lawyers in New Jersey will need to take a look at this case. The U.S. Circuit Court of Appeals for the Third Circuit recently ruled in a case of first impression that the protection of Section 1981 of the Civil Rights Act extends beyond employees to independent contractors. In Brown v. J. Kaz Inc. d/b/a Craftmatic of Pittsburgh, the plaintiff Kimberly Brown brought a discrimination lawsuit against Craftmatic under Section 1981, Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act. She alleged disparate treatment, hostile work environment and retaliation. The Court of Appeals agreed with the district court that Brown was precluded from bringing actions under Title VII and Pennsylvania Human Relations Act. However, the court reversed the ruling on Brown's Section 1981 claims, which alleged that Craftmatic's termination of her contract was racially motivated. The Third Circuit panel in its decision agreed with three other federal appeals courts: the First, Seventh and Eleventh circuits.
The Third Circuit's decision is binding on employment discrimination cases filed in the State of New Jersey. Employment lawyers representing employers and employees in the State of New Jersey will have to pay close attention to the case since employers are now at risk for claims brought by independent contractors under federal employment laws.