New Jersey Employment Lawyer Blog

Jonathan Nirenberg Quoted in New Jersey Law Journal

July 13, 2016 | by Jonathan I. Nirenberg

Earlier this week, I was quoted in the New Jersey Law Journal regarding the lawsuit Grethen Carlson recently filed against Roger Ailes, the CEO of Fox News Network. Ms. Carlson alleges that Mr. Ailes sexually harassed her and eventually fired her as a Fox News anchor because she resisted his sexual advances.

Ms. Carlson filed her lawsuit in Bergen County, New Jersey. However, Mr. Ailes had the case removed to Federal Court. He is currently seeking to force the case into a confidential arbitration rather than a public court. Mr. Ailes is relying on the fact that Ms. Carlson’s employment contract with Fox News includes an arbitration clause.

According to the Law Journal article, Fox News Suit Could Hinge on Disparate Arbitration Stances in NY, NJ, Ms. Carlson is claiming the arbitration clause does not apply to her case because Mr. Ailes is not a party to her employment agreement with Fox News and is not even mentioned in it. In contrast, Fox is arguing that a lawsuit against Mr. Ailes in his capacity as Fox’s CEO is in effect a lawsuit against the network, and that the arbitration clause is broad enough to encompass this dispute because it arises out of Ms. Carlson’s employment relationship with it.

Employer’s Attempt to Mislead Investigator Relevant to Sexual Harassment Claim

July 6, 2016 | by Jonathan I. Nirenberg

The New Jersey Supreme recently ruled that evidence showing an employer told a key witness to provide false information during a company’s internal sexual harassment investigation can be relevant at the trial.

Tonique Griffin, Virginia Best and Rosalyn Walker, three female employees of the City of East Orange, claim their supervisor, Obed Prinvil, created a sexually hostile work environment for them. Specifically, Ms. Griffin and Ms. Best claim Mr. Prinvil kissed them, and Ms. Walker alleges he repeatedly told her he was attracted to her, loved her and wanted to be “more than just friends,” and once tried to kiss her.

After the three women reported Mr. Prinvil’s harassment, the City hired an employment lawyer, Dina Mastellone, to investigate. After Ms. Mastellone had finished interviewing witnesses, the City suggested she should interview one of the Mayor’s aides, Corletta Hicks. Ms. Hicks then made negative statements to Ms. Mastellone about all three women, including that Ms. Griffin and Ms. Best “have always been a mess,” that Ms. Griffin “preys on older married men,” that she suspected Ms. Griffin had a “personal relationship” with Mr. Prinvil, and that Ms. Griffin had serious financial problems. In contrast, Ms. Hicks described Mr. Prinvil as a “phenomenal director” who always acted professionally in the workplace.

Employers Can’t Fire Employees Based on Stereotypes About Divorce

July 1, 2016 | by Jonathan I. Nirenberg

Last week, the New Jersey Supreme Court concluded that the New Jersey Law Against Discrimination (“LAD”), which includes a prohibition against marital status discrimination, not only makes it unlawful for employers to discriminate against employee because they are married or single but also because they are separated, engaged, or seeking a divorce.

Robert Smith worked for the Millville Rescue Squad for 17 years, most recently as its Director of Operations. Mr. Smith’s wife, Mary Smith, also worked for the Squad. In 2005, Mr. Smith had an affair with one of his subordinates. When Mrs. Smith learned about her husband’s affair, she reported it to his immediate supervisor, John Redden.

In early 2006, Mr. Smith moved out of his home and told Mr. Redden that his marriage had collapsed. On February 16, 2006, Mr. Smith told Mr. Redden he did not think there was any chance he would reconcile with his wife. In response, Mr. Redden indicated that he expected it would be an “ugly divorce.” Mr. Redden also told Mr. Smith he had previously discussed the issue with the Squad’s Board of Directors, but would not have done so if he believed there was any chance Mr. Smith would reconcile with his wife. Mr. Redden fired Mr. Smith the next day.

Parties Cannot Shorten Deadline to File New Jersey Law Against Discrimination Claims

June 17, 2016 | by Jonathan I. Nirenberg

Earlier this week, the New Jersey Supreme Court ruled that private parties cannot agree to shorten the two year statute of limitations that applies to the New Jersey Law Against Discrimination (“LAD”).

The case was filed by Sergio Rodriguez. When Mr. Rodriguez applied for a job as a Helper for Raymours Furniture Company (better known as Raymour & Flanigan), he signed a job application. The application contained a provision requiring him to bring any legal claims relating to his employment within 6 months after the action that becomes the subject of the lawsuit, and waiving any statute of limitations to the contrary.

Ramours hired Mr. Rodriguez. In April 2010, he injured his knee at work. He filed a workers’ compensation claim and received benefits. After undergoing knee surgery and physical therapy, he was cleared to return to work starting on September 14, 2010. Mr. Rodriguez initially was on light duty for two weeks. Raymours fired him on October 1, 2010, two days after he returned to full duty work.

Backlash Against Non-Disparagement Clauses

June 15, 2016 | by Jonathan I. Nirenberg

It has become extremely common, if not standard practice, for employers to include non-disparagement clauses in settlement agreements and severance packages they offer to their former employees. These provisions prohibit employees from saying anything negative about their former employers. They are extremely broad, since they prohibit true but negative statements and opinions. In addition, they typically prohibit employees from saying anything negative not just about the company itself, but also about its current and previous owners, directors, officers, employees, subsidiaries and parent companies.

The unfortunate reality is that many employees who sign severance agreements either have not read the entire agreement or do not understand or appreciate many of its provisions. Even individuals who realize they are being asked not to say anything negative about their former employers generally have no choice but to agree if they want the severance pay and other benefits that have been offered to them. Of course, for someone who has recently lost his or her job it can be difficult to reject a severance offer over something like a non-disparagement clause. As a result, employees regularly agree not to disparage their former employers.

A recent article in the New York Time, Laid-Off Americans, Required to Zip Lips on Way Out, Grow Bolder, indicates that there is a growing backlash against non-disparagement clauses. For example, it indicates that several prominent Democrat and Republican members of Congress have questioned the widespread use and misuse of non-disparagement agreements.

Supreme Court Clarifies Deadline to File Constructive Discharge Claims

June 8, 2016 | by Jonathan I. Nirenberg

The United States Supreme Court recently ruled that in constructive discharge cases the 45-day deadline for federal employees to contact the United States Equal Employment Opportunity Commission (“EEOC”) begins on the day the employee resigned. A constructive discharge occurs when an employee resigns after the “working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.”

Title VII is a federal law that prohibits employers from discriminating based on race, color, religion, sex and national origin. It also prohibits employers from retaliating against employees because they complained about one of those forms of discrimination.

One of the requirements for a federal employee to bring a claim under Title VII is that he has to contact an EEOC counselor within 45 days after the “matter alleged to be discriminatory.” Notably, for employees who work for private companies or the state or local government in New York or New Jersey there is a longer 300 day deadline to file a Title VII claims with the EEOC. Likewise, there is a 2 year statute of limitations to file claims under the New Jersey Law Against Discrimination and a three year statute of limitation under the New York State Human Rights Law.

Employee Can Be Fired For False Affidavit Supporting Discrimination Claim

May 5, 2016 | by Jonathan I. Nirenberg

A recent decision from New Jersey’s Appellate Division recognizes that the anti-retaliation provisions of the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) do not protect an employee who submits a false affidavit in support of a coworkers’ discrimination claim.

Ariel Gonzalez, worked as a Detective for the Waterfront Commission of New York Harbor. In June 2012, he signed an affidavit in support of the Commission’s former assistant general counsel, Kimberly Zick, in connection with Ms. Zick’s discrimination lawsuit against the Commission under the ADA and the Rehabilitation Act of 1973. Ms. Zick’s case was dismissed in October 2012 because her allegations did not support her claims.

Shortly after Ms. Zick’s case was dismissed, the Commission began to investigate Det. Gonzalez regarding statements in his affidavit. When the Commission interviewed Det. Gonzalez he again swore under oath that the statements in his affidavit were truthful. The Commission then suspended Det. Gonzalez and brought disciplinary charges against him seeking to terminate his employment.

First Amendment Protects Speech Perceived to be Protected Political Activity

April 28, 2016 | by Jonathan I. Nirenberg

Earlier this week, the United States Supreme Court ruled that the First Amendment prohibits the government from demoting an employee because it incorrectly believed the employee had engaged in Constitutionally-protected political speech.

The case involves Jeffrey Heffernan, a police officer who worked for the City of Paterson, New Jersey. In 2005, Lawrence Spagnola was running for mayor against incumbent Mayor Jose Torres. Mayor Torres had appointed the Patterson Police Chief, James Wittig, tore his position.

At the request of his mother, Mr. Heffernan picked up a large sign supporting Mr. Spagnola for mayor that his mother wanted to put on her front lawn. Other members of the Paterson Police Department saw Mr. Heffernan holding the sign while he was talking to members of Mr. Spagnola’s campaign staff.

Independent Sales Representatives May Be Entitled to Quadruple Damages

April 27, 2016 | by Jonathan I. Nirenberg

A less-known New Jersey statute provides protection to independent commissioned salespeople after their contracts terminate. That law, the New Jersey Sales Representatives’ Rights Act, entitles independent contractors who work as sales representatives to be paid all commissions and any other compensation they earned within 30 days after their contracts terminated or 30 days after their commissions were due, whichever is later. This requirement applies irrespective of the reason why the contract terminated, including if the sales representative resigned, was terminated without cause, or was terminated with cause.

The statute, which originally was passed in 1990, defines a “sales representative” to be “an independent sales company or other person” who is compensated at least in part by commissions. It makes it clear its protection applies only to independent contractors, and does not apply to employees.

The statute further indicates that sales representatives also are entitled to receive commissions on goods that were ordered on or before the last day of the salesperson’s contract, even if the principal (meaning the business or individual who they worked for) did not accept, receive or pay for the goods until after the salesperson’s contract terminated. The principal must pay the salesperson for any such post-termination commissions within 30 days after the payment would have been due under the contract if it had remained in effect.

Are Stock “Clawback” Provisions Unenforceable Penalties?

April 7, 2016 | by Jonathan I. Nirenberg

Many executives and other high-level employees receive stock options, restricted stock units (RSUs) and other forms of deferred compensation as part of their compensation packages. Often, the employers who issue these forms of equity to their employees include non-compete agreements and other restrictive covenants in the stock agreements. These provisions frequently include “clawback” provisions that require the employee to return the value of the equity they received if they violate the terms of one of the restrictive covenants.

However, these provisions may not be enforceable under either New Jersey or New York law. In both states, the law is clear that penalty provisions in contracts are not enforceable. But a contract can contain a liquidated damages provision, meaning an agreement in advance about the amount of damages when the parties expect it will be difficult to prove the actual damages caused by a breach.

As the New Jersey Supreme Court explained in a 1994 case, Wasserman’s Inc. v. Township of Middletown, a liquidated damages provision must be a “reasonable forecast of the provable injury resulting from breach” of contract at the time the contract was written. In other words, the agreed-upon amount of damages has to be a fair estimate of what the actual damages are likely to be. If it is not, then “the clause will be unenforceable as a penalty and the non-breaching party will be limited to conventional damage measures,” meaning it will have to prove its actual damages. While Wasserman’s itself does not involve a clawback provision, in an 2011 unpublished opinion, Schiavi v. AT&T Corp., the New Jersey Appellate Division recognized that the same principles apply to stock clawback clauses.