New Jersey Employment Lawyer Blog

Employers are not permitted to discriminate on the basis of age when deciding whether to extend the contracts of workers over age 70, the New Jersey State Supreme Court held Tuesday. An exception to the Law Against Discrimination which allows a company to refuse to hire septuagenarians -- does not apply to contract nonrenewals, the Court held in Nini v. Mercer County Community College, A-13/14-09. The New Jersey Supreme Court agreed with a published opinion that said that for purposes of the exception, contract nonrenewal is the equivalent of termination, which cannot be based on age. Justice Virginia Long said if the LAD did not protect contract renewals, the resulting loophole would effectively create a two-tiered system giving fewer rights to long-term contract employees than to new, at-will employees.

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.

A New Jersey employment lawyer has filed has filed a whistleblower lawsuit on behalf of an Edison Township police officer after being suspended for complaining of what he perceived to be discriminatory conduct by his superior, a sergeant in the police department. The lawsuit alleges that the officer responded to a motor vehicle accident. According to the lawsuit, when the officer called for assistance, he claims the sergeant stated that "there's dirty (expletive) Indians in the car, and I'm not going in there." The officer was suspended after he complained about the comments made by the sergeant. The police department claimed that the officer's action were insubordinate. Ultimately, the insubordination charges were dismissed because they were not filed within the proper window of time.

New Jersey employment laws protect employees that complain of conduct they believe in good faith to be illegal. The Conscientious Employee Protection Act (CEPA) permits employees to sue their employers for adverse employment actions taken in retaliation for blowing the whistle on conduct which they believe is illegal.

The lawyer for the officer also filed an age discrimination claim under the New Jersey Law Against Discrimination. The lawyer claims that the officer was targeted because of his age.

In a previous blog I wrote about the United States Supreme Court ruling that employees filing age discrimination cases under the Federal Age Discrimination in Employment Act (ADEA) must now show that age was the determinative factor in deciding to discharge the employee. The Supreme Court in Gross v. FBL Financial Services, held that an employee must prove their age "was the "but-for' cause of the challenged adverse employment action."

It looks like this standard has the potential of being reversed by legislation. Sen. Patrick Leahy, D-Vt., said he was troubled by the decision. In addition, Rep. George Miller, D-Calif., the chairman of the House Education and Labor Committee, said in July that he will hold a hearing to determine how the Supreme Court employment law decision impacts workers' protections against age discrimination and other forms of workplace discrimination.

I recently conducted a Westlaw search to see if there are any New Jersey employment law decisions which interpret the new standard. As of posting this blog I could not find a single case that applied the standard to New Jersey's employment laws. It is, of course, only a matter of time before a New Jersey employment lawyer tries to persuade the New Jersey courts to apply the new federal standard to New Jersey's Law Against Discrimination. Until such time, employment lawyers will have to track Congress' action on reversing this standard through legislation.

The Equal Employment Opportunity Commission (EEOC) has hit AT&T with an age discrimination lawsuit. The EEOC is the federal agency charged with enforcing federal labor and employment laws.

According to the complaint filed in the United States District Court, District of New York by lawyers for the EEOC, AT&T denied reemployment to older workers that previously opted to retire under the company's Voluntary Retirement Incentive Program.

The EEOC claims that a disproportionate number of older workers did not have the same opportunity to apply for reemployment as the other workers, thus resulting in age discrimination in violation of the Age Discrimination in Employment Act.

AT&T has office in Basking Ridge, New Jersey and is also subject to New Jersey employment laws, such as the New Jersey Law Against Discrimination, which also prohibits age discrimination in employment.

The Manalapan Chief of Police, Stuart C. Brown, represented by a New Jersey employment lawyer, has sued the Township for age discrimination under the New Jersey Law Against Discrimination. The Chief of Police alleges that municipal officials have tried to force Brown into early retirement and further states that Manalapan, principally through the township committeewoman and the township administrator, embarked on a prolonged and continual pattern of harassment of Chief Brown."

The complaint further states that from the time the committeewoman "began her term on the Township Committee (in January 2006), there has been a longstanding, active policy of removing the existing department heads, many of whom had won awards in their positions and all of whom were recognized as qualified, top quality performers. In every case, they were members of the protected class of aged employees, and in almost every case, they were replaced by younger people."

Brown's complaint also states that several of the former department heads/employees "were tenured and could not be fired. Hence, the defendants established a pattern of harassment making it impossible for them to perform their jobs, causing emotional distress leading to physical illness and forcing them to vacate their positions as a means of bypassing tenure protections."

The complaint also states that "Defendants' conduct is severe and pervasive enough to make a reasonable person of similar age to (Brown) believe that the conditions of employment have been altered and that the working environment is hostile and abusive." "Additionally, defendants' conduct unreasonably interfered with (Brown's) work performance. Defendants harassed (Brown) for no just cause, and solely as the result of the age of (Brown) and, in particular, to force him to retire early as they had so many other aged employees."

New Jersey's Law Against Discrimination prohibits discrimination on the basis of age. Whether the chief will prevail or not remains to be seen. Under a hostile work environment analysis, as modified to fit an age animus claim, the chief in this case would have to establish that: (1) the complained of conduct would not have occurred but for his age; (2) the conduct was severe or pervasive; (3) enough to make a reasonable older aged person believe that; (4) the conditions of employment have been altered and the working environment is hostile or abusive.

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.

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.