Bergen County's Top Lawyers 2024Rabner Baumgart Ben-Asher & Nirenberg, P.C. is pleased to announce that two of our employment lawyers, Jonathan I. Nirenberg and David H. Ben-Asher, have been selected to BERGEN Magazine’s 2024 list of Bergen County’s Top Lawyers. Jonathan and David were each selected in the category of Labor & Employment law.

This is the second time Jonathan has received this honor, having previously been selected for it in 2023.  David was selected for the first time in 2024.

For information about BERGEN Magazine’s selection process for its Top Lawyers list is available here.  No aspect of this website has been approved by the Supreme Court of New Jersey.

In a recent unpublished opinion, New Jersey’s Appellate Division found a teacher’s objection that his school did not sufficiently discipline a student for threatening to shoot another student could be protected from retaliation by the Conscientious Employee Protection Act (“CEPA”).

Teacher fired after reporting student who threatened to bring gun to schoolCEPA is a broad New Jersey whistleblower law that prohibits employers from retaliating against an employee for, among other things, objecting to an activity or practice of the employer that the employee reasonably believes violates a law, a rule promulgated pursuant to law, or is incompatible with a clear mandate of public policy concerning public health, safety or welfare or protection of the environment.

Phillip Eisenstein is a physical education teacher for the New York Avenue School in Atlantic City.  He witnessed a student, K.D., bullying other students.  After Mr. Eisenstein intervened, K.D. threatened to get his uncle’s gun and come back the next day to shoot one of the other students.  Mr. Eisenstein reported this to the school’s principal, who said he would handle it.

In a recent unpublished decision, New Jersey’s Appellate Division make it clear that an employee does not have to have a severe or permanent impairment to have a viable disability discrimination to be protected by the New Jersey Law Against Discrimination (“LAD”).

The case was filed by Bart Algozzini, who worked for DGMB Casino, LLC doing business as Resorts Casino Hotel (“Resorts”) as its Director of Slot Operations.  Mr. Algozzini took a medical leave after he suffered second and third-degree burns over seventy percent of his body after his boat exploded.  He was hospitalized for a month, during which he was placed in a medically-induced coma for more than two weeks. After leaving the hospital, he was in a rehab facility for a week-and-a-half, followed by over three months of outpatient physical therapy sessions.

Appellate court allows disability discrimination claim against casino to proceedWhile Mr. Algozzini was on his medical leave, Resorts eliminated his position as the Director of Slot Operations and instead created two new positions: Slot Service Manager and Slot Technical Manager.  Resorts gave Mr. Algozzini the position of Slot Service Manager, a job with fewer responsibilities and that paid $23,000 less per year than his former position as its Director of Slot Operations.  Resorts did not eliminate any other positions at that time.

Tax considerations in employment law settlementsWhen you settle an employment law case, typically most or all of the money you receive will be taxable.  Nonetheless, it is both common and important to discuss the tax allocation as part of the settlement negotiation, including what portion will be reported on an IRS form W-2, and what portion will be reported on a 1099.

While I am an employment lawyer rather than a tax expert, below is my understanding regarding the taxability of employment law settlements under federal law.  These issues can be complex and have significant consequences to you, so you should consult with a tax expert before you make any decisions.

W-2 Payments: Lost Wages

The New Jersey Wage Payment Law (“WPL”) is an important employment law that requires employers to pay employees their wages on time.  Since August 2019, the WPL has entitled employees whose employers fail to pay them on time to recover not only their unpaid wages, but also up to 200% of that amount as liquidated damages plus their attorney’s fees.

Employee seeks commissions for selling PPEOne question that has been coming up with increasing frequency is when commissions are wages that are subject to the WPL, and thus when unpaid commissions (and belatedly paid commissions) are subject to the liquidated damages and attorney’s fee provisions.

The WPL defines wages to include at least some commissions, as follows:

A recent unpublished opinion from New Jersey’s Appellate Division overturned a trial court decision dismissing his whistleblower claim under the Conscientious Employee Protection Act (“CEPA”).  The case serves as a reminder that close timing between a legally-protected activity and an adverse employment action can be powerful evidence to support a retaliation claim.

Joseph Silvestri was the Director of Information Technology (“IT”) for the Borough of Ridgefield.  When he discovered that someone had tampered with the Lightning Alert System at Willis Park, he reported it to the Ridgefield Police Department.  Paul Schaeffer, who is friends with a Ridgefield Councilman, Javier Acosta, was charged with tampering with the Lightning Alert System.  Mr. Silvestri subsequently was subpoenaed to testify in Mr. Schaeffer’s municipal court case, and was present in court for the trial, but did not actually end up testifying.

Court allows former Head of IT to pursue whistleblower claimShortly thereafter, the Ridgefield Council President, Russell Castelli, told Mr. Silvestri that he is not entitled to receive overtime compensation because he is the head of the IT Department.  Until then, Mr. Silvestri had been eligible to receive overtime compensation for approximately 20 years.  According to Mr. Silvesti, Councilman Acosta caused Ridgefield to stop compensating him for his overtime.

Today, the New Jersey Supreme Court ruled that the New Jersey Law Against Discrimination (“LAD”) prohibits non-disparagement agreements that have the impact of preventing an employee from discussing the facts of their discrimination, harassment or retaliation claim.

Non-disparagement clauses are very common in settlement agreements in employment law cases.  Typically, they prevent the employee from saying anything negative about their former employer.

Court rules non-disparagement agreements violate New Jersey Law Against DiscriminationThe case interpreted a 2019 amendment to the LAD that was passed in response to the #MeToo movement.  Specifically, the legislature amended the LAD to deem that any provision in a settlement agreement that “has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment . . . shall be deemed against public policy and unenforceable.”

New Rule Will Ban Most Non-Compete Provisions

The Federal Trade Commission (“FTC”) has issued a new Rule that soon will ban virtually all non-compete agreements in the United States.

FTC Rule will Ban Non-Compete Provisions.Specifically, on April 23, 2024, the FTC issued a new Rule that deems it to be an unfair method of competition for anyone to (1) enter into or attempt to enter into a non-compete clause, (2) enforce or attempt to enforce a non-compete clause, or (3) tell someone else that a worker is subject to a non-compete clause. However, for “senior executives,” employers still can enforce non-compete agreements that were entered into before the Rule’s date effective date.

The United States Supreme Court recently ruled that an employee who brings a lawsuit alleging she was transferred to another position for a discriminatory reason does not have to prove the transfer caused her significant harm.

Jatonya Clayborn Muldrow is a police sergeant in the St. Louis Police Department.  She served as a plainclothes officer in the Department’s specialized Intelligence Division. In that position, she investigated public corruption and human trafficking cases, oversaw the Gang Unit, and was the head of the Gun Crimes Unit.  As part of her position, she also was a Task Force Officer with the FBI, which gave her FBI credentials, an unmarked vehicle that she took home, and the right to conduct investigations outside of St. Louis.

Female police officer can proceed with her claim that she was demoted due to her gender.After a new Intelligence Division commander took over the Division, he decided to transfer Sergeant Muldrow out of the unit so he could replace her with a male Sergeant who he considered a better fit for the unit’s “very dangerous” work. As a result, Sergeant Muldrow was reassigned to a uniformed position in its Fifth District.

The New Jersey Law Against Discrimination (“LAD”) can require a condominium association to allow a resident to keep an emotional support dog as an accommodation for a disability even if the dog exceeds the association’s weight limit for pets.

Housing residents may be entitled to emotional support dog as reasonable accommodation for disability.K.P. and B.F. live at Players Place II, a condominium complex in New Jersey. Players Place II’s rules and regulations allow only pets under 30 pounds to live in its apartments.

The Association filed a lawsuit against K.P., claiming he violated its rules and regulations.  K.P. and B.F. filed a counterclaim alleging the Association violated the LAD by denying B.F. a reasonable accommodation for her disabilities.

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