New Jersey Employment Lawyer Blog

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.