New Jersey Employment Lawyer Blog

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.

Affirmative action cases are almost always controversial and certainly a hot topic for employment lawyers. The Supreme Court just heard arguments in Ricci v. DeStefano. In this case, the City of New Haven threw out the results of the fire department's promotional test because no blacks and only two Hispanics would have been eligible for advancement. White fire fighters filed the lawsuit when the City threw out the test. The white fire fighters claimed their constitutional rights were violated. Reverse discrimination? This is the case before the United States Supreme Court. The question is whether the white fire firefighters were the victims of discrimination as a result of the City's equal opportunity efforts. Title VII of the Civil Rights Act does not allow an employer to take race into account when making employment decisions. Many states have enacted similar employment laws. For example, New Jersey employment laws do not permit an employer to take race into account when making an employment decision. But what happens when a government employer, such as a city, decides to take race into account because not enough minorities scored high enough? These were the issues just argued by employment lawyers at the Supreme Court.

From the Court's questioning, it was clear that Chief Justice John Roberts and Justice Antonin Scalia believed City officials were primarily concerned with the fact that the test had not produced the outcomes they wanted. Roberts and Scalia grilled the City's lawyer, as well as the lawyer representing the federal government. The federal government has taken the position that the City was within its rights to throw out the test. At one point, Roberts asked Deputy Solicitor General Edwin Kneedler about what the government's position would be if the results of the test had been revered --- that is, if the black applicants had scored well and white applicants did not score high enough for advancement ---"can you assure me that the government's position would be the same?" Kneedler responded with a yes. Scalia commented, "I don't think you'd say that."

For now, stay tuned - we will have to wait and see what High Court does with this one.

Employment lawyers are busy defending English-only cases in the workplace. Recently, California and Texas workers alleging that they were punished for speaking Spanish in the workplace settled a lawsuit for $450,000 and free English classes. According to a consent decree in a class-action lawsuit filed by the U.S. Equal Employment Opportunity Commission in Los Angeles, the discrimination lawsuit was brought against the Skilled Healthcare Group Inc. and its affiliated firms. According to the lawsuit, the company enforced an English-only rule against Latino employees but not other ethnic groups speaking Tagalog and other languages. The EEOC's regional attorney said that Spanish to Spanish speaking by Latino employees was prohibited even on breaks and in the company's parking lot. The lawsuit alleged that the company discriminated against the workers on the basis of their national origin. Federal law and the New Jersey Law Against Discrimination prohibits discrimination based on an employee's national origin.

Employment law cases involving national origin discrimination are increasing. According to the EEOC, filings increased to a record high of 10,601, up 13% from the previous year. 204 of the filings involved English-only rules. This was an increase of 125 from cases two years earlier, according to the EEOC statistics.

Generally speaking, English-only workplace policies for employees are permissable, but there should be a business necessity for the rule. In addition, employers are permitted to ask employees that speak English to do so in the workplace under federal law.

New Jersey employment lawyers representing employers need to check their client's policies and procedures to ensure that the client is not exposing itself to litigation for claims involving national origin discrimination. Immigration issues are a hot topic these days, including English-only rules in the workplace.

In employment law, religious discrimination cases account for a very small portion of the employment lawsuits filed. In my experience as a New Jersey employment lawyer, I have seen very few religious discrimination cases. But when they are filed, they certainly are interesting.

In Webb v. City of Philadelphia, a Police officer's religious discrimination lawsuit brought because the employer declined her request to wear religious garb with her uniform failed as a matter of law. The 3rd Circuit United States Court of Appeals, which is binding, or highly persuasive, for cases brought under New Jersey employment laws, ruled in favor of the employer, City of Philadelphia, finding that the Muslim Officer's religious request to wear a garb created an undue burden on the City. The Court of Appeals recognized that the employee presented a prima facie case of religious discrimination under Title VII of the 1964 Civil Rights Act, but found that the employee's case must fail because the employer had at stake the perception of its impartiality by citizens of all races and religions whom the police are charged to serve and protect. Therefore, the employee's request created an undue burden.

The Court of Appeals distinguished a similar case brought by New Jersey employment lawyers in Fraternal Order of Police Newark Lodge No. 12 v. City of Newark. In that case the Court held that the City of Newark was required to create a religious exemption to its "no-beards" policy because the City already created an exemption to the same policy for medical reasons. The discriminatory intent was therefore quite obvious.

Interestingly, the Court of Appeals went out of its way to point out that the ruling was only based on the facts presented at the district court level. Throughout the opinion it is clear that there were facts that were not developed or presented at the district court level which may have impacted the Court's decision.

Perhaps the Court of Appeals was sending a signal that this issue could be heard again. But then again, the Circuit Court issued the decision as precedential. I guess we will have to wait and see.

Severance is a hot topic these days in employment law. Is an employee entitled to severance? Ask a New Jersey employment lawyer and the answer will probably be no. There are exceptions such as a contractual agreement with the employer that the employee will receive a severance upon termination, but such agreements are rare and not common amongst the majority of the workforce.

So, without a legal obligation why would an employer offer a severance? The answer is simple. The employer offers the severance in exchange for the employee's release of any and all claims the employee may have against the employer up to the date the severance agreement is executed by the parties. When an employee releases his claims against the employer in exchange for compensation, the employer is virtually guaranteed that the employee cannot sue the employer for claims under the New Jersey Law Against Discrimination, as well as other employment laws. This provides a level of comfort to the employer.

Quite often, the employee and employer negotiate the terms of the severance depending upon the particular facts leading up to the layoff, termination, or resignation of the employee. The negotiations may include the following: amount of the severance; the continued payment of health benefits; references; the employer's position on whether to oppose unemployment; the offering of job placement services; the employer's position on how to respond to regulatory agencies for a professional position. The terms and conditions are not limited and the parties are generally free to craft an agreement which will leave both parties feeling comfortable about the termination of the relationship.

When looking for new employment a praising reference from a former employer can be critical in the employment search. With the poor economy, and the changing workforce, reference checks are on the rise. There is no mandate in New Jersey employment law that requires a former employer to provide a reference check for a former employee. But what if the former employer negligently gives a bad reference? Under New Jersey employment laws if a former employer gives a reference for a former employee, and is negligent in providing that reference, the employer's conduct is protected by a qualified privilege. Generally speaking, this means that the employer will not be liable to the employee in a defamation lawsuit unless the employer is found to have acted in a reckless manner. This is a high standard for New Jersey employment lawyers to meet.

So what can employee do to protect himself? One thing the employee can do is to negotiate a reference with the former employer. When negotiating a severance agreement, New Jersey employment lawyers typically request that the former employer provide a good reference, or at the very least, a neutral reference upon the request of prospective employers. Most employers are willing to provide the reference.

Of course, there are those times that the employee is not able to negotiate a severance agreement, or the employee fears that the former employer will give a bad reference upon request out of spite or for some other reason. Under these circumstances, the employee does have an option. There are services that will conduct a reference check with your former employer. The reference checks typically run between $70.00 and $100.00 and it might be worth it. If an employee gets a bad reference he may able to contact the employer and request that the employer cease and desist from providing bad references in the future. Most employers will cease and desist from providing bad references in the future out of fear from the exposure of a lawsuit.

Yesterday, the United States Supreme Court in 14 Penn Plaza, LLC v. Pyett, et al. held a provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate Age Discrimination claims brought under the Age Discrimination in Employment Act is enforceable as a matter of law.

The net effect of the decision will prevent litigants from filing a civil action for discrimination under federal employment laws and demanding a trial by jury. Plaintiff's side employment lawyers are typically desirous of having a jury decide their cases. Some plaintiffs will not be getting their day in court. Employees subject to a collective bargaining agreement that specifically states that statutory discrimination claims must be arbitrated will not be able have their case heard by a jury.

On the state level, the New Jersey Supreme Court has previously upheld arbitration agreements contained within an employment application. These agreements require employees to submit statutory discrimination claims to arbitration brought under the New Jersey Law Against Discrimination.

New Jersey employment lawyers have probably not heard the end of this issue. On November 13, 2008, the Assembly Judiciary Committee reported favorably on an Assembly Bill which would amend the New Jersey Law Against Discrimination to prohibit an employer from requiring as a condition of employment that an employee waive his/her right to a trial by jury, thus barring the enforceability of a mandatory arbitration agreement between an employer and employee.