New Jersey Employment Lawyer Blog

Employee’s Objection Must Relate to Violation of Measurable Standard to be Protected by CEPA

June 25, 2014 | by Jonathan I. Nirenberg

On June 16, 2014, the New Jersey Supreme Court ruled that by the Conscientious Employee Protection Act (“CEPA”) did not protect an employee who was fired after he objected because the nursing home for which he worked was not taking sufficient steps to prevent the spread of infectious disease. In the process, it concluded that to be protected by CEPA an objection has to relate to a measurable standard or requirement.

CEPA is New Jersey’s broad “whistleblower” law. Among other things, it prohibits employers from retaliating against employees because they object about activities they reasonably believe constitute “improper quality of patient care,” including any professional code of ethics, or are “incompatible with a clear mandate of public policy concerning the public health.”

James Hitesman, a registered nurse, worked for Bridgeway, Inc., at nursing home in Bridgewater, New Jersey. Bridgeway fired Mr. Hitesman after he complained to the company’s management about high rates of infectious diseases at the nursing home, and raised similar concerns to the Somerset County Department of Health, New Jersey Department of Health and Senior Service, and a television reporter. He sued, claiming Bridgeway fired him in violation of CEPA.

New Jersey Supreme Court Limits Private Lawsuits Under Civil Rights Act

June 10, 2014 | by Jonathan I. Nirenberg

Recently, the New Jersey Supreme Court ruled that private claims under the New Jersey Civil Rights Act (NJCRA) are limited to claims against individuals who were acting “under color” of state law. In other words, you can bring a private lawsuit under the NJCRA, but only against someone who was acting in his or her capacity as an employee or agent of the state or local government.

The case was brought by Maryann Cottrell, a resident of Glassboro, New Jersey. Ms. Cottrell apparently made negative comments about Zagami LLC at its public liquor license renewal hearing. Zagami is a company that owns a restaurant and bar in Glassboro. The company subsequently sued Cottrell, claiming her statements at the hearing were defamatory.

Zagami’s lawsuit eventually was dismissed by the Appellate Division. It found that since the liquor license renewal hearing was a “quasi-judicial” proceeding, Ms. Cottrell’s statements at it were protected by absolute immunity, meaning she could not be sued for anything she said at the hearing.

Court Permits Employee to Proceed With Reverse Discrimination Lawsuit

May 21, 2014 | by Jonathan I. Nirenberg

While minorities are most frequently the victims of discrimination, it is well-established that reverse discrimination also violates the New Jersey Law Against Discrimination (LAD). For example, it is unlawful for a company to discriminate against an employee because he is male, white, or under 40 years old. However, since reverse discrimination is less common, New Jersey courts have established a higher standard for employees who bring reverse discrimination or harassment claims by requiring them to present evidence that they work for the unusual employer that discriminates against the majority.

Warehouse A recent decision out of the United States District Court for the District of New Jersey denied an employer’s motion to dismiss a claim of reverse race discrimination, finding the employee had enough evidence to meet this heightened standard. The court explained there are two categories of evidence that employees can use to help meet this standard: (1) evidence that the specific employer has a reason to want to discriminate against the majority, and (2) evidence there is “something ‘fishy’” about the facts of the case that suggests the employer is discriminating.

The case was brought by Frank McQuillan, who worked for Petco Animal Supplies Stores, Inc., as an order picker at a distribution center in Monroe, New Jersey. Mr. McQuillan claims Petco harassed him because he is Caucasian.

Federal Court Permits Employee’s Sexual Harassment Claim to Proceed

May 14, 2014 | by Jonathan I. Nirenberg

A recent federal case from the District of New Jersey denied an employer’s motion for summary judgment on an employee’s sexual harassment case, paving the way for a jury trial. In the process, the court provided a good overview of what an employee needs to prove to be able to survive such a motion and get a case to a jury.

Joan Lane worked as a Material Handler for Sears Logistics Services, Inc. She was the only female who held this role on her floor. She claims the Material Handler Lead for her shift, Louis Fine, engaged in unwelcome conduct toward her including (1) calling her a “b*tch;” (2) calling her “dumb;” (3) “inviting her to [his] penis;” (4) claiming “all [she] wants is my d*ck;” (5) telling her to sit on his face; (6) making sexual gestures to her; and (7) claiming a temporary employee wanted her body. Ms. Lane eventually filed a lawsuit against her employer claiming Mr. Fine created a sexually hostile work environment for her in violation of the New Jersey Law Against Discrimination (LAD).

As the court explained, in a sexual harassment case the employee has to prove the conduct toward her (1) would not have occurred but for her gender, and (2) was severe or pervasive (frequent) enough (3) to make a reasonable woman believe the terms and conditions of her employment were changed and her work environment is hostile or abusive. The judge found Ms. Lane has enough evidence to meet each of those requirements. He indicated that even though Mr. Fine denied Ms. Lane’s allegations, for purposes of deciding a motion for judgment the court has to assume all of her testimony and evidence is true because it is the jury’s job to decide who is telling the truth. The judge further recognized that Ms. Lane’s evidence could support the conclusion that she was the victim of severe or pervasive sexual harassment. Moreover, he found a jury could conclude the harassment occurred because of her gender since she was the only female Material Handler on her floor and some of Mr. Fine’s conduct toward her was sexual in nature.

New York City Amends Human Rights Law to Protect Interns From Discrimination

May 1, 2014 | by Jonathan I. Nirenberg

Last last year, I discussed a federal case, Wang v. Phoenix Satellite TV US, Inc., which concludes that New York Law Does Not Protect Unpaid Interns From Sexual Harassment. While that still may be true in the rest of New York State, New York City recently amended its anti-discrimination law to make it clear that both paid and unpaid interns are protected by the New York City Human Rights Law (NYCHRL).

Specifically, on April 15, 2014, Mayor Bill de Blasio signed into law an amendment to the New York City administrative code which will protect interns in the same way the code currently protects employees. The law goes into effect sixty days after it was signed. As a result, starting on June 16, 2014, New York City law will protect interns who work in Manhattan, Brooklyn, the Bronx, Queens and Staten Island from discrimination based on their actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage, citizenship, or status as a victim of domestic violence, a sex offense or stalking. Likewise, New York City law will prohibit employers from harassing interns based on any of those categories, including prohibiting sexually harassment. It also will prohibit employers from retaliating against interns because they complain about employment discrimination or harassment in the workplace.

The new law defines “intern” to include anyone who (1) receives training or supplements the training they are receiving in an educational environment and (2) receives work experience for the benefit of an employer, and (3) does so under the close supervision of an employer’s staff. It includes such individuals irrespective of whether he or she is paid or unpaid. It is unclear whether this may leave a gap of individuals who do not fit the administrative code’s definition of either “employee” or “intern,” such as individuals who receive the required training or work experience, but not both. However, the alternative potentially would have covered students who receive training for universities and other educational institutions, a group which the New York City Council apparently did not intend to protect.

Third Circuit Finds Individual Owners and Successor Company Can Be Liable for Overtime Violations

April 16, 2014 | by Jonathan I. Nirenberg

The Third Circuit Court of Appeals recently reinstated an employee’s class action overtime pay lawsuit under Fair Labor Standards Act (FLSA) and the New Jersey Wage and Hour Law (NJWHL). In doing so it recognized successor companies can be liable for their predecessors’ overtime violations, and individual owners and supervisors can be held personally liable under both of those laws.

Patricia Thompson was hired by Security Atlantic Mortgage Company as a mortgage underwriter in June 2009. Security Atlantic quickly assigned her to provide training at a related company, Real Estate Mortgage Network (REMN). In February 2010, Security Atlantic stopped doing business and Ms. Thompson began working directly for REMN. Otherwise, her job and the business remained essentially the same.

Ms. Thompson claims Security Atlantic and REMN both failed to pay her and other mortgage underwriters time-and-a-half when they worked more than 40 hours per week, in violation of both the FLSA and the NJWHL. Specifically, she alleges mortgage underwriters worked through lunch and at home to complete their assignments on time, but were not paid overtime because the companies misclassified them as exempt employees.

Inability to Sit for Long Time Can Be Disability Under Americans with Disabilities Act

April 9, 2014 | by Jonathan I. Nirenberg

The Americans with Disabilities Act (ADA) is a federal law that prohibits employers from discriminating against employees because they are disabled. It defines a “disability” as a physical or psychological impairment that substantially limits a major life activity. As a result, not every impairment is a disability. In contrast, the New Jersey Law Against Discrimination (LAD), the New York Human Rights Law (NYHRL) and the New York City Human Rights Law (NYCHRL) all have significantly broader definitions of the term “disability” including relatively minor mental and physical impairments.

Late last month, the Second Circuit Court of Appeals recognized that an impairment that prohibits an employee for sitting for too long can be a disability even under the ADA. The employee, Carmen Parada, worked for Banco Industrial de Venezuela, C.A. Approximately six months after she started working for the bank, Ms. Parada fell and hurt her back. As a result, she no longer is able to sit for a prolonged period. According to one of her medical reports, she is able to sit for only 15 minutes before she has to stand.

Ms. Parada asked the bank for an ergonomic chair which she believed would have allowed her to perform her job. The bank did not respond to her requests so she asked again, this time offering to pay for the chair herself. When she still did not receive any response she told the bank she could not continue to perform her job without a new chair. When the bank’s Operations Manager finally told Ms. Parada he would discuss her request when he returned from a business trip she complained to the Compliance Officer and requested a leave of absence. Ultimately, the bank fired Ms. Parada, claiming she failed to provide sufficient documentation to prove she was disabled and needed a medical leave, and declaring it considered her to have abandoned her job.

Firing Employee Eight Days After Objection Enough to Prove Retaliation

April 1, 2014 | by Jonathan I. Nirenberg

There are many ways to prove a retaliation claim. Often, a key factor is the closeness in time between when the employee blows the whistle and when the employer takes an adverse employment action against her, such as firing or demoting her. In most situations timing alone is not enough to prove retaliation. However, timing alone can be enough if it is “unusually suggestive” of retaliation.

There is no clear answer to how little time can be considered “unusually suggestive.” But in a recent case the United States District Court for the District of New Jersey ruled a jury can find retaliation because the employer fired the employee eight days after her last protected activity.

Zalinskie v. Rosner Law Offices, P.C., Linda Zalinskie claims her employer, Rosner Law Offices, P.C., fired her because she complained about violations of the Fair Labor Standards Act (FLSA). In contrast, the firm claims it spoke to Ms. Zalinskie about problems with her job performance and attitude nearly a year before she made these complaints, moved her into a new position at the time, and ultimately fired her because her performance and attitude did not improve.

Court Permits Sexual Harassment Claim Even Though Harasser Treated Both Women and Men Poorly

March 24, 2014 | by Jonathan I. Nirenberg

Earlier this month, the United States Court of Appeals for the Second Circuit issued an unpublished summary order which reinstates an employee’s sexual harassment claim that had been dismissed. However, in a separate published opinion issued on the same day the court upheld the dismissal of Ms. Castagna’s related tort claims because she did not file her lawsuit until after the statute of limitations had expired.

Patricia Castagna worked for Majestic Kitchens, Inc., as its receptionist. She alleges Bill Luceno, who is the owner of the company and was Ms. Castagna’s supervisor, harassed her because of her sex in violation of Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law (“NYSHRL”). Prior to the appeal, the trial court had dismissed those claims because Ms. Castagna admitted Mr. Luceno treated virtually all of the company’s employees poorly.

In support of her sexual harassment claims, Ms. Castagna claims Mr. Luceno physically threatened her and two other female employees with physical violence, but never physically threatened any male employees. For example, she claims that on one occasion he screamed and cursed before he shoved her computer monitor toward her, which caused her to fear for her safety. Although she acknowledges Mr. Luceno’s had outbursts toward both male and female employees of Majestic, she claims the most extreme outbursts were directed toward women, and that during some of his outbursts he referred to women as “bitch[es].”

Sarbanes-Oxley Act Protects Whistleblowers Employed by Private Companies

March 17, 2014 | by Jonathan I. Nirenberg

Earlier this month, the United States Supreme Court ruled that the whistleblower protection of the Sarbanes-Oxley Act applies not only to employees of publicly traded companies, but also to employees of privately held companies who perform work for the publicly traded company as contractors or subcontractors.

The Sarbanes Oxley Act is a 2002 law that was passed in 2002 in response to the collapse of Enron Corporation. It includes an anti-retaliation provision that prohibits public companies, as well as their employees and agents from firing, harassing, demoting, suspending, or otherwise discriminating against employees who blow the whistle on certain activities prohibited by the Act.

The case, Lawson v. FMR LLC, involves the Fidelity family of mutual funds, which has no employees of its own. The whistleblowers were Jonathan M. Zang and Jackie Hosang Lawson, both of whom were employed by different subsidiaries of the same parent company, FMR LLC. Their employers are private companies that manage and advise the Fidelity family of mutual funds.