New Jersey Employment Lawyer Blog

New Jersey Court Clarifies How to Evaluate Constructive Discharge Claims

November 26, 2013 | by Jonathan I. Nirenberg

A constructive discharge occurs when an employer makes an employee’s working conditions so intolerable that she is forced to resign. This type of forced resignation is legally actionable if it caused by an illegal factor, such as unlawful discrimination or retaliation. Last week, New Jersey’s Appellate Division explained that when deciding if an employee has enough evidence to support this type of claim, a court has to view the evidence collectively rather than looking at each piece of evidence separately.

The woman who filed the case, Cheryl Smith, worked for New Jersey’s Department of Health and Senior Services (DHSS) as a Public Health Consultant II. Ms. Smith took on additional job duties, hoping she eventually would receive a promotion and raise. When it became clear that was not going to happen, Ms. Smith asked the New Jersey Department of Personnel (DOP) to determine if she either was entitled to a promotion, or was performing job duties above her salary grade.

Constructive Discharge Claims in New Jersey.jpg The DOP concluded Ms. Smith was performing work outside of her job title and should be promoted to an Education Program Specialist II with a corresponding raise. However, it found she was ineligible for the promotion because she did not have the required educational background. Accordingly, Ms. Smith asked DHSS to take away her extra job duties. When the DHSS refused, Ms. Smith went back to the DOP, which instructed her employer to remove certain job duties.

When is an Individual Personally Liable for a Company’s Overtime Violations?

November 13, 2013 | by Jonathan I. Nirenberg

Earlier this year, the Second Circuit Court of Appeals ruled that a company’s Chief Executive Officer can be held personally liable for a company’s overtime violations even if he had no personal involvement in violating the law.

In Irizarry v. Catsimatidis, a group of employees filed a class action overtime claim against Gristede’s Foods, Inc. They brought federal claims under the Fair Labor Standards Act (FLSA) as well as claims under the New York Labor Law. They also named the company’s Chief Executive Officer, its District Manager, and its Vice President as individual defendants in the lawsuit.

Eventually, the court ruled in favor of the employees, finding Gristede’s failed to pay them time-and-a-half for their overtime hours, in violation of the FLSA and New York State law. At the time the court did not decide whether any of the individual defendants were personally liable.

New York Law Does Not Protect Unpaid Interns From Sexual Harassment

November 8, 2013 | by Jonathan I. Nirenberg

Earlier this month, a federal judge ruled that neither the New York Human Rights Law (NYHRL) nor the New York City Human Rights Law (NYCHRL) protect unpaid interns from a sexually hostile work environment.

Lihuan Wang worked as an unpaid intern for Phoenix Satellite TV US, a company that produces Chinese language television news programs in the United States. She alleges one of the company’s bureau chiefs, Zhengzhu Liu, invited her to talk to him about her job performance after a group lunch meeting, and then convinced her to go to his hotel room based on the excuse he needed to drop off some personal belongings. During the car ride to the hotel Mr. Liu made Ms. Wang extremely uncomfortable by discussing the sexual prowess of a black man who had dated a woman he knew. In the hotel he complemented Ms. Liu’s eyes before bringing her to his room. Once in his hotel room he asked her why she is so beautiful, threw his arms around her, attempted to kiss her, and squeezed her buttocks before she left.

After Ms. Wang rejected Mr. Liu’s advances, he suddenly stopped showing any interest in hiring her as an employee, and claimed Phoenix could not hire her because of a supposed “visa quota.” When Ms. Wang subsequently asked Mr. Liu about a potential job with Phoenix, he invited her to go to Atlantic City with him for the weekend, supposedly to discuss job opportunities. Ms. Wang declined his invitation and gave up on the possibility of a paid position with Phoenix.

Jersey City Law Requires Employers to Provide Paid Sick Leave

October 31, 2013 | by Jonathan I. Nirenberg

The City of Jersey City recently passed a law that will require private employers to provide their employees 5 paid sick days per year. The law, which is the first of its kind in New Jersey, is scheduled to go into effect on January 24, 2014. New York City Passed a Paid Sick Leave Law earlier this year.

Employers are required to permit employees to use their paid time off for mental or physical health needs, including diagnosis, care, treatment and preventive care. Employees can use this time off to care for their own health needs, the health needs of their spouse, civil union partner, domestic partner, children, grandchildren, parents, grandparents and siblings; as well as for the health needs of the children, grandchildren, parents and grandparents of their spouses, domestic partners, or civil union partners.

In a statement released before the law was passed, Jersey City’s Mayor Steven M. Fulop explained that the right to take time paid medical leave time is “an issue that impacts the most vulnerable in our society and it is the right thing to do.” He further indicated that “[i]n New Jersey, some 1.2 million workers – that’s more than 1 in 3 of us – do not earn paid sick days.”

New Rights for Pregnant Employees in NYC

October 27, 2013 | by Jonathan I. Nirenberg

Mayor Michael Bloomberg recently signed a new law amending the New York City Human Rights Law (NYCHRL) to provide additional protections for women who are pregnant or giving birth. Specifically, the Pregnant Workers Fairness Act requires employers with at least four employees or independent contractors working for them to provide reasonable accommodations for pregnancy, childbirth, or related conditions even if the employee is not disabled. A reasonable accommodation is either a modification to the way a job is performed, or a change to a job duty, that permits the employee to perform the essential functions of her job. The new law goes into effect on January 30, 2014.

Under the NYCHRL, an employer can deny a reasonable accommodation if the employee still would not be able to perform the essential functions of her job, or if providing it would impose an undue hardship on its business. The employer has the burden to prove either of these defenses. In determining whether an accommodation would impose an undue hardship, a company can consider (1) the nature of the accommodation and its cost; (2) the financial and personnel resources of the location at which the accommodation would be provided; (3) the financial and other resources of the entire company; or (4) the composition of the company in terms of the workforce, geographic locations and other similar factors.

Under the Act, an employer must provide reasonable accommodations for pregnancy or child birth if it knows or should know the employee is pregnant. This suggests it is not necessary for an employee to request an accommodation for the employer to be obligated to provide one. Of course, the easiest way to ensure your employer knows you need an accommodation is to request it so there is no doubt your employer knows you need it. The same provision raises the question of what would happen if an employer tries to provide an unnecessary or unwanted accommodation. Presumably this should be addressed in a discussion between the employer and the employee (the “interactive process”), but there still could be issues if the employer believes it is legally obligated to provide an accommodation that the employee does not want.

Can an Indefinite Leave of Absence be a Reasonable Accommodation for a Disability?

October 21, 2013 | by Jonathan I. Nirenberg

Earlier this month, New York’s highest court ruled that although an employee is not entitled to take an indefinite leave of absence as a reasonable accommodation under the New York Human Rights Law (NYHRL), they might be entitled to do so under the New York City Human Rights Law (NYCHRL).

In the case, Giuseppe Romanello worked for Intesa Sanpaola S.p.A. (Intesa) for approximately 25 years. He experienced major depression and other medical conditions that prevented him from working. Accordingly, he took a leave of absence under the Family & Medical Leave Act (FMLA). After a five-month paid leave of absence, the company’s lawyer sent a letter to Mr. Romanello’s lawyer indicating that his FMLA leave time was about to run out, and asking if he intended to return to work or abandon his job. Mr. Romanello’s lawyer responded that although he had no intention of abandoning his job, Mr. Romanello still was medically unable to work for the company, and needed an “indeterminate” leave of absence. The company fired Mr. Romanello in response.

Mr. Romanello then filed a lawsuit claiming his employer discriminated against him because of his disability in violation of the NYHRL and the NYCHRL. Both of those laws prohibit employers from firing an employee because of a disability if the employee can perform his or her job with a reasonable accommodation. Depending on the circumstances, time off can be a reasonable accommodation for a disability.

Governor Christie Signs Two New Employment Laws

September 16, 2013 | by Jonathan I. Nirenberg

On August 30, 2013, Governor Christopher Christie signed two new employment laws. The first law expands the New Jersey Law Against Discrimination (LAD) to protect employees who are trying to obtain information to support a potential claim of pay discrimination. The second new law prohibits employers from asking employees or job candidates to provide their private social media information to the company.

Whistleblower Protection for Employees Providing Information About Pay Discrimination

The first new law amends the LAD to prohibit employers from retaliating against employees because they ask a current or former co-worker about an employee’s “job title, occupational category, and rate of compensation, including benefits.” It also protects employees who ask about another’s employee’s “gender, race, ethnicity, military status, or national origin.” These new whistleblower protections apply only if the information or question is intended to help with an investigation of potential discrimination regarding “pay, compensation, bonuses, other compensation, or benefits.” However, the statute makes it clear it is not intended to require anyone to disclose this information about him or herself or another employee. This amendment to the LAD went into effect immediately.

New Jersey’s Whistleblower Law Protects “Watchdog” Employees Whose Jobs Require Them to Report Violations of Law

September 9, 2013 | by Jonathan I. Nirenberg

New Jersey’s Conscientious Employee Protection Act (CEPA) has long been described as one of the broadest whistleblower laws in the nation. Among other things, it prohibits employers from retaliating against employees because they object to, disclose, or refuse to participate in an activity they reasonably believe is illegal, criminal or fraudulent.

Despite CEPA’s broad reach, several past cases have ruled that employees are not protected by CEPA if their objections were part of their job duties. For example, a safety officer who complains about an unsafe work condition or a human resources manager who reports sexual harassment would not be protected by CEPA under those cases.

But earlier this month, in Lippman v. Ethicon, Inc., New Jersey’s Appellate Division ruled that line of cases is inconsistent with the way the New Jersey Supreme Court has directed courts to interpret CEPA. It ruled that “an employee’s job title or employment responsibilities” should not be the deciding factor in a CEPA case.

Department of Labor Issues Interim Regulations Regarding Obamacare’s Anti-Retaliation Provisions

September 1, 2013 | by Jonathan I. Nirenberg

The Affordable Care Act, also known as “Obamacare,” is not just a health care law. It also includes whistleblower protection. The United States Department of Labor (DOL) recently released interim rules regarding the law’s anti-retaliation provisions.

The Affordable Care Act makes it illegal for employers to retaliate against employees who report certain violations of the Act. Specifically, it protects employees who complaint about apparent violations of its prohibition against (1) lifetime limits on medical insurance coverage, and (2) denying coverage because of a preexisting medical condition. It also prohibits employers from taking reprisal against employees who receive a tax credit or similar benefit for participating in a Health Insurance Exchange. It further protects employees who testify, participate or assist with a proceeding regarding a violation of one of those provisions.

To qualify for whistleblower protection, an employee must have complained to his employer, the federal government, or a state attorney general. In addition, the regulations make it clear the employee does not have to be correct about the violation of law he reported, as long as he had both an objectively reasonable belief (meaning reasonable from the standpoint of the employee who complained) and a subjectively reasonably belief (meaning from the standpoint of a reasonable person) that the company was violating one of the relevant provisions of the Act.

New Jersey Appellate Division Erroneously Reverses Verdict in Wrongful Termination Case

August 8, 2013 | by Jonathan I. Nirenberg

Last week, I discussed Shipe v. Saker Shoprites, Inc. a gender discrimination case which recognizes Employers Can Be Held Liable For Discrimination Even if Decision-Maker Has No Bias. Unfortunately, the Appellate Division found another basis to reverse the jury’s verdict and take away Ms. Shipe’s nearly $900,000 judgment. However, it appears the Appellate Division made two serious errors that led to this unfortunate result.

When an employee brings a discrimination claim, the court first has to make sure there is enough evidence to support the basic element of a discrimination claim. This is called a “prima facie” case. Specifically, in a wrongful termination case an employee ordinarily has to show he or she (1) belongs to a protected class; (2) was employed by the company; (3) was performing her job before being fired, and (4) the employer sought to replace him or her. Alternatively, an employee can meet the fourth element by showing other circumstances that suggest the decision to fire the employee was discriminatory.

Usually, it is up to a judge, rather than a jury, to decide whether an employee has established a prima facie case. However, when there is a dispute about one of the elements it is sometimes necessary for a jury to decide it.

In the Shipe case it was disputed whether the employer sought to replace Ms. Shipe after it fired her. The Appellate Division concluded that the trial judge should have asked the jury whether Ms. Shipe either was replaced by a man, or fired under other circumstances that give rise to an inference of discrimination. In fact, it reversed the jury’s verdict and ordered a new trial because the jury was not asked this question.

I find this ruling perplexing. It is unquestionable the jury found Saker fired Ms. Shipe because of her gender. As I discussed last week, the Appellate Division found that conclusion was supported by sufficient evidence to withstand an appeal. But if the jury found Saker fired Ms. Shipe fired because she is a woman, then the jury had to have found she was fired under circumstances giving rise to an inference of discrimination. If that is true, then why would it be necessary to have a new trial to ask the jury to answer that question again?

The Appellate Division’s ruling appears to be erroneous for a second reason. Specifically, in Zive v. Stanley Roberts Inc., a 2003 case, the New Jersey Supreme Court ruled that when analyzing the prima facie case only the plaintiff’s evidence should be considered. The Appellate Division in Shipe recognized that Ms. Shipe presented evidence that she was replaced by a man. As a result, under Zive the court should have found that Ms. Shipe met the fourth element of her prima facie case. Instead, it reversed the jury verdict and ordered a new trial.

Fortunately, the Shipe decision is unpublished, meaning it is not a binding precedent.