New Jersey Employment Lawyer Blog

New Jersey employment lawyers Krenkel & Krenkel, LLC, with a New Jersey Statewide labor and employment law practice for all labor and employment related matters in the State of New Jersey also reports on cases throughout the country. In a recent case filed in Tampa, Florida, the Cheesecake Factory restaurant was hit with a sexual harassment case. The case was filed by a former male employee that alleges he was subjected to a barrage of harassing acts by line employees that worked in the kitchen. The employee also claims that he was punished when he complained. The case was based in part on alleged violation of Title VII. Title VII prohibits sexual harassment in the workplace and further prohibits retaliation against an employee that complains of such conduct. Many state laws, such as the New Jersey Law Against Discrimination mirror the federal laws which prohibit discrimination.

This is not the first time the Cheesecake Factory has been sued for sexual harassment. A similar case was filed in the past.

Employment lawyers defense costs, and payouts in settlements, is costing Atlantic City big bucks these days in employment litigation. A recent article by the Press of Atlantic City reported that one lawsuit the City chose to settle a case and payout $750,000. But that was only part of the payout. Law firms representing the City and individuals billed 1.2 Million. This exceeded the settlement cost by $450,000. Does this even make sense? It certainly does for the employment attorneys in NJ that were able to convince the City to keep on fighting.

A former student of the Peddie School in New Jersey was awarded $64,000.00 by a jury for her claim that the school was liable for a teacher's action in violation of the New Jersey Law Against Discrimination.

New Jersey employment lawyers will present their arguments on Tuesday in a case brought by the the Asbury Park Press to seek disclosure of a confidential settlement agreement between a plaintiff in a sexual harassment lawsuit and the County of Monmouth. The New Jersey Appellate Division required disclosure of the agreement. Tune in to the New Jersey Supreme Court website to see the arguments.

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.

On August 17, 2009, the New Jersey Division on Civil Rights issued a statement that it had made a finding of probable cause for discrimination against the Bank of New York, which an office in Hudson County dealing with securities and asset management. The company was charged with race and sexual orientation discriminating by a former employee. The Division's finding of probable cause also applies to a claim for retaliation because the employee was terminated after complaining of employment discrimination

The New Jersey Division on Civil Rights has the authority to investigate claims of employment discrimination under the New Jersey Law Against Discrimination, including claims of discrimination based on an employee's sexual orientation or race, as alleged in this case.

The New Jersey Law Against Discrimination also prohibits an employer from making an adverse employment action, such as termination, after an individual makes a complaint of discrimination in good faith.

In New Jersey, employees make bring claims of employment discrimination against their employers by filing a claim with the New Jersey Division on Civil Rights. Alternatively, an employee may hire a New Jersey employment lawyer to file a civil lawsuit against their employer in the Superior Court of New Jersey.

A New Jersey employment lawyer that represented a former Millville police officer recently settled a lawsuit against the municipality for $415,000.00.

The officer alleged harassment based on his sexual orientation. New Jersey employment lawyers can file discrimination cases based on an employee's sexual orientation. The New Jersey Law Against Discrimination prohibits discrimination against an individual on the basis of their sexual orientation. The law allows individuals to seek damages against their employers, which may include a claim for punitive damages, as well as damages for pain and suffering and emotional distress.

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.

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.

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.