New Jersey Employment Lawyer Blog

New York City Passes Paid Sick Leave Law

June 1, 2013 | by Jonathan I. Nirenberg

The City of New York recently passed the Earned Sick Leave Act, a new law that will require employers in New York City to provide employees a minimum amount of sick leave per year. Specifically, employers will have to provide at least 1 hour of sick time for every 30 hours an employee works, with a maximum requirement of 40 hours of sick time to an employee each year. It only applies to employees, not independent contractors. It does not apply to professional employees, even if they are paid by the hour.

Initially, employers with more than 20 employees must pay employees during the required sick leave. Eventually, that requirement will apply to companies with at least 15 employees. Smaller employers will only be required to provide unpaid sick leave. Companies will be permitted to count paid time off, such as paid vacation, personal days or days of rest, toward the required paid sick time, and can count other paid or unpaid time off toward the required unpaid sick time.

New York City employees will be entitled to use their sick leave time for their own mental or physical illness, injury, medical diagnosis, or preventive medical care; or to care for a family member who needs care or treatment for a mental or physical illness, injury or health condition, a medical diagnosis, or preventive medical care. The law defines family members to include the employee’s child, parent, spouse, domestic partner, or the child or parent of the employee’s spouse or domestic partner. Employees also will be able to use sick leave if their workplace or their child’s school or childcare provider is closed by a public official due to a public health emergency.

The new law indicates that employees can carry over sick time that they did not use in one year to the next, unless the company decides to pay them for their unused time. Companies are not obligated to let employees use more than 40 hours of sick time in a single year. But employers are not required to pay employees for their unused sick time, even when the company lays them off or fires them.

The Act includes an anti-retaliation provision which prohibits employers from threatening, disciplining, firing, demoting, suspending, reduction hours, or taking any other adverse employment action against any employee because he exercised (or attempted to exercise) his rights under the law. Importantly, it requires employees who want to bring a legal claim to file a complaint with the New York City Department of Consumer Affairs within 270 days after he knew or should have known about a violation. The law also includes provisions to protect the identity of individuals who bring claims under it, presumably out of concerns for workplace privacy.

The Earned Sick Leave Act will not begin to go into effect until April 1, 2014, at the earliest, and will be fully in effect by October 2016, at the latest. Once the law goes into effect, employees will begin to earn sick time. However, companies do not have to allow employees to use their sick time for 120 after it goes into effect. Similarly, companies do not have to permit employees to begin using this sick leave until 120 after they begin their job.

Court Holds Supervisor Can Be Held Personally Liable for Aiding and Abetting Own Violation of New Jersey Law Against Discrimination

May 24, 2013 | by Jonathan I. Nirenberg

Last week, I discussed a case in which New Jersey’s Appellate Division ruled a Jury Must Decide Whether Workers Are Employees or Independent Contractors Under New Jersey Law Against Discrimination. The same case also concludes that supervisors can be held personally liable under the New Jersey Law Against Discrimination (“LAD”) even if the supervisor was the only one who participated in the harassment or discrimination.

The LAD does not make supervisors or other individuals directly liable for engaging in prohibited discrimination or harassment. Instead, it makes it unlawful for anyone “to aid, abet, incite, compel or coerce” a violation of the LAD. As a result, courts have struggled with the question of whether a supervisor can be held personally liable for aiding and abetting harassment or discrimination if he was the only one who participated in it. Some courts have held there is no personal liability under those circumstances since the supervisor did not aiding or abetting anyone else. But, in Rowan v. Hartford Plaza LTD., LP, the Appellate Division ruled such a supervisor could be held personally liable for aiding and abetting the company’s violation of the LAD even if the only way the company violated the LAD was through the supervisor actions.

The New Jersey Supreme Court has previously recognized employees can be held liable for aiding and abetting a violation of the LAD if they engaged in “active and purposeful conduct.” That means the supervisor has to have been aware he engaged in an act prohibited by the LAD that harmed another employee, and in doing so knowingly and substantially assisted his employer in violating the LAD. In determining whether a supervisor did so, a judge or jury must consider: (1) the ways in which the supervisor participated in the harassment or discrimination, (2) the extent to which the supervisor assisted the harassment or discrimination, (3) whether the supervisor was present when the harassment or discrimination actually occurred, (4) the supervisor’s relationship to the other employees involved in the harassment or discrimination, and (5) the supervisor’s own motives and intentions.

In ruling that a supervisor can be held personally liable for aiding and abetting a violation of the LAD he committed by himself, the Appellate Division explained that supervisors have a unique role in shaping a work environment and are responsible for preventing and correcting unlawful harassment in the workplace. It also relied on the fact that previous cases have recognized supervisors can violate the LAD if they affirmatively assisted the harassment or discrimination, or if they acted with deliberately indifference toward it. The Court found it would not make sense if a supervisor could be held liable for failing to stop someone else from committing harassment or discrimination, but could not be held liable for personally committing the same harassment or discrimination.

It is important to note that Rowan is an unpublished opinion, meaning it is not legally binding on future trial courts. As a result, the question of whether and when a supervisor can be held personally for his or her own acts of unlawful harassment or discrimination remains an open question.

Jury Must Decide Whether Workers Are Employees or Independent Contractors Under New Jersey Law Against Discrimination

May 16, 2013 | by Jonathan I. Nirenberg

New Jersey’s Appellate Division recently analyzed whether three individuals were employees or independent contractors for purposes of the New Jersey Law Against Discrimination (LAD). The Court ruled that since there is a factual dispute whether they were employees or independent contracts, the question has to be answered by a jury. The issue is important since the court also concluded the LAD only protects employees, but not independent contractors, from hostile work environment sexual harassment cases. As discussed in a previous article, Sexual Harassment of Independent Contractor Can Violate New Jersey Law Against Discrimination when it results in the contractor losing her job because the LAD prohibits companies from refusing to contract with someone based on their sex.

The case involved three women, Janet Rowan, Kathleen Lownes, and Nancy Heidler, who worked for a group of companies owned by the same two individuals, Joseph Samost and Iva Samost. They alleged Joseph Samost created a sexually hostile work environment for them in violation of the LAD. The trial judge concluded the three women were independent contractors rather than employees, and as a result dismissed their claims.

However, last month in Rowan v. Hartford Plaza LTD., LP, New Jersey’s Appellate Division reversed that decision. It explained there are twelve factors to consider when deciding if someone is an employee or an independent contractor under the LAD. It found three of those factors, the employer’s right to control the worker’s performance, whether the work is supervised or unsupervised, and the level of skill required for the work, supported finding the women were employees since Joseph Samost supervised their work, and their jobs primarily involved unskilled clerical and office work such as filing faxing, copying, and making telephone calls. Similarly, it found another factor, whether the work is an integral part of the business of the company, was supported by the fact that the type of work they performed is necessary to any business. It also noted the fact that they were allowed to work from home did not suggest they were independent contractors since it is common for employees to work from home.

The appellate court found two additional factors, the length of time the individual has worked for the company and the way the work relationship ended, could support finding the women were employees since two of them were told they were fired due to a “restructuring” of the office rather than because of the completion of a particular job assignment. Similarly, it found two other factors, the method of payment and whether the company paid social security taxes were neutral, since the company paid the women “off the books” without issuing a W2 (which would have suggested they are employees) or a 1099 (which would have suggested they were independent contractors). Finally, the Court was unable to determine which position was supported by the last factor, the intent of the parties, since each side gave self-serving testimony in that regard.

As a result, the Appellate Division concluded that a jury has to decide whether the women were employees who are protected from hostile work environment sexual harassment, or independent contractors who are not.

New Jersey Court Reverses Dismissal of Sexual Orientation Discrimination Case

May 7, 2013 | by Jonathan I. Nirenberg

Earlier this month the New Jersey Appellate Division permitted an employee to continue with his sexual orientation discrimination claim against his former employer, finding there is enough evidence to support his claim.

Ronald Savoie, who happens to be gay, had a distinguished career as a teacher at The Lawrenceville School for more than two decades. He lived in a house owned by the school with his partner, Richard Bierman. In 2002, eight school buildings and grounds employees entered Mr. Savoie’s basement to repair a broken water main outside his house. In the basement, they saw some sort of sexual apparatus hanging from chains on the ceiling. Some of the employees also described seeing other items in the basement including a computer, a tripod without a camera, and videotapes.

A year later, when the school was replacing the condensing units and water heaters in the houses on Mr. Savoie’s street, several of the employees who had been in his basement the year before indicated they were uncomfortable returning to his house. When they described to their supervisor what they had seen in Mr. Savoie’s basement the year before, they listed additional items including a video camera, a television, a bed with mirrors, latex gloves, and diapers. Their boss repeated this information to the school’s Dean of Faculty, its Associate Head Master, and its Chief Financial Officer (CFO).

The Dean then met with Mr. Savoie, gave him a pre-written resignation letter, and told him he would be fired unless he agreed to resign. According to Mr. Savoie, the Dean accused him of transmitting sexually explicit images over the Internet, and indicated he could not trust him with students as a result. Although Mr. Savoie signed the resignation letter, he attempted to rescind it the next day. The school rejected his attempt to withdraw his resignation.

Mr. Savoie then sued the school and several of its employees, claiming they fired him because of his sexual orientation, in violation of the New Jersey Law Against Discrimination (LAD). In response, the school claimed it asked Ms. Savoie to resign because it believed he was sending sexually explicit pictures of activities taking place in his basement over the Internet, in violation of the school’s standards of personal and professional behavior, which it claims jeopardized its reputation. The trial court eventually dismissed Mr. Savoie’s case, concluding that even if he did not actually send sexually explicit materials over the Internet, the school reasonably believed he had done so and legitimately fired him as a result.

However, in Savoie v. Lawrenceville School, the Appellate Division reversed. It ruled that although a jury could reach the same conclusion as the trial judge, it also could determine that the school would not have reacted the same way if Mr. Savoie was heterosexual. The appellate court relied on the fact that (1) the school relied on the secondhand information from the supervisor of the employees who were in Mr. Savoie’s basement instead of conducting a proper investigation; (2) Mr. Savoie disputes the school’s claim that he admitted sending sexually explicit images over the Internet; (3) the school’s Associate Head Master made a disparaging comment about Bierman’s lifestyle, thereby implicitly criticizing Mr. Savoie’s lifestyle; and (4) the school looked the other way when a high ranking administrator resumed an adulterous affair even after he had been warned the affair violated the school’s policy regarding personal and professional behavior and was grounds for termination. Accordingly, the Appellate Division sent Mr. Savoie’s case back to the trial court for a trial.

Supreme Court Rules Offer of Judgment Renders Overtime Collective Action Moot. Or Does it?

May 1, 2013 | by Jonathan I. Nirenberg

Last month, the United States Supreme Court dismissed an overtime case filed by an employee, Laura Symczyk, against her former employer, Genesis Healthcare Corporation. Ms. Symczyk filed the case as a collective action on behalf of herself and other similarly situated employees who were not paid for all of the hours they worked. Specifically, she claims Genesis deducted 30 minutes of pay per day for a meal break, even when they worked during their break. She asserted the company’s policy violates the Fair Labor Standards Act of 1938 (“FLSA”). The FLSA is a federal law that set the federal minimum wage and guarantees overtime pay to non-exempt employees. The FLSA permits employees to sue on behalf of similarly situated employees in what is called a “collective action.”

When Ms. Symczyk filed her lawsuit, Genesis made her a formal settlement offer, called an offer of judgment, in the amount of $7,500 plus all of her attorneys’ fees and costs. Ms. Symczyk admits the $7,500 would have full compensated her for all of her own damages. However, she did not respond to the offer because she wanted to continue with her case on behalf of her coworkers, and as a result never received the $7,500. But since the offer would have paid Ms. Symczyk everything she was seeking for herself in the lawsuit, and none of her coworkers had joined the case, the trial court no longer considered her to have a personal stake in the outcome of the case. In other words, it deemed her case to be moot.

On that basis, Genesis sought to have the case dismissed. In response, Ms. Symczyk argued the company was improperly trying to end the case before the collective-action portion of the case even could begin.

The District Court dismissed the case. It ruled the $7,500 offer of judgment fully satisfied Ms. Symczyk’s claim, and a collective action cannot proceed unless there is at least one person who has joined the case whose claim against the company is not moot. The Third Circuit Court of Appeals reversed, finding that even though Ms. Symczyk’s claim was moot, it was improper for the company to try to “pick off” the named plaintiff to defeat the collective action. Genesis appealed the ruling to the United States Supreme Court. However, Ms. Symczyk did not cross-appeal the Third Circuit’s finding that her personal claim was moot.

In its opinion in Genesis Healthcare Corp. v. Symczyk, the Supreme Court ruled that since Ms. Symczyk did not cross-appeal the finding that her case was moot, it was bound by that conclusion whether or not it is correct. It then ruled that since her case is moot, she cannot proceed with the collective action on behalf of her coworkers. However, since the Court did not indicate whether Ms. Symczyk’s case really was moot, and merely assumed it because she did not cross-appeal that ruling, it did not indicate whether the same tactic of offering full damages to each named plaintiff would work in future cases. As a result, it remains unclear whether employees who bring collective actions and are offered settlements that would satisfy their own claims have the right to reject the offer and continue to proceed with the collective action.

Court Finds Employee’s Violation of Company’s Policy Protected by New Jersey Whistleblower Law

April 24, 2013 | by Jonathan I. Nirenberg

A federal judge recently denied an employer’s attempt to dismiss an employee’s claim under New Jersey’s whistleblower law, the Conscientious Employee Protection Act (CEPA). The employee, Mary Stapleton, claims her former employer, DSW, Inc., fired her in violation of CEPA. Ms. Stapleton worked for DSW, a shoe store, in New Jersey. In March 2012, she called New Jersey’s Division of Child Protection and Permanency (DCPP) because she saw a female customer who appeared to be neglecting her twenty-two month old child. Among other things, the customer refused to change the child even though she smelled of feces, did nothing to stop the child from painting the store’s shelves with nail polish, did not even notice when Ms. Stapleton took the nail polish from the child, and did not react when the child pulled on several other customers’ clothes. When the child took items from the counter and threw them on the floor, the customer threatened to hit the child when they got home. Ms. Stapleton reported this to DCPP, and provided the customer’s name and address so the agency could identify the customer.

The next day, the store’s District Manager learned that Ms. Stapleton had reported the customer to DCPP. She required Ms. Stapleton to submit a written statement about the incident. A few days later, DSW fired Ms. Stapleton because she provided the customer’s private identifying information to DCPP, in violation of a company policy prohibiting employees from giving out a customer’s identifying information. Ms. Stapleton indicated she was trying to act in the best interests of the child, and that DSW’s policy prohibiting her from providing the customer’s information was not in the best interests of the child. Nonetheless, DSW did not change its decision to fire her.

Ms. Stapleton eventually filed a lawsuit, claiming DSW fired her in retaliation for her refusal to follow a company policy she reasonably believed was incompatible with the best interests of the child, in violation of CEPA. DSW asked the judge to dismiss her case, arguing Ms. Stapleton did not engage in any whistleblowing activity that is protected under CEPA.

In Stapleton v. DSW, Inc., the United States District Court for the District of New Jersey denied DSW’s motion. The Court explained that the purpose of CEPA is to provide protection “to vulnerable employees who have the courage to speak out against or decline to participate in an employer’s actions that are contrary to public policy mandates.” Among its broad protections, CEPA makes it unlawful for an employer to retaliate against an employee who “objects to, or refuses to participate in” an employer’s activity which the employee “reasonably believes” violates the law, or a clear mandate of public policy relating to public health, safety, or welfare.

The Court agreed with DSW that Ms. Stapleton did not object to the company’s confidentiality policy until after she had been fired, and as a result could not prove retaliation on that basis. However, it found that if Ms. Stapelton’s allegations are true then the company fired her because she refused to comply with a policy she reasonably believed violated the law or a clear mandate of public policy regarding public health, safety, or welfare, since the policy prohibiting employees from giving out a customer’s private identifying information would have prevented her from taking an action she believed was necessary to protect the child’s health and safety. As a result, it found she has properly set forth a claim under CEPA and can proceed with her lawsuit.

New York City Prohibits Discrimination Against Unemployed Job Candidates

April 9, 2013 | by Jonathan I. Nirenberg

New York City recently amended its anti-discrimination law, the New York Human Rights Law (NYCHRL), to prohibit discrimination against individuals who are unemployed. The amendment to the NYCHRL prohibits discrimination with respect to both hiring and the terms and conditions of employment on the basis that the job applicant is unemployed. In other words, it makes it unlawful to refuse to hire an employee because he is unemployed, or to offer him a lower salary or employee benefits because he does not already have a job somewhere else.

There are several important exceptions in the amendment to the NYCHRL. For example, it is still permissible for employers to consider a job candidate’s unemployment status if there is a “substantial job-related reason” for doing so. It also permits employers to choose to hire only internal job candidates, even though doing so would eliminate unemployed job candidates from consideration. In addition, it does not apply to civil service employees, and is not intended to interfere with the rights of any employee under a collective bargaining agreement. Further, it makes it clear that employers can ask job candidates about the circumstances under which they left their previous jobs, and to consider those circumstances when deciding who to hire.

The amendment also prohibits employers and employment agencies from advertising that being employed is a job qualification or requirement. In this respect, the New York City law is similar to a law passed in New Jersey last year (see our previous article: New Jersey Makes it Illegal to Discriminate Against Unemployed Job Candidates). But unlike New Jersey’s law, the NYC law permits employees who have experienced discrimination because of their unemployment status to recover damages including lost past and future wages, emotional distress damages, attorneys’ fees, and potentially punitive damages.

Although Mayor Michael Bloomberg vetoed the law, the New York City Council overrode his veto and enacted it on March 13, 2013. It goes into effect on June 11, 2013.

Arriving on Time is Not an Essential Function of Every Job

April 1, 2013 | by Jonathan I. Nirenberg

In both New York and New Jersey, employers are required to provide reasonable accommodations to disabled employees to allow them to remain employed. A reasonable accommodation is a change or modification to the way your job is performed that allows you to remain employed despite having a disability. However, employers are not required to provide accommodations that would eliminate an “essential function” of the job.

Last month, the Court of Appeals for the Second Circuit ruled that although arriving at work on time is an essential function of most jobs, it is not an essential function of every job. The case, McMillan v. City of New York, was filed by Rodney McMillan. Mr. McMillan has a severe disability, schizophrenia. The medication he takes to treat his condition often makes him drowsy and sluggish. As a result, he is often unable to arrive at work until after 10 am. Nonetheless, he successfully worked as a case manager for the City of New York for almost 25 years.

However, New York City eventually disciplined Mr. McMillan because of his repeated lateness. In response, he requested reasonable accommodations including shifting his work hours back an hour, and allowing him to work during his lunch hour to “bank” time to make up for days on which he arrived late. NYC denied his request and eventually suspended him for 30 days without pay. Mr. McMillan then filed a disability discrimination lawsuit claiming NYC suspended him because he is disabled, and failed to accommodate his disability, in violation of the Americans with Disabilities Act (ADA), the New York State Human Rights Law (NYHLR) and the New York City Human Rights Law (NYCHLR).

The District Court dismissed Mr. McMillan’s claim. It ruled that arriving at work on time was an essential function of Mr. McMillan’s job. Accordingly, it found NYC was not required to grant the accommodations he requested since they would have eliminated an essential function of his job.

But on appeal the Second Circuit reversed the District Court’s ruling. It explained that although courts should give significant deference to an employer’s determination about which job functions are essential, that is only one factor a court should consider. For example, other relevant factors can include the written job description for the position, how much time the employee spends performing the job function, and the experiences of other past and present employees who have held the same or similar jobs with the employer.

The Second Circuit ruled that although arriving on time is an essential function of most jobs, it is not necessarily an essential function of every job. More specifically, it found unique facts about Mr. McMillan’s job that make it less clear whether arriving on time was an essential function of his job. For example, his department has a flex-time policy that allows employees to arrive at work anytime between 9:00 and 10:00 a.m. without being considered late. In addition, NYC permitted Mr. McMillan to arrive after 10:00 a.m. when necessary for more than a decade. Accordingly, the Court ruled that it should be left to a jury to determine whether arriving on time was an essential function of Mr. McMillan’s job.

Public Employees Can Pursue First Amendment Claim if Harmed by Employer’s Discrimination Against Coworker

March 26, 2013 | by Jonathan I. Nirenberg

Last week, I discussed Montone v. City of Jersey City, a case that ruled Police Sergeant Valerie Montone can proceed with her political affiliation case against the Jersey City Police Department. In the same opinion the Third Circuit ruled that eight other police sergeants can continue with their claim that Jersey City failed to promote them because it was discriminating against Montone.

The other eight Sergeants were on the same promotional list as Montone. None of them were promoted because Jersey City stopped promoting any sergeants to lieutenant, allegedly because Jersey City did not want to promote Montone. In other words, they claim they were collateral damage in Jersey City’s efforts to discriminate against Montone for exercising her First Amendment right to political affiliation.

The Third Circuit ruled that employees can sue for retaliation in violation of the First Amendment even if the retaliation was based on someone else exercising his or her First Amendment rights. It relied on a previous Third Circuit case which recognizes that indirect victims of gender discrimination can sue for discrimination under Title VII if they were treated worse for reasons that “trace back” to unlawful discrimination. In that case, male employees were permitted to pursue a gender discrimination claim in which they claimed their employer refused to hire them from a “priority list” because the company did not want to hire the women on the list. The Third Circuit also relied on a United States Supreme Court opinion recognizing an employee can bring a retaliation claim based on a coworker’s legally protected activity (in that case, retaliation against an employee’s fiancée because the employee filed a claim of gender discrimination with the Equal Employment Opportunity Commission) if the retaliatory action would dissuade a reasonable person from engaging in the protected activity. The Third Circuit explained that without this type of protection, municipal employees might not exercise their rights to express their political beliefs, or might change their political association to avoid retaliation.

Ultimately, the Third Circuit ruled that the eight sergeants can proceed with their civil rights case. It found there is a genuine dispute whether Jersey City failed to promote them because Montone exercised her right of political affiliation. For example, it found disputes regarding whether there really was a shortage of lieutenants in the police department, whether the Police Chief had the authority to make promotions, and why there were no promotions to lieutenant for three years. It therefore concluded that a jury must decide whether Jersey City retaliated against them.

Third Circuit Reinstates Police Sergeant’s Political Affiliation Discrimination Claim Against Jersey City

March 19, 2013 | by Jonathan I. Nirenberg

On March 8, 2013, the Third Circuit Court of Appeals ruled that Police Sergeant Valerie Montone can proceed with her civil rights case against the City of Jersey City, the Jersey City Police Department, Mayor Jerramiah Healy and retired Jersey City Police Chief Robert Troy. Montone claims she was passed her up for a promotion to lieutenant, in violation of her First Amendment right to political affiliation, because she supported Lou Manzo when he ran against Healy for mayor. She claims they decided not to promote any sergeants for three years so they would not have to promote her.

The First Amendment prohibits the state and local government from discriminating against employees based on which political candidates they support. As the Third Circuit explained, to prove this type of claim an employee has to prove (1) she worked for a public agency in a position that does not require political affiliation, (2) she engaged in conduct protected by the First Amendment, and (3) her employer took an adverse action against her, such as firing her, demoting her, or skipping her for a promotion, because of her constitutionally-protected conduct. Montone meets the first two requirements since her job as a sergeant for the Jersey City Police Department does not require any political affiliation, and her efforts supporting Manzo in the mayoral election is protected by the First Amendment. The primary issue on the appeal was whether there was enough evidence for a jury to find the defendants discriminated against her because she supported Mayor Healy’s opponent in the election.

The District Court dismissed Montone’s case, finding there was not enough evidence to prove discrimination. But in Montone v. City of Jersey City the Third Circuit disagreed. It found there was enough evidence for a jury to find discrimination in violation of the First Amendment, including the fact that:

Police Chief Troy made promotions to every other rank, but did not promote a single sergeant to lieutenant;
The number of lieutenants in the police department decreased from 56 to 30 over the three year period;
Jersey City had 66 authorized lieutenant positions, meaning it had 36 vacancies;
Mayor Healy and Chief Troy promoted their political supporters to other positions;
Jersey City has a history of political patronage including hiring employees who supported winning candidates;
Two other sergeants testified that Chief Troy told them they would not be promoted because they were below Montone on the promotion list and the mayor was not going to promote Montone;
The same two sergeants testified that Chief Troy indicated he did not have a problem with them because they did not come out against him during the election; and
Shortly after Chief Troy retired, he met with the new police chief before he decided not to promote Montone. Two days later, Jersey City promoted twelve other sergeants to lieutenant

In the same opinion, the Third Circuit ruled on a related case brought by eight other Jersey City police sergeants who were not promoted during the same three-year period. They claim they were the victims of Jersey City’s retaliation against Montone. I will discuss the fate of their case next week.