New Jersey Employment Lawyer Blog

CEPA Prohibits Employer from Retaliating Against Attorney For Refusing to Violate Ethics Rule

August 3, 2017 | by Jonathan I. Nirenberg

On July 25, 2017, the United States Court of Appeals for the Third Circuit recognized that New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”), prohibits an employer form retaliating against a lawyer because he refused to engage in an activity he reasonably believes violates attorney ethics.

Steven Trzaska worked as a patent lawyer for L’Oréal USA, Inc. The company’s French parent company, L’Oréal, S.A., instituted a quota for the number of patents applications each patent team had to reach, and warned employees that if they did not meet their quota “there would be consequences which would negatively impact their careers and/or continued employment.” In 2014, L’Oréal set a quota of 40 patents for Mr. Trzaska’s team. However, Mr. Trzaska and his team did not believe there were 40 patentable products for which they could file patent applications in good faith.

Like all lawyers, Mr. Trzaska is bound by Rules of Professional Conduct (“RPCs”). For example, one such rule established by the United States Patent and Trademark Office (“USPTO”) prohibits patent lawyers from making frivolous or bad-faith patent applications. Likewise, an applicable Pennsylvania RPC prohibits lawyers from making false statements to a court or tribunal such as the United States Patent Office.

Single Racist Remark Can Be Actionable Harassment

July 27, 2017 | by Jonathan I. Nirenberg

The Third Circuit Court of Appeals recently recognized that a supervisor’s single use of a racial epithet can be enough, on its own, to create a hostile work environment under federal law. This is consistent with longstanding president under both the New Jersey Law Against Discrimination and the New York State Human Rights Law.

The case was brought by Atron Castleberry and John Brown, both of whom worked as laborers for Chesapeake Energy Corporation through a staffing-placement agency, STI Group. Mr. Castleberry and Mr. Brown are African American.

Mr. Castleberry and Mr. Brown allege they were exposed to racist behavior at their job. For example, they claim that someone wrote “don’t be black on the right of way” on the sign-in sheet several different times. They also indicate that, despite having more experience working on pipelines, Chesapeake did not permit them to work on pipelines other than to clean them.

New Jersey Supreme Court Clarifies How to Prove Disability Discrimination

July 14, 2017 | by Jonathan I. Nirenberg

Earlier this week, the New Jersey Supreme Court clarified how to determine whether an employer fired an employee because of a disability in violation of the New Jersey Law Against Discrimination (“LAD”).

Maryanne Grande, RN, worked for Saint Clare’s Health System for approximately 10 years. During that time she suffered four separate work-related injuries that required her to take significant time off and led to additional periods during which she only could work light duty.

In February 2010, while moving an obese patient from a stretcher to a bed, Ms. Grande had to grab the patient to prevent him from falling. She injured her cervical spine and needed surgery which required over four months of recovery and rehabilitation. When she finally returned to work she had to work light duty for several weeks.

Four Rabner Baumgart Attorneys Named New Jersey Super Lawyers

June 22, 2017 | by Jonathan I. Nirenberg

Rabner Baumgart Ben-Asher & Nirenberg, P.C. is pleased to announce that four of our employment lawyers once again have been selected to be included on the New Jersey Super Lawyers list in 2017.

Specifically, Elliot M. Baumgart (Alternative Dispute Resolution), David H. Ben-Asher (Employment & Labor Attorney) and Jonathan I. Nirenberg (Employment Litigation Attorney) have received this honor.

Thomson Reuters selects individuals to be included on each of these lists based on peer nominations, evaluation of candidates and independent research. No more than 5% of attorneys practicing in New Jersey are selected to the Super Lawyers list each year. Information about the selection process is available on the Super Lawyers website.

Who Can Be Liable Under New York’s Anti-Discrimination Law?

June 15, 2017 | by Jonathan I. Nirenberg

A recent employment discrimination case makes it clear that the primary factor to determine who is an “employer” under the New York State Human Rights Law (“NYSHRL”) law is whether the party has the power to control how the worker conducts his or her job.

The case was decided in the context of the NYSHRL’s prohibition against employers discriminating against individuals who have been criminally convicted in the past. Specifically, with limited exceptions, the NYSHRL makes it unlawful for an employer to discriminate against an employee or job candidate because he previously was convicted of committing a crime. The statute also prohibits any person or entity, whether or not an employer, from aiding or abetting a violation of the NYSHRL.

Trathony Griffin and Michael Godwin worked for Astro Moving and Storage Co. Astro has a contract with Allied Van Lines, Inc. pursuant to which Astro provides moving and storage services to Allied. That contract prohibits Astro from using any workers who have been convicted of a crime on any assignment for Allied.

New Jersey Discrimination Claim Not Preempted by Federal Labor Law

May 22, 2017 | by Jonathan I. Nirenberg

New Jersey’s Appellate Division recently ruled that federal labor law does not preempt an employee’s disability discrimination claim under the New Jersey Law Against Discrimination (“LAD”) or retaliation claim under the Workers’ Compensation Law (“WCL”). Federal labor law preempts state law claims that require an interpretation of a collective bargaining agreement (“CBA”) between an employer and a union, meaning any such state law claims cannot proceed.

Brian Hejda, a union member, worked as a commercial truck driver for Bell Container Corporation. In August 2012, he suffered a knee injury at work. Mr. Hejda’s doctor placed him on restrictions and required him to work “light duty.” Bell did not return him to work because it did not have a light duty position for him. An orthopedist subsequently cleared Mr. Hejda to return to work in late September, but indicated he needed the same restrictions and could not drive a commercial truck.

In February 2013, another orthopedist cleared Mr. Hejda to return to work without any restrictions. Several weeks later, Bell sent a letter to the union indicating that under a Department of Transportation (“DOT”) Federal Motor Carrier Safety Regulation, Mr. Hejda could not return to driving a commercial truck until a Certified Medical Examiner medically examined and certified him “physically qualified to operate a commercial motor vehicle.”

New Jersey Court Reinstates Transgender Harassment Lawsuit

May 15, 2017 | by Jonathan I. Nirenberg

In a recent unpublished opinion, New Jersey’s Appellate Division ruled that a jury should have the opportunity to decide whether the Jersey City Police Department harassed an individual, Mr. Holmes, because he is transgender, in violation of the New Jersey Law Against Discrimination (“LAD”).

Mr. Holmes was arrested by members of the Jersey City Police Department for allegedly shoplifting (a charge the department apparently subsequently dropped). Mr. Holmes claims that while he was imprisoned members of the police department subjected him to demeaning and insulting comments, including several police officers referring to him as “it,” saying “so that’s a fucking girl?” and calling his transgender status “bullsh-t,” as well as one police officer threatening to put his fist down Mr. Holmes’ throat “like a f-cking man.”

Mr. Holmes sued Jersey City, claiming it had harassed him because he is transgender in violation of the LAD. The LAD expressly prohibits gender identity or expression discrimination, including the fact that an individual is transgender.

NYC Bans Salary Inquires from Job Applicants

May 9, 2017 | by Jonathan I. Nirenberg

On May 4, 2017, New York City Mayor Bill DeBlasio signed into law an amendment to the New York City Human Rights Law (“NYCHRL”). Under this new law, which is intended to reduce pay discrimination, New York City employers cannot ask or say anything to job applicants or the applicant’s current or former employers to try to learn about the applicant’s salary history. However, they are permitted to tell job applicants about the anticipated salary or salary range for the position.

The new law also prohibits New York City employers and employment agencies from relying on a job applicant’s salary history when they make decisions about salary, benefits or other compensation during the hiring process. That expressly includes prohibiting using such information when negotiation an employment contract with a new employee. However, the prohibition does not apply to: (1) job transfers and promotions within the same employer; (2) instances where there is another federal, state or local law that specifically permits or requires salary history to be disclosed or verified to determine an employee’s compensation; or (3) public employees whose salary, benefits or compensation is determined by a collective bargaining.

In addition, this amendment to the NYCHRL prohibits employers and employment agencies from searching public records to try to find out about a job applicant’s salary history. But they can obtain background checks on job candidates, even if the background check includes salary history information, as long as they do not use that information when making decisions about salary, benefits or compensation during the hiring process.

Employer Must Prove it Did Not Retaliate in Violation of FMLA

April 18, 2017 | by Jonathan I. Nirenberg

The Third Circuit Court of Appeals recently ruled that the mixed-motive proof pattern can apply to cases under the Family & Medical Leave Act (“FMLA”) even if there is no direct evidence of retaliation. Under that proof pattern, the employer has the ultimate burden to prove it did not engage in unlawful discrimination or retaliation.

Joseph Egan began working for the Delaware River Port Authority in July 2008 as a Project Manager for Special Projects. In March 2012, the Port Authority transferred him to its Engineering Department on a special assignment for an unspecified period of time.

Mr. Egan suffers from migraine headaches, which became much more frequent after he started working in the Port Authority’s Engineering Department. As a result, he requested an intermittent FMLA leave. The Port Authority granted his request.

New Law in New York City Protects Independent Contractors

April 7, 2017 | by Jonathan I. Nirenberg

On May 15, 2017, a new law will go into effect in New York City to protect “freelance workers,” which is broadly defined to include all independent contractors other than sales representatives (who already are protected by another NYC law), lawyers and doctors.

The Freelance Workers Protection Law will apply only to new contracts entered into after May 15, 2017. It applies if the hiring party is either an individual or a business, but does not apply to contracts with the state, federal, or local government.

Some of the law’s key provisions and requirements are described below.