New Jersey Employment Lawyer Blog

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.

On Monday, the New Jersey Supreme Court was asked to put a limit on the ability of a fired employee to sue for discrimination based on the employer's post-discharge conduct. The New Jersey Supreme Court justices heard an employer's appeal from an Appellate Division ruling last year that allowed such suit to go forward against a Moonachie company, even though the alleged post-discharge misconduct was ultimately resolved in the plaintiffs' favor.

A panel of the New Jersey Appellate Division allowed the suit to proceed under under Northern & Santa Fe Railroad Co. v. White, 548 U.S. 53 (2006), which held that the anti-retaliation provisions of Title VII of the 1964 Civil Rights Act extend beyond workplace-related or employment-related retaliatory acts and harm. At Monday's arguments, New Jersey employment lawyer for the employer, Dena Epstein, said there had to be a point where post-discharge conduct cannot be considered a continuing violation of under the New Jersey Law Against Discrimination. "Otherwise, the potential claims are endless," she said.

An employer may be held liable for discrimination by third parties, including independent contractors authorized by the employer to make hiring decisions on its behalf, a federal appeals court held last week. Although this decision is not binding on cases brought by New Jersey employment lawyers, the decision may prompt some employment lawyers in New Jersey to persuade the Third Circuit and New Jersey courts to head in the same direction.

In clarifying its case law, the Court of Appeals for the Second Circuit in Halpert v. Manhattan Apartments Inc. reversed a lower court that granted summary judgment to the employer under the Age Discrimination in Employment Act. Michael Halpert applied to Manhattan Apartments to be a "shower," someone who takes prospective buyers through apartments. He claimed Robert Brooks, an independent contractor retained by Manhattan Apartments, told him he was "too old" for the job. The lower court said summary judgment was warranted because Brooks was not an employee of Manhattan Apartments. This decision was reversed. The Court stated that when a company gives an individual authority to interview job applicants and make hiring decisions on the company's behalf, the company runs the risk of ebbing liable for discrimination.

Can a settlement agreement which contains a confidentiality clause between a public entity and an individual be kept from the public and remain confidential. This is a question for the New Jersey Supreme Court. Most settlement agreements negotiated between the employment lawyer for the employee and the employment lawyer for the employer contain a confidentiality clause. This clause typically forbids either party to reveal the terms of the agreement for claims brought under New Jersey's employment laws as alleged in the employee's complaint. Between a private company and an employee, a third party will rarely have the ability to see the terms of the settlement agreement. But the issue of confidentiality becomes more complicated when one the parties to the employment lawsuit is a public entity. The issue before the New Jersey Supreme Court is whether the exclusion to the Open Public Records Act for information generated in connection with any sexual harassment complaint that is filed with a public employer, N.J.S.A. 47:1A-1.1, applies to a public entity's agreement with an employee to settle her sexual harassment lawsuit?

The request for a copy of the settlement of the sexual harassment lawsuit in this case was made by the Asbury Park Press. The trial court ruled that the public was not entitled to see the terms of the settlement agreement. The Appellate Division reversed. Now the Supreme Court has decided to make the final call on this issue. We can expect that the case will be watched closely and that the National Employment Lawyers Association (NELA), New Jersey Chapter, will probably seek to chime in on the issue with an amicus brief.

Confidentiality agreements in discrimination lawsuits can be beneficial to both parties to an employment related lawsuit. Employers do not want other employees to gain knowledge of any settlement for fear of future lawsuits. Employees engaged in employment lawsuits also benefit because an employer may be willing to put a price on keeping a matter confidential.

This will be an interesting case to follow for New Jersey employment lawyers on both sides.