New Jersey Employment Lawyer Blog

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Earlier this month, the United States Court of Appeals for the Second Circuit issued an unpublished summary order which reinstates an employee’s sexual harassment claim that had been dismissed.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.

Newark New Jersey Passes Paid Sick Leave Law

March 11, 2014 | by Jonathan I. Nirenberg

The City of Newark recently enacted an ordinance requiring certain employers to provide paid sick leave to their employees. Newark is now the second city in New Jersey to pass a paid sick leave law. As discussed in a previous article, effective January 24, 2014, Jersey City Law Requires Employers to Provide Paid Sick Leave.

To Whom Does the Law Apply?

The Ordinance applies to most employees who work in Newark for at least 80 hours per year. However, it does not apply to the federal, state or local government, or to employees of any school district or Board of Education, including Rutgers University.

Court Finds Retaliation Based on When Employee Was Replaced

February 25, 2014 | by Jonathan I. Nirenberg

To prevail in a retaliation lawsuit you have to prove your employer took an adverse action (such as demoting or firing you) because you engaged in a legally-protected activity. For example, if your employer fired you after you complained you were not being properly paid for working overtime you would have to prove there was a connection between your complaint and the company’s decision to fire you. This is called a “causal link.”

There are many different ways to prove a causal link in a retaliation case. Some of the most common ways include evidence your employer fired you quickly after you objected, a decision-maker was angry about your objection, or the company’s explanation for firing you is false. A recent New Jersey case, Goldsmid v. Lee Rain, Inc., finds another potential way to prove retaliation: Based on evidence the employer had someone ready to replace you very quickly after it fired you.

Craig Goldsmid worked for Lee Rain, Inc. in Vineland, New Jersey, most recently in the company’s warehouse. Although Lee Rain initially paid him by the hour, in early 2010 it began paying him a salary.

Can Your Former Employer See Your Current Employment Records as Part of Your Discrimination Lawsuit?

February 13, 2014 | by Jonathan I. Nirenberg

A case decided earlier this month addresses a question that periodically comes up in employment law cases: Will your former employer be able to obtain your personnel file from your current employer if you file an employment discrimination or retaliation lawsuit?

During an employment lawsuit, the employer and employee engage in a process called discovery. Discovery involves an exchange of information between the parties, including requests for documents, written questions called interrogatories, and oral questions at a deposition. In addition, either side has the right to issue subpoenas requiring non-parties to provide relevant documents and information. The purpose of discovery is to allow each side to gather evidence to support its case and evaluate the other side’s position.

Discovery is supposed to be broad. However, it has limits. For example, it only is supposed to be used to try to learn something relevant about your case, and not to harass or punish the other side. Unfortunately, there often are disagreements about whether a discovery request is being used for a proper purpose. The question of whether your former employer is entitled to obtain copies of records from your current employer is one such issue that can arise during an employment law case.

New Jersey Court Finds Protection for Whistleblower Who Objected as Part of Job

February 5, 2014 | by Jonathan I. Nirenberg

Last week, New Jersey’s Appellate Division revisited the question of whether an employee who blows the whistle about an activity related to his job duties can be protected by New Jersey’s Conscientious Employee Protection Act (CEPA). This time, the court concluded the employee can proceed with his claim even though he blew the whistle about an issue related to his job.

There is a split in legal authority over this issue. As I discussed in a previous article, New Jersey’s Whistleblower Law Protects “Watchdog” Employees Whose Jobs Require Them to Report Violations of Law, last September another panel of the Appellate Division ruled an employee whose job is focused on corporate safety or compliance issues is protected by CEPA only if he (1) “pursued and exhausted all internal means of securing compliance” or (2) “refused to participate in the objectionable conduct.” In contrast, several previous cases have ruled that employees who object about violations of the law in the course of performing their jobs are not protected by CEPA.

The latest case to address this issue is Dukin v. Mount Olive Township Board of Education. Robert Dukin worked for the Mount Olive Township Board of Education as an auto-mechanic. In early January 2010, he told his supervisor about a number of safety concerns about a particular school bus. The next time Mr. Dukin was at work, he saw a bus driver preparing to drive the unsafe bus. After confirming the bus had not been repaired, Mr. Dukin told the bus driver not to drive it. He then reported this to the New Jersey Motor Vehicle Commission’s on-site inspector, who directed Mount Olive to take the bus out of service.

Court Upholds New Jersey Law Prohibiting Job Ads Requiring Job Applicants Who Are Currently Employed

January 30, 2014 | by Jonathan I. Nirenberg

As I discussed in a previous article, in 2010 New Jersey passed a law Prohibiting Companies From Saying Unemployed Job Candidates Need Not Apply. With limited exceptions, this relatively new anti-discrimination law prohibits employers from advertising that job applicants must have a current job to be eligible to be hired, interviewed or considered for a job opening. Earlier this month, a court upheld that law against a challenge from an employer who claimed the law violated its rights under the First Amendment.

The case was initiated by a company, Crest Ultrasonics, and its Chief Executive Officer, J. Michael Goodson. They had advertised a job opening for the position of Service Manager in a newspaper. The advertisement stated that a job candidate “must be currently employed,” in violation of the unemployment insurance discrimination statute.

Two people complained to the New Jersey Department of Labor (“DOL”) about Crest’s job ad. The DOL investigated and subsequently fined Crest and Mr. Goodson a total of $1,000. Crest and Mr. Goodson challenged the fine, claiming it violated their right to free speech guaranteed by the First Amendment to the United States Constitution and the New Jersey Constitution. The Commissioner of the DOL upheld the fine. Crest and Mr. Goodson appealed.

New Jersey Passes Law Prohibiting Pregnancy Discrimination

January 22, 2014 | by Jonathan I. Nirenberg

Yesterday, Governor Christie signed a law that prohibits pregnancy discrimination in New Jersey. The Act, which is an amendment to the New Jersey Law Against Discrimination (“LAD”), adds pregnancy to the list of legally protected categories. Importantly, it defines “pregnancy” broadly to include not only pregnancy itself but also childbirth, medical conditions related to pregnancy or childbirth, and recovery from childbirth.

The new law is expressly premised on the fact that “pregnant women are vulnerable to discrimination in the workplace in New Jersey.” It notes that “women who request an accommodation that will allow them to maintain a healthy pregnancy, or who need a reasonable accommodation while recovering from childbirth, are being removed from their positions, placed on unpaid leave, or fired.” Its goal is to eliminate those forms of discrimination from the workplace.

In the past, many court opinions have found pregnancy discrimination to be a form of unlawful gender discrimination. However, not every court has agreed, leaving some uncertainty in the law. This new law removes any doubt that it is unlawful for an employer to treat a woman worse because of her pregnancy or childbirth, and makes it clear that employers cannot treat pregnant women less favorably than their similarly situated coworkers.

Proving Age Discrimination When You Are Replaced by Someone Only Slightly Younger

January 21, 2014 | by Jonathan I. Nirenberg

Age discrimination occurs frequently but often is subtle. You may be certain you were fired because of your age, but not have any direct proof or “smoking gun” evidence. Fortunately, that does not necessarily mean you cannot prove your claim.

Employees who want to prove they were fired because of their age frequently try to show their employers replaced them with someone significantly younger. However, as a recent case demonstrates, this is not difficult to do and is not necessarily required.

Marion Cohen worked for the University of Medicine & Dentistry of New Jersey (UMDNJ) as an associate professor of anatomy and cell biology and injury sciences pursuant to a series of one, two and three-year employment contracts. In late 2008 or early 2009 UMDNJ informed her it was not going to renew her contract, supposedly due to budget cuts. At the time, Ms. Cohen was 69 years old.