New Jersey Employment Lawyer Blog

You can't make this story up. The Equal Employment Opportunity Commission (EEOC) has violated the Fair Labor Standards Act. An arbitrator has ruled that the EEOC committed the violations on a nationwide basis with its own employees. The EEOC is a federal agency that enforces employment laws. The EEOC also operates under a work sharing agreement with the New Jersey Division on Civil Rights, the New Jersey agency charged with enforcing New Jersey employment laws. In the State of New Jersey, aggrieved employees that are not represented by a New Jersey employment lawyer often have the option filing a claim with the EEOC or the New Jersey Division on Civil Rights.

The practice of the EEOC was to offer compensatory time off to its employees in lieu of paying overtime pay. According to the arbitrator this was considered "forced volunteering" and therefore, constitutes a knowing violation of the law. Arbitrator Steven M. Wolf ruled that the Exec's actions exceeded negligence, thus meeting the knowing standard.

As a result of the decision, the EEOC may be required to pay back wages to its employees. The ruling held that the EEOC violated the Fair Labor Standards Act.

The arbitrator noted that employees were pressured to work extra hours and were not offered additional compensation for their time.

The ruling comes at a time of an unprecedented number of applications being filed with the EEOC. In the last eight years, the EEOC has lost a quarter of its staff.

New Jersey employment lawyers are seeing an increase in the number of calls from businesses seeking advice on how to structure layoffs. According to www.nj.biz.com, New Jersey employment lawyers are reporting that when people are out of work for extended periods of time they are more likely to contest the selection process utilized in the termination process.

New Jersey companies forced to implement a mass layoff face a maze of regulations under New Jersey employment law. For example, some companies are required to give 60 days notice under the Worker Adjustment and Retraining Notification Act (WARN Act)before laying off employees. These same companies may also be subject to the New Jersey version of the WARN Act, the Millville Dallas Airmotive Plant Job Loss Notification Act which also requires 60 days notice before laying off employees. Failure to comply with the law can result in a class action lawsuit by the employees, along with a claim for attorney's fees.

Companies also run the risk in a layoff of being sued for discrimination based on age, race, gender, sexual orientation and other protected classifications under the New Jersey Law Against Discrimination and Title VII of the Civil Rights Act of 1964. The process of structuring mass layoffs is extremely complex.

The Third Circuit Court of Appeals reiterated the standard for proving gender discrimination under Title VII of the 1964 Civil Rights Act and held that a third year resident's claim for not promoting her to the next level of resident training failed as a matter of law. New Jersey employment lawyers use the same standards when arguing gender discrimination cases in the New Jersey courts under the New Jersey Law Against Discrimination.

In Brown v. Hamot Medical Center, United States Court of Appeals, Third Circuit (No. 08-1393), the plaintiff was a third-year resident in the Hamot' s Orthopaedic Residency Program when she was notified that she would not be promoted to the next level of resident training because of her academic and clinical deficiencies. The plaintiff pointed out that only one other woman had participated in the Orthopaedics Residency Program at Hamot, noting also that woman made up only 2.6 percent of all orthopaedics residents nationally in 2002. Hamot countered the plaintiff's case with objective evidence of serious academic and clinical problems.

The Third Circuit utilized the same framework that is used in New Jersey employment law when deciding whether a plaintiff can move forward with a gender discrimination complaint. According to the McDonnell Douglas framework utilized under federal and New Jersey employment laws, an employee seeking to establish a gender discrimination claim has the initial burden of establishing a prima facie case by showing: (1) that she was a member of a protected class, (2) that she was qualified for the job, and (3) another person, not in the protected class, was treated more favorably. If the employee succeeds in stating a prima facie case, the burden shifts to the employer to state a legitimate, nondiscriminatory reason for its action. Then, the employee may respond by showing that the employer's proffered reason was actually a pretext for gender discrimination.

Here, the trial court found that she was not qualified to advance to the fourth year of residency. The plaintiff contended that even if she was not qualified it is because she was set up to fail. The Third Circuit recognized that that when an employer discriminatorily denies training and support, the employer may not then disfavor the plaintiff because her performance is affected by the lack of opportunity. Suffice it to say the Third Circuit agreed with the District Court that the plaintiff had not shown that any similarly situated male resident was treated more favorably than she.

Is it a violation of New Jersey employment law to lay off a pregnant woman or a woman on maternity leave? The answer is no if the reason for laying of the woman in either case is unrelated to the pregnancy.

The New York Times reported this morning that attorney Elizabeth Grossman from the Equal Employment Opportunity Commission (EEOC) believes employers are using the dismal economy as a reason to discharge pregnant woman from the workplace. Ms. Grossman is urging pregnant woman that believe their rights have been violated to seek legal counsel.

Although the EEOC advises pregnant woman to consult with a lawyer, most employment lawyers in New Jersey will probably agree that a mass layoff is a reason that is not related to pregnancy. This makes a tough case for a pregnant woman that has been discharged in a mass layoff. Even the employment lawyers referenced in the New York Times' article agree that discrimination may be hard to prove in these types of cases. Under Federal and New Jersey employment laws, the employee needs to show that the employer's reliance on the mass layoff is untrue. This is quite a burden for the employee given the current state of the economy. It is likely that we will see more of these cases as the layoffs continue.

New Jersey employment lawyers should not rely on a New Jersey's worker's compensation settlement to prove that their client is disabled under the New Jersey Law Against Discrimination for failure to accommodate claims.

In Megargee v. State of New Jersey Department of Human Services, App. Div. (per curiam), the plaintiff alleged that she was disabled within the meaning of the Law Against Discrimination due to a back injury incurred on the job. Plaintiff alleged that the defendant failed to afford her an accommodation under the New Jersey Law Against Discrimination in 1997. The plaintiff sought to prove that she was disabled under New Jersey employment law by relying on findings in her previous worker's compensation case which was settled between the employer and employee. The trial court excluded the findings of the worker's compensation settlement. Plaintiff appealed. The appellate panel affirmed, finding the trial court did not err in excluding findings from the workers' compensation court. The appellate panel noted that the settlement had a great capacity to mislead and confuse the jury in relation to the claim that the plaintiff was disabled at the time she requested the accommodation. The settlement occurred in 1994 and the accommodation request was in 1997. The panel noted that without medical testimony as to plaintiff's condition in 1997 when the accommodation was requested, there is was no connection between the worker's compensation settlement and the 1997 request for an accommodation.

The appellate panel's finding sends a signal to New Jersey employment lawyers that in failure to accommodate cases medical testimony may be required at trial in order to prove that the plaintiff was disabled at the time the accommodation request was made.

The Government Accountability Office released a report today which found that the Federal Labor Department's Wage and Hour Division has mishandled 9 out of every 10 cases. The Wage and Hour Division is charged with enforcing minimum wages, overtime and other wage claims brought by employees. The results of the report are shocking, especially given the extremely poor state of the economy. But workers in the State of New Jersey may have an alternative. New Jersey employment laws allow employees to file a civil lawsuit. The news of this report may create an increase of cases for New Jersey employment lawyers. In New Jersey, employees may start looking to New Jersey employment lawyers for help in collecting unpaid wages.

New Jersey's Wage Payment Law and Wage and Hour Laws require the payment of wages and minimum wages to employees for work performed. New Jersey's Wage Payment Law carries stiff penalties. A person that violates the law shall be guilty of a disorderly persons offense and, upon conviction for a violation, shall be punished by a fine of not less than $100 nor more than $1,000. Each day during which any violation of this act continues shall constitute a separate and distinct offense.

New Jersey employees may file a claim for wages and request a jury trial. Alternatively, New Jersey employees may file a wage claim with the New Jersey Commissioner of Labor. The recent news from the Government Accountability Office about the Federal Labor Department's Wage and Hour Division will most likely spark an increase of filings into the New Jersey courts and with the Commissioner of Labor.

New Jersey employment lawyers representing plaintiffs will likely be elated, but employers will be forced to hire counsel as well. In New Jersey, corporations are usually required to hire an attorney if the company is sued in the Superior Court.

The law firm of Paul Hastings advised AIG that it had a clear contractual obligation to pay the AIG employee bonuses. One of my earlier blogs held the same opinion that AIG would have to honor the AIG employment contracts under New Jersey employments laws. I suspect that most New Jersey employment lawyers will agree that the contract need to be honored from a pure legal perspective.

Admittedly, I have never reviewed the AIG employment contracts. And this leads to a question I have been pondering about this issue. Do the AIG contracts contain force majeure clauses? A force majeure clause is contained in many boilerplate agreements. New Jersey courts recognize force majeure clauses. The clause allows a party to be released from a contract for an extraordinary reason. Most lawyers equate such reasons to acts of god or wars, riots and other unforeseen acts. But will a force majeure clause allow AIG to avoid honoring the employment contracts with the big bonuses? It just might be worth a shot if the agreements have the clauses. After all, is an unprecedented federal bailout of AIG that much different than a war? And, couple the Federal Government's extraordinary decision to bailout AIG with the fact that AIG would have collapsed had United States Government not intervened. This certainly seems extraordinary.

Now, assuming the AIG contracts contain these clauses, and assuming that the Treasury Department insisted that the contracts be voided, what could AIG have done to resolve the matter quickly? The first thought that comes to mind is that AIG could have sought a declaratory judgment in court seeking an immediate ruling on an emergent basis that the contracts should be avoided or they would have to face the consequences of not receiving the bailout funds. The result of not receiving the bailout funds is obviously catastrophic.

I guess there may be a way out for AIG. But it all depends on what is contained in the contracts. We will have to wait and see.

Recent news reports have reported that there has been an increase in employment law cases with the weakened economy. According to the Equal Employment Opportunity Commission (EEOC), the filing of job bias claims has hit an unprecented level. The EEOC reported over 95,000 claims were filed in the 2008 fiscal year. This certainly sounds like good news for employment lawyers. But it's not all good news for Plaintiffs. Under federal law such as the Civil Rights Act of 1964, and New Jersey's Law Against Discrimination, most cases are decided under a burden shifting analysis pursuant to a United States Supreme Court Case handed down in the 1970s. Under this analysis, an employer can successfully defend a case by demonstrating a legitimate business reason for the discharge of an employee. A bad economy is a legitimate buisness reason.

In McDonnell Douglas Corp. v. Green, the United States Supreme Court set forth a three step analysis in determining whether a plaintiff can prove a case of wrongful discharge. The first step of the analysis is a relatively simple burden to meet. The plaintiff need only show that he can state a prima facie case. By way of example, in an age discrimination case the plaintiff can meet this burden if he demonstrates that he is over the age of 40 and replaced by an employee in his early 20s. If the plaintiff meets this burden, the employer is then required to set forth a legitimate non-discriminatory reason for the discharge. Most lawyers refer to this step as the "business reason". If the employer sets forth a business reason for the discharge, the burden then shifts back to the plaintiff to show that the employer's business reason is not believable. In most employment law cases, the fight is in this last step of the analysis.

A bad economy is ceratinly considered a business reason for dicharging an employee. While EEOC and court filings may be on the rise, we may see a decrease in the number of successful plaintiff verdicts.

In Fred Brown v. New Brunswick Board of Education, Docket No. A-2501-07T2, the Superior Court of New Jersey, Appellate Division, ruled against the plaintiff because he failed to state a case under New Jersey's Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1, et al.

The plaintiff, a principal of a school, argued that the filing of a grievance under a collective bargaining agreement constituted a protected activity under New Jersey's CEPA law. The plaintiff was suspended after filing a series of grievances opposing reprimands imposed by the school board for comments at a PTA meeting and other conduct the board deemed unacceptable. The plaintiff claimed that the suspension was in retaliation for his filing the grievances. The issue before the court was whether the filing of a grievance constituted a protected activity under New Jersey whistle blower statute, CEPA. The New Jersey Appellate Division rejected plaintiff's arguments and held that the filing of a grievance is not a protected activity under the CEPA statute.

Continue reading "New Jersey Court Rules Filing a Grievance Is Not A Whistle Blowing Activity Under New Jersey's Conscientious Employee Protection Act (CEPA)." »

Sexual harassment cases usually don't settle unless the plaintiff agrees to sign a confidentiality agreement which prohibits the plaintiff from disclosing the terms of the settlement. The demand for confidentiality is typically requested by the defendant/employer. So what happens when the defendant in a sexual harassment case is a governmental entity in the State of New Jersey and a request to produce a settlement agreement marked confidential by the parties to the lawsuit is made by a third party under the New Jersey Open Public Records Act (OPRA)? OPRA is a New Jersey State law that requires the disclosure of most public records upon request?

According to the New Jersey Appellate Division, a settlement agreement resulting from a civil lawsuit is a record which must be produced in response to a request under OPRA. In Asbury Park Press v. County of Monmouth, et al., the Appellate Division held that although OPRA specifically excludes from disclosure complaints of sexual harassment by an employee to a public employer, nothing in the statute states that the sexual harassment exclusion should be applied to lawsuits filed in the Superior Court. The Court's ruling means that any record of an employee making a complaint of sexual harassment directly to the employer may not be disclosed under OPRA, yet, that same complaint, if embodied in a court document filed under seal, may be subject to disclosure. The Court opined that the public disclosure of settlements may encourage victims to come forward with complaints of sexual harassment.

While New Jersey case law favors disclosure of public records, the effect of the Court's opinion will certainly bring on significant scrutiny of the settlement of employment discrimination cases. Public employers may find themselves in the position of having to defend the payment of a large settlement. In the end, the Appellate Division's decision may actually hinder the settlement of employment discrimination cases brought against public employers.

Roy Tarpley, a former Dallas Mavericks star filed a lawsuit against the NBA and the Mavericks alleging his lifetime ban represented employment discrimination. Tarply was banned from the league for life because of drug use. Tarpley's complaint alleges that he can't be banned for life if he is clean and has a disease called addiction. His claim was brought under the American with Disabilities Act (ADA).

According to the Dallas News, the 2007 federal lawsuit against the league and the Mavericks was settled.

Although most people would probably think that the lawsuit was without merit, drug addicts are protected persons under the ADA. Similarly, the New Jersey Law Against Discrimination protects drug addicts from discrimination in employment. The disease of addiction is considered a disability and an employer that takes an adverse action against an individual because of that disbaility can be liable for damages in a civil action.

News departments are buzzing about AIG's decision to honor the bonuses to its employees after receiving billions in TARP funds from the federal government. The President has expressed outrage over AIG's decision and has asked the Treasury Secretary to explore all legal options to stop the bonus payments. Talk radio hosts are livid. But all the outrage in the world fails to consider basic contract principles. The Wall Street employment contracts were executed before the TARP funds were available and a deal is a deal. A court of law in the State of New Jersey is likely to rule in favor of the big bonus employees if AIG fails to make the payments.

Employment contracts are rare because most employees are considered "at will", but not on Wall Street and across the Hudson in New Jersey for top brokers at New York and New Jersey's preeminent investment firms. It is very common for these firms to offer what is known as a retention bonus to its better performing brokers. Retention bonuses are given to employees as a means of retaining their services and keeping them from moving to a competitor. These bonuses, as well as other bonuses contained in the Wall Street employment contracts, are binding on the parties. In the State of New Jersey, employment contracts are binding like all other contracts. In New Jersey, basic contract principles will apply and an employer's failure to honor the payment of a bonus pursuant to an employment contract because of pressure from the federal government is not likely to convince a court that the breach was justified.

In the end it is highly unlikely that a New Jersey court will abrogate the Wall Street employment contracts. Of course, the employee can voluntarily reject the bonus, but this isn't likely. Political pressure and the public disclosure of the names of the recipients of the big bonuses may be the only way Washington will win this war.