New Jersey Employment Lawyer Blog

The New Jersey Supreme Court on Thursday gave employers, and management-side employment lawyers, a victory by putting a limit on suits by fired employees under the New Jersey Law Against Discrimination based on post-discharge retaliatory conduct. The Court stated that the "limitations clock begins to run on a discrete retaliatory act, such as discharge, on the date on which the act takes place." The unanimous New Jersey Court reversed an appeals court that had allowed a suit under the "continuing violation doctrine" even though more than two years had passed since the first retaliatory act. Although "a discrete post-discharge act of retaliation is independently actionable even if it does not relate to present or future employment," that timely claim "does not sweep in a prior untimely discrete act which the victim knew or ought to have known gave rise to a retaliation claim," Justice Virginia Long wrote in Roa v. LAFE, A-72-08.

In a recent ruling by the New Jersey Appellate Division, an employment lawyer representing the employer was successful in defending a wrongful discharge case by asserting the economic downturn as a defense. Now that the economy has been ailing for quite some time, it is likely that the Appellate Division will be seeing a significant number of employment lawyers invoking the economic downturn as the employer's nondiscriminatory reason for termination. I suspect employment lawyers in New Jersey representing management are going to utilize the economic downturn as a defense to employment cases on a more frequent basis.

In McCann v. Trump Marina, Inc., App. Div. (per curiam) (9 pp.) Plaintiff Robert McCann appealed summary judgment dismissal of his employment discrimination action against defendants. McCann, along with his department, were laid off by defendant Trump Marina, Inc., a hotel and casino in Atlantic City, New Jersey, due to a financial crisis. McCann filed a lawsuit alleging that he had been terminated in violation of the New Jersey Law Against Discrimination. He had also alleged that he was subjected to a hostile work environment, and retaliation. The appellate panel affirmed summary judgment. The panel found there was no credible evidence that Trump Marina's broad-based staff reduction was a ruse or screen for termination of McCann based on race or gender discrimination, or retaliation. The panel found that while some employees were rehired or placed elsewhere, the Trial Judge correctly determined that there was no credible evidence that McCann requested either. Further, Judge Blue correctly concluded that there was no credible evidence that conduct by a security guard was motivated by a discriminatory animus or was the result of an action by McCann's co-workers.

Facebook, Myspace, and other social networking sites are working their way in to employment litigation. Employment lawyers in New Jersey and other states that represent management are cautioning employers on the risks associated with managers and supervisors becoming too friendly with subordinates on ever so popular social networking sites such as Facebook.

In a recent article in the New Jersey Law Journal employment lawyer Shanti Atkins, president of ELT Inc., which specializes in compliance training in the workplace, pointed out that personal information that is not supposed to influence employment decisions is typically available on the social networking sites. Information such as religious affiliation, age, ethnicity, political affiliation, health problems is typically available on the sites. Employment lawyer Shanti Atkins pointed out that a boss planning to terminate an employee may see information about the employee's medical condition or frustration over religious intolerance. Atkins questions if this information will influence the manager's decision, or will it be perceived as influencing the manager.

Employers clearly need to update their policies and procedures to prevent any this information from influencing management.

A question that comes up quite frequently in New Jersey employment law is whether an employee that quits their job can later sue the employer for wrongful discharge. Most employees are under the impression that they can sue their employer for wrongful discharge, even if they resign. On the defense side, most employers fear they can be subject to a wrongful discharge case if the employee voluntarily leaves employment. What is the answer?

The answer is that most of time the employee will have an extremely weak case for wrongful discharge against their former employer if they resign employment. New Jersey employment law recognizes a theory which is known as constructive discharge. This is a theory which allows an employee to sue his or her former employer for wrongful discharge, even though the employee resigns. In order for an employee to prevail under this theory, the employee will have to show that he left because the work environment was so intolerable that no reasonable person would stay employed and endure the work conditions. This is a fairly high burden to meet for the employee under New Jersey's employment laws.

It is important to remember that harassment cases may be brought irrespective of the employee's decision to resign employment. However, an employee's decision to resign may affect his damages claim at the time of trial, unless he can show that he was constructively discharged.

Employees in New Jersey should always contact a New Jersey employment lawyer before making the decision to resign employment. Likewise, employers should always contact an employment lawyer when an employee indicates that he may intend to resign because of the work conditions.

The Appellate Division dealt New Jersey employment lawyers representing plaintiffs a blow today. The Division ruled today that that an at will casino employee terminated because of bad publicity associated with his co-employee's illegal acts does not state a cause of action for wrongful discharge under New Jersey employment law.

A casino employee in Atlantic City admitted to the Casino Control Commission that he conducted illegal surveillance as a security/surveillance employee while working for the Caesar's Palace Casino in Atlantic City. The illegal surveillance involved the use of the "eyes in the sky" cameras to ogle women in the casino. The plaintiff, another employee that worked in the same department of the wrongdoer, did not admit to the illegal conduct but was fired because of the bad publicity associated with the case before the casino control commission. . Does he have a case for wrongful discharge? Not according to the New Jersey Appellate Division. A New Jersey employment lawyer filed a lawsuit on behalf of the plaintiff for wrongful discharge in violation of New Jersey public policy laws. The plaintiff also field a claim for false light based on comments made by the Casino to the press. The New Jersey Appellate Division ruled that the plaintiff's false light claim was rooted in defamation, and therefore, must be dismissed because the lawsuit was not filed within the one-year statute of limitations. The Appellate Division also booted the public policy claim holding that the employee was at will and the Casino had every right to terminate the employee because it believed he was not performing his job.

Recent news reports have reported that there has been an increase in employment law cases with the weakened economy. According to the Equal Employment Opportunity Commission (EEOC), the filing of job bias claims has hit an unprecented level. The EEOC reported over 95,000 claims were filed in the 2008 fiscal year. This certainly sounds like good news for employment lawyers. But it's not all good news for Plaintiffs. Under federal law such as the Civil Rights Act of 1964, and New Jersey's Law Against Discrimination, most cases are decided under a burden shifting analysis pursuant to a United States Supreme Court Case handed down in the 1970s. Under this analysis, an employer can successfully defend a case by demonstrating a legitimate business reason for the discharge of an employee. A bad economy is a legitimate buisness reason.

In McDonnell Douglas Corp. v. Green, the United States Supreme Court set forth a three step analysis in determining whether a plaintiff can prove a case of wrongful discharge. The first step of the analysis is a relatively simple burden to meet. The plaintiff need only show that he can state a prima facie case. By way of example, in an age discrimination case the plaintiff can meet this burden if he demonstrates that he is over the age of 40 and replaced by an employee in his early 20s. If the plaintiff meets this burden, the employer is then required to set forth a legitimate non-discriminatory reason for the discharge. Most lawyers refer to this step as the "business reason". If the employer sets forth a business reason for the discharge, the burden then shifts back to the plaintiff to show that the employer's business reason is not believable. In most employment law cases, the fight is in this last step of the analysis.

A bad economy is ceratinly considered a business reason for dicharging an employee. While EEOC and court filings may be on the rise, we may see a decrease in the number of successful plaintiff verdicts.