New Jersey Employment Lawyer Blog

“Blue Wall of Silence” Looms Large in Whistleblower Case

December 1, 2015 | by Jonathan I. Nirenberg

New Jersey’s Appellate Division recently recognized the significance of the “blue wall of silence” to a whistleblower case involving a New Jersey police officer.

The plaintiff, identified as “T.D.,” is a police officer in the Tinton Falls Police Department. In 2008, one of T.D.’s fellow officers reported to the Monmouth County Prosecutor’s Office that a police sergeant had installed a device called a diverter at his home so his personal water use would not be recorded. Instead of investigating the sergeant, the Police Department began an Internal Affairs (“IA”) investigation to determine who had contacted the prosecutor, and then brought disciplinary charges against that officer. When T.D. learned about this he objected to the Department’s decision to discipline the officer who complained, but not to even investigate the sergeant’s apparent crime.

In March 2009, T.D.’s sergeant asked to meet with him outside a local dumpsite, where he told T.D. he should have warned him about the prosecutor’s investigation. T.D. indicated he believed doing so would have unlawfully interfered with the prosecutor’s criminal investigation. During the meeting, the sergeant also made disparaging comments about the officer who initially reported the water diverter, and told T.D. that “everyone should watch their backs.”

The Power of Direct Evidence of Discrimination

November 24, 2015 | by Jonathan I. Nirenberg

In my previous article, Employer Must Provide Job Description So Employee Can Assess Need for Reasonable Accommodation, I discussed a case which addresses an employee’s right to a reasonable accommodation for a disability. The same case also demonstrates the power of direct evidence of discrimination.

Direct evidence is evidence that directly reflects the employer’s discriminatory motive. For example, it can include a statement by the employer that it fired the employee for a discriminatory reason.

Ordinarily, at a trial the employee has the ultimate burden to prove that a discriminatory factor such as age, race, gender or disability made a difference in the employer’s decision to fire her. However, if the employee can present direct evidence of discrimination, then the employer has the burden to prove it did not discriminate against her.

Employer Must Provide Job Description So Employee Can Assess Need for Reasonable Accommodation

November 17, 2015 | by Jonathan I. Nirenberg

A recent case out of the District of New Jersey provides a good example both of an employee’s right to a reasonable accommodation for her disability, and the employer’s obligations once an employee requests one.

Penelope Bertolotti worked for AutoZone, Inc. in its human resources department. Ms. Bertolotti suffers from a disability, gastroparesis, an incurable disease that impacts her ability to digest food and beverages. As a result, she wears a pacemaker to help with her digestion.

In October 2012, Ms. Bertolotti took a two week medical leave due to her illness. She returned to work for approximately one week, but then needed to go out on another medical leave.

FLSA and FMLA Protect Employees Misclassified as Independent Contractors

November 10, 2015 | by Jonathan I. Nirenberg

The United States Department of Labor recently released a formal Interpretation explaining how to determine whether a worker is an employee or an independent contractor under Fair Labor Standards Act (“FLSA”). The FLSA is a federal law which sets minimum wage and overtime pay requirements.

The Interpretation was written by David Weil, the Administrator of the DOL’s Wage and Hour Division. He explains that an increasing number of employers are misclassifying employees as independent contractors. As a result, many workers are unfairly denied minimum wage, overtime pay, unemployment insurance and other benefits.

As Mr. Weil indicates, the FLSA defines “employer” extremely broadly. It includes anyone the employer “suffers” or “permits” to work for it. Accordingly, “most workers are employees under the FLSA.”

Unlicensed Employment Agencies Cannot Enforce Non-Compete Agreements

November 1, 2015 | by Jonathan I. Nirenberg

The New Jersey Employment Agencies Act requires employment agencies doing business in New Jersey to register and obtain licenses from the New Jersey Division of Consumer Affairs. Agencies that fail to do so cannot file lawsuits seeking to collect fees or commissions that are owed to them, or to enforce employment agreements with the individuals who work for them. For instance, an unlicensed employment agency cannot sue to enforce a non-compete agreement.

However, a recent case makes it clear that although both employment agencies and temporary help service firms must register with the state, only employment agencies have to obtain licenses.

The case involves Varuna Jothi Uppala, an Information Technology worker who was employed by Logic Planet. Logic Planet agreed to train Ms. Uppala and assign her to work for its clients on temporary assignments. Ms. Uppala was an employee of Logic Planet, which agreed to pay her a salary of $60,000 per year and to provide her health insurance and other benefits.

Jury to Decide Whether Nurse’s Disability Prevented Her From Working

October 22, 2015 | by Jonathan I. Nirenberg

The New Jersey Appellate Division Court recently considered the standard for discharging an employee based on a “perceived disability,” and in so doing reversed a grant of summary judgment to the defendant. In Grande v. Saint Clare’s Health System, the Court applied the standard established in 1998 in Jansen v. Food Circus Supermarkets, Inc., which provides that in evaluating whether an employee can remain in a position despite having a disability, the standard is “whether the handicapped person can do his or her work without posing a serious threat of injury to the health and safety of himself or herself or other employees.” This “requires the employer to conclude with a reasonable degree of certainty that the handicap would probably cause such an injury” before it can fire an employee. According to the Court, in determining whether the employee “poses a materially enhanced risk of serious injury . . . [p]robability, not mere possibility, is key.”

In this case, the plaintiff, Marianne Grande, worked as a nurse for the defendant employer, St. Clare’s Health System, for approximately ten years. During her last three years of employment, she suffered three injuries at work, two injuries to her shoulder and one to her back. Following her back injury, she took family and medical leave followed by personal leave. While on leave, the plaintiff’s physician cleared her to return to work full time without any restrictions. Despite such clearance, the defendant required her to participate in a “functional capacity evaluation test,” to assess her ability to, for example, lift certain objects and move in certain ways. In her role as a nurse, she worked with stroke victims and sometimes was required to move patients.

When the evaluation was completed, it provided for some restrictions. At this time, the plaintiff’s doctor allowed her to return to work in accordance with the restrictions set forth in the hospital’s evaluation. That same day, however, the hospital discharged the plaintiff indicating it could not accommodate her disability given the restrictions set forth in the evaluation. Approximately one month after her discharge, the plaintiff’s doctor cleared her to return to work, again without restrictions. Notwithstanding such clearance, the hospital declined to rehire her.

Employee Can Forfeit Salary Through Extreme Disloyalty to Employer

October 14, 2015 | by Jonathan I. Nirenberg

One important employment law principle is that employees owe a duty of loyalty to their employers. This generally means they cannot act contrary to the interest of their current employer. The New Jersey Supreme Court recently explained that an employee who breaches this duty can be required to pay back the salary he received while he was disloyal, even if the breach did not cause the employer any damage. The concept of requiring an employee to pay back his salary based on his misconduct is called “equitable disgorgement.”

Bruce Kaye owned and managed three separate timeshare businesses in New Jersey, Flagship Resort Development Corporation, Atlantic Palace Development, LLC and La Sammana Ventures, LLC. His employee, Alan Rosefielde, is an attorney who served as the Chief Operating Officer and General Counsel for two of those businesses. Mr. Rosefielde’s salary was $500,000 per year.

The trial court ruled that Mr. Rosefielde violated his duty of loyalty to his employers. For example, when he formed a new business to manage the timeshare properties owned by one of Mr. Kaye’s businesses, Mr. Rosefielde gave himself a larger percentage ownership in the new business than he and Mr. Kaye had agreed. Mr. Rosefielde also falsely claimed another new business he formed would manage sales only for one of Mr. Kaye’s businesses, but tricked Mr. Kaye into signing documents authorizing the new company to manage sales for companies all over the world. Mr. Rosefielde’s other misconduct included receiving reimbursement for $4,000 of personal expenses by falsely claiming they were business expenses, directing someone to forge the signatures of defaulting timeshare unit owners who could not be located to transfer their ownership without foreclosure proceedings, and making misrepresentations to an insurance company to provide health insurance to independent contractors working for Mr. Kaye’s businesses.

Court Finds No Gender Discrimination in Weight Requirements for “Borgata Babes”

October 7, 2015 | by Jonathan I. Nirenberg

A recent decision from the New Jersey Appellate Division holds that the Borgata Casino Hotel & Spa’s did not violate the New Jersey Law Against Discrimination (“LAD”) by requiring certain employees not to gain too much weight.

The Marina District Development Company, LLC, better known as the Borgata Casino Hotel & Spa, has a program called “Borgata Babes.” Under it, the Atlantic City Casino hires attractive men and women to work wearing costumes. The Casino says that being a Borgata Babe requires a “certain appearance to portray a certain image to the public.” It compares the job with being a professional cheerleaders or model.

For instance, the Casino requires female Borgata Babes to have a “natural hourglass shape.” It also prohibits Borgata Babes from increasing their weight by more than 7% over their weight when they were hired, with exceptions for medical reasons and pregnancy. Its policy is to suspend employees who exceed this requirement to give them opportunity to lose weight, and to fire them if they fail to do so.

Employer Must Request More Information Before Denying FMLA Leave Based on Deficient Medical Certification

September 16, 2015 | by Jonathan I. Nirenberg

The Third Circuit Court of Appeals recently ruled that when an employee submits a deficient medical certification in support of a request to take time off pursuant to the Family Medical Leave Act (“FMLA”), the employer has to give the employee an opportunity to correct the deficiencies before it can deny the request. The Third Circuit is the federal appellate court which handles appeals stemming from New Jersey, Pennsylvania, Delaware and the Virgin Islands.

Deborah Hansler worked for Lehigh Valley Health Network as a technical partner. In March 2013, she began experiencing medical symptoms including shortness of breath, nausea and vomiting. On March 13, she requested an intermittent FMLA leave and submitted her doctor’s supporting medical certification form. The certification indicated that she needed two days off per week for approximately a month. However, it did not identify her medical condition because her doctor had not yet diagnosed her.

Ms. Hansler took a total of 5 days off from work for medical reasons between March 13 and March 25, 2013. Lehigh Valley never asked Ms. Hansler or her doctor to explain why she needed this time off. Instead, on March 28, 2013, the company fired her for “excessive absences” including the five days she took off due to her medical condition. When Ms. Hansler reminded Lehigh Valley that she had requested time off pursuant to the FMLA, Lehigh Valley told her it had denied her request for a leave.

No Compensatory Damages for Breach of Non-Compete Agreement Without Proof of Actual Harm

September 8, 2015 | by Jonathan I. Nirenberg

A recent decision from the District of New Jersey recognizes that employers are not entitled to compensatory damages from employee who breach their non-competition agreements unless the employer can prove it would have received the income but-for the violation.

The case involved Jose Munoz and Roberto Abreu, two former employees of Job Connection Services, Inc. (“JCS”). JSC provides employers with job placement and human resources support.

Mr. Munoz and Mr. Abreu each signed one year non-compete agreements with JSC when it hired them. Those agreements prohibited them from owning, operating, or joining a business that directly or indirectly competes with JSC within sixty mile of any JCS office.