New Jersey Employment Lawyer Blog

New York City to Begin Covert Investigations of Hiring Discrimination

April 24, 2015 | by Jonathan I. Nirenberg

On April 20, 2015, New York City Mayor Bill DeBlazio signed a new employment law into effect. The new law amends the New York City Human Rights Law (“NYCHRL”) to permit the New York City Commission on Human Rights to hire individuals who will either apply for or inquire about job opportunities to determine whether they experience any discrimination that violates the NYCHLR.

Specifically, for a one year trial period these “testers” will conduct at least 5 investigations at New York City businesses. The testers will work in pairs, making sure they have similar qualifications for the job but a difference between them in one legally protected characteristic such as their “actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status.” The New York City Commission on Human Rights will report any actual or perceived discrimination it uncovers during the to its law enforcement bureau.

By March 1, 2017, the Commission is required to prepare a report regarding the information it learns during the investigations, including which protected classes it tested, the number of times there appeared to be discrimination based on each such protected class, and a description of the actual or apparent discrimination uncovered by the investigation.

Reasonable Accommodations for Pregnancy Required Under Federal Law

April 21, 2015 | by Jonathan I. Nirenberg

The United States Supreme Court recently ruled that the federal Pregnancy Discrimination Act (“PDA”) can require employers to provide reasonable accommodations to women who are pregnant even if they are not disabled.

The PDA establishes that pregnancy discrimination in the workplace violates federal law. It also includes a provision that requires employers to treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”

In the case, Peggy Young worked for United Parcel Service, Inc. (“UPS”) as part-time driver. Although UPS requires its drivers to be able to lift packages up to 75 pounds, during the first 20 weeks of her pregnancy Ms. Young’s doctor advised her not to lift more than 20 pounds. UPS provides accommodations to disabled employees who are unable to lift 75 pounds, as well as to employees who have lost their Department of Transportation certifications. The company refused to provide this accommodation to Ms. Young. Instead, it placed her on an unpaid leave of absence during most of her pregnancy. Ms. Young sued, alleging UPS violated the PDA by failing to accommodate her lifting restrictions.

Estimating Settlement Value of Employment Law Cases

April 9, 2015 | by Jonathan I. Nirenberg

Last week, I discussed how to calculate the potential value of a wrongful termination case at a trial. However, most employment law cases settle rather than going to a trial. Accordingly, it also is important to be able to assess the potential settlement value of your case.

Risk of Loss

Since proving discrimination or retaliation requires you to show what is in someone else’s mind, most of these cases are inherently risky. As a result, when trying to determine what might be an acceptable settlement you should factor in the risk that you could lose your case.

Calculating Value of Wrongful Termination Cases at Trial

April 2, 2015 | by Jonathan I. Nirenberg

There is no one way to predict the precise value of an employment law case before a trial. Among other things, juries do not necessarily use any particular formula, and verdicts often represent compromises. However, it is possible to estimate what you might receive if you win your case at a trial.

Economic Damages

To estimate your economic damages in a wrongful termination case, you need to calculate your total annual compensation (salary, bonus, commissions and benefits) from the job you lost. Unless you use an expert, this is likely to require you to estimate the value of some of your lost benefits, and to make assumptions about future raises, discretionary bonuses and commissions.

FMLA Covers Spouses in Same Sex Marriages

March 19, 2015 | by Jonathan I. Nirenberg

New regulations issued by the United States Department of Labor (DOL) make it clear that the Family & Medical Leave Act (FMLA) protects spouses in same sex marriages.

The FMLA is a federal law which, among other things, guarantees covered employees can take up to 12 weeks per year off from work to care for their own serious health condition, a serious health condition of a member of their immediate family, or for pregnancy, childbirth or adoption. To be covered, an employee must have worked for the employer for at least 12 months, worked at least 1,250 hours for the employer during the previous 12 months, and worked at a location at which the employer has at least 50 employees within a 75 mile radius.

The FMLA defines “immediate family” to include a parent, child or spouse. However, until last year’s Supreme Court decision in United States v. Windsor, the federal government did not recognize same sex marriages. Therefore, the FMLA did not protect employees in same sex marriages to the same extent it protects employees in opposite sex marriages. The new regulations are intended to correct this problem.

Company Can Require Release Before Rehiring Former Employees

March 11, 2015 | by Jonathan I. Nirenberg

A recent employment law case recognizes that in certain circumstances, an employer does not violate federal law if it requires former employees to sign away their legal claims against it as a condition to rehiring them as independent contractors.

In 1999, Allstate Insurance Company decided to treat all of its sales agents as independent contractors. Accordingly, that November Allstate fired 6,200 sales agents and gave them four options: (1) return to work as an independent contractor and receive a $5,000 bonus and other benefits; (2) receive $5,000 and the right to sell the employee’s Allstate account in September 2000; (3) receive 12 months of “enhance severance” pay; or (4) receive 13 weeks of ordinary severance pay.

To accept any of the first 3 options, a sales agent was required to sign a release waiving any existing legal claims he or she had against Allstate. Most of the employees accepted one of those three options. The employees who refused to sign releases received only 13 weeks of severance pay.

New Jersey Supreme Court Prohibits Post-Verdict Ex Parte Communications Between Judge and Jury

February 20, 2015 | by Jonathan I. Nirenberg

In a recent employment law case, Davis v. Husain, the New Jersey Supreme Court held that a judge may not engage in any communication with a member of the jury outside of the presence of the lawyers involved in the case (known as ex parte communications), including discussions after the jury has rendered a verdict. In this case involving a claim of sexual harassment, the jury found plaintiff’s former employer liable for having engaged in sexual harassment. After the verdict was rendered and the jury was dismissed, a juror mentioned to the trial court judge that the defendant had not placed his hand on the Bible when taking the oath before he testified. The conversation between the judge and the juror occurred outside the presence of counsel involved in the case.

The judge later advised the attorneys for both parties of the comment by the juror. In motions filed after the trial, the defendant moved for a new trial. The trial court denied the motion, and the Appellate Division agreed with the trial Court. The defendant then appealed to the New Jersey Supreme Court.

In reaching a decision in the case, the Supreme Court noted that under the Court Rules all communications between a judge and a jury during a trial must be in open court. The Court considered two Appellate Division cases in New Jersey, a civil case and a criminal case. In both of these cases, the Appellate Division expressed disfavor as to the ex parte communications between the judge and jury after the jury reached a verdict.

Importance of Reporting Sexual Harassment Reinforced by New Jersey Supreme Court

February 13, 2015 | by Jonathan I. Nirenberg

New Defense to Sexual Harassment Claims

Earlier this week, in Aguas v. State of New Jersey, the New Jersey Supreme Court provided employers a new defense to sexual harassment claims under the New Jersey Law Against Discrimination (“LAD”).

Specifically, the Court adopted a defense that previously applied only in federal cases. That defense is often referred to as the “Faragher/Ellerth defense,” from the two United States Supreme Court cases that initially adopted the defense under federal law: Faragher v. City of Boca Raton and Burlington Industries v. Ellerth.

New Jersey Prohibits Religious and Political Intimidation at Work

February 10, 2015 | by Jonathan I. Nirenberg

New Jersey has many well-known laws that protect employees. Perhaps the two best know are the New Jersey Law Against Discrimination (“LAD”), an anti-discrimination law, and the Conscientious Employee Protection Act (“CEPA”), a whistleblower law. The state has many other employment laws as well.

One much less known law is the Worker Freedom From Employer Intimidation Act, which went into effect in 2006. It protects employees against certain forms of religious and political intimidation at work. Specifically, it prohibits companies from requiring employees to attend meetings or to participate in communications regarding the employer’s opinion about religious or political issues. The law defines “political matters” to include affiliation with a political party, as well as decisions to join, not join, or participate in “any lawful political, social, or community organization or activity.”

Despite that prohibition, the act allows employers to invite employees to voluntarily attend employer-sponsored meetings and to provide other religious and political communications to their employees as long as make it clear the employees will not be penalized if they refuse to attend the meetings or accept the communications.

Oral Employment Contract Claim Permitted by New Jersey Court

February 2, 2015 | by Jonathan I. Nirenberg

A recent case, Kaplan v. Greenpoint Global, provides a good example of several claims an employee might be able to bring if an employer fails to live up to the promises it made.

On December 1, 2010, Leslie Kaplan began working for Greenpoint Global as its Director of Legal Services. Greenpoint is a company that outsources legal services to businesses, law firms and individuals.

Before accepting the job, Ms. Kaplan told Greenpoint’s Chief Executive Officer, Jacklyn Karceski, that her most recent salary exceeded $200,000 and she was seeking similar compensation from Greenpoint. Ms. Karceski indicated that her goal was realistic. Ms. Kaplan also told the company’s founder, Sanjay Sharma, that her salary needed to “start with a two.” Mr. Sharma responded “No problem.” According to Ms. Kaplan, she relied on these assurances by Greenpoint and declined pursuing an opportunity to return to her former job. Despite its promises, Greenpoint actually paid Ms. Kaplan at the rate of $80,000 per year.