New Jersey Employment Lawyer Blog

Employers Cannot Require Doctor’s Note for Each Use of Intermittent FMLA Leave

March 12, 2013 | by Jonathan I. Nirenberg

The New Jersey Appellate Division recently ruled that an employer violated the Family & Medical Leave Act (FMLA) by requiring an employee to provide a new doctor’s note each time he took time off as part of an intermittent family leave. The FMLA permits a qualified employee to take time off to care for his immediate family member who has a serious health condition. When medically necessary, an employee can take an FMLA leave intermittently, meaning he can take hours or days off when necessary instead of taking the leave all at once.

Ralph West worked as a Corrections Officer for Burlington County. Officer West also was a member of the Policeman’s Benevolent Association (PBA) Local #249 Union. Under its collective bargaining agreement with the PBA, if the County suspects an employee of abusing sick leave it can require him to submit proof of illness. If an employee fails to submit proof within 7 days, the County can require the employee to forfeit his salary during the sick leave and/or discipline him.

Officer West’s son has sickle cell disease. As a result, he sometimes experiences serious health problems including strokes. On March 3, 2010, Officer West requested a family leave under the FMLA to care for his son. The County approved his leave as an intermittent FMLA leave from March 3, 2010 through December 31, 2010.

On May 2, 2010, Officer West’s son woke up jaundiced and in pain. Officer West took the day off to care for his son as part of his intermittent FMLA leave. The next day, his supervisor told him he had to submit proof his son was ill on May 2. Officer West was unable to submit a doctor’s note because he had not taken his son to the doctor, and the doctor was unwilling to write a note because he had not seen his son. As a result, the County docked Officer West’s pay for May 2 and told him he had to submit proof of illness each time he took time off as part of his intermittent family leave. Similarly, the County suspended Officer West for two days when he again called out sick to care for his son on August 15, 2010 without submitting a doctor’s note.

In Police Benevolent Association Local No. 249 v. County of Burlington, the Appellate Division ruled that the County’s policy requiring Officer West to submit a doctor’s note each time he took time off as part of his intermittent family leave violated the FMLA because it interfered with his rights under the FMLA. The Court found this was especially true since there was no evidence Officer West ever abused his intermittent family leave. In doing so, the Court distinguished another case that found a company did not violate the FMLA by requiring employees to call in each day they are out for a medical leave, since it is much easier to call than it is to submit a doctor’s note each time you need to take a day off under the FMLA. In other words, although an employer can impose requirements on employees who take FMLA leaves, those requirements violate the FMLA if they are onerous.

He Said What? Proving Sexual Harassment Based on Information Learned Secondhand

March 7, 2013 | by Jonathan I. Nirenberg

A question that often comes up in sexual harassment cases is whether you can rely on harassment you learned about secondhand to help prove your case. For example, can you use the fact that one of your coworkers told you that someone else made sexually offensive comments about you to help prove you worked in a sexually hostile work environment?

To prove a sexual harassment case, you need to show you experienced conduct because of your gender that was severe (bad) or pervasive (frequent) enough to make a reasonable woman believe the conditions of her employment were altered and her working environment was hostile or abusive. In determining whether your workplace was sufficiently hostile or abusive, a judge or jury is supposed to consider all of the circumstances, including how frequently the discriminatory conduct occurred, how severe it was, whether it was physically threatening or humiliating, and whether it unreasonably interfered with your job performance.

There are many cases that recognize an employee can rely on secondhand information in a sexual harassment case for certain purposes. For instance, you can rely on evidence that other women were harassed to help show the treatment you experienced was because of your gender, rather than motivated by something else. That is true even if you did not learn about the harassment the other women experienced until after you left your job.

But can you consider evidence of discriminatory conduct you learned about secondhand to prove your workplace was hostile? Most federal courts that have considered the issue have ruled that as long you were aware of the harassment when you were working for the company, you can use evidence of harassment you learned about from someone else to prove that your work environment was hostile. This includes the United States Courts of Appeals for the Second, Fourth, Sixth, and Seventh Circuits, as well as numerous District Court decisions including the District of New Jersey. As a result, for those of you in New York State, at least assuming your case is in federal court, evidence of harassment you learned about secondhand should be available to help prove your workplace was hostile.

However, there is language in a 2008 New Jersey Supreme Court opinion, Godfrey v. Princeton Theological Seminary, which says that when proving her work environment was hostile, a woman must rely on “evidence of bad conduct of which she has firsthand knowledge.” If interpreted literally, that could mean a plaintiff cannot rely on evidence of harassment she learned about secondhand, even if it actually contributed to make her work environment hostile. But in Godfrey, since the harassment occurred before the employees who brought the lawsuit started working for the employer, it was neither directed at nor witnessed by them. As a result, it is not surprising the court found the women could not rely on this evidence to prove their work environment was hostile.

Given New Jersey’s strong public policy in favor of prohibiting sexual harassment from the workplace, I doubt the New Jersey Supreme Court intended to rule that an employee can never rely on harassment she learned about second hand. Rather, evidence of harassment that you learned about secondhand should be relevant as long as it actually contributed to making your work environment hostile. Of course, that will not prevent employers from arguing that this type of evidence is inadmissible under Godfrey.

For more information about the Godfrey case, please read our previous article: New Jersey Supreme Court Clarifies Sexual Harassment Standard: Repeatedly Asking for Dates is Not Sexual Harassment.

Third Circuit Finds No Evidence of Discrimination Necessary to Prove Discrimination Case

February 28, 2013 | by Jonathan I. Nirenberg

Last month, the Third Circuit Court of Appeals recognized that an employee does not need to have any evidence of discrimination before she can present her case to a jury. The Third Circuit is the federal court that handles appeals from New Jersey, Pennsylvania, Delaware and the Virgin Islands.

The employee who brought the case, Mary Burton, worked for Teleflex Inc. as a Vice President of New Business Development. On June 3, 2008 she got into a disagreement with her supervisor, Edward Boarini. Mr. Boarini claims Ms. Burton resigned during the meeting. In contrast, Ms. Burton claims she mentioned the possibility of resigning, but did not actually resign. At the time, Ms. Burton was 68 years old.

According to Ms. Burton, she did not report to work the next two days because she was upset about the meeting. She then took a preplanned vacation. On the day she was scheduled to return to work, Teleflex sent her a letter indicating it was accepting her resignation.

After her lawyer unsuccessfully attempted to negotiate a severance package, Ms. Burton filed a lawsuit claiming the company’s decision to fire her was age discrimination in violation of the Age Discrimination in Employment Act (ADEA), and gender discrimination in violation of Title VII of the Civil Rights Act of 1964. But the District Court dismissed Ms. Burton’s case. It found she voluntarily resigned, and therefore could not pursue a wrongful termination claim. It also found that even if she did not intend to resign, there was no evidence the company fired her because of her age or gender, rather than because it believed she had resigned.

But on appeal, the Third Circuit reversed. It found that since there is a factual dispute whether Ms. Burton actually resigned, a jury needs to decide whose version of the events is true. It explained that a jury can conclude Ms. Burton was fired based on her testimony that she never said she was resigning, as well as the fact that she never tendered a resignation letter, never told anyone she was resigning, and the company merely took Mr. Boarini’s word that she had resigned without confirming it with her.

The Third Circuit further ruled that a jury can find Teleflex’s decision to fire Ms. Burton because of her age or gender even though there is no evidence of discrimination. It explained that one way an employee can prove her case is by pointing out “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the employer’s explanation for terminating her. In essence, it ruled that a jury can find Teleflex lied when it claimed it believed Ms. Burton had resigned, and can conclude the reason the company lied was to cover up age or gender discrimination. The Third Circuit’s opinion in Burton v. Teleflex Inc. is published, meaning it is a binding legal precedent.

Department of Labor Explains FMLA Leaves to Care for Adult Children

February 19, 2013 | by Jonathan I. Nirenberg

Last month, the United States Department of Labor (DOL) clarified when a qualified employee can take a leave under the Family & Medical Leave Act (FMLA) to care for an adult child. As the Interpretation explains, the FMLA permits eligible employees to take up to 12 weeks off from work to care for a son or daughter who has a serious health condition. The FMLA defines a “son or daughter” to include a biological, adopted, or foster child, as well as a stepchild or legal ward. It applies to all children who are under 18 years old. It also applies to children who are at least 18 years old, but only if the child (1) has a disability; (2) is incapable of caring for him or herself due to the disability; (3) has a serious health condition; and (4) needs a parent to care for him because of the serious health condition.

1. The Adult Child Has a Disability

The DOL explained that the first requirement for qualified employees to take an FMLA leave to care for their adult child is the child must have a disability as defined by the Americans with Disabilities Act (ADA). Fortunately, the FMLA adopts the ADA’s relatively new and much broader definition under the Americans with Disabilities Amendment Act (ADAAA). That definition includes any physical or mental condition that substantially impairs a major life activity. Major life activities include the ability to care for yourself, perform manual tasks, see, hear, eat, sleep, walk, stand, lift, bend, speak, breath, learn, read, concentrate, think, communicate, or work. As long as it substantially limits a major life activity, a disability can include a pregnancy-related condition or a condition that is episodic or in remission.

2. The Adult Child is Incapable of Self-Care

The second requirement for the FMLA to cover an adult child is the child must be unable to care for him or herself due to the disability. As the DOL explained, this means the son or daughter needs daily assistance or supervision to care for at least three “activities of daily living” or “instrumental activities of daily living.” Activities of daily living include grooming and hygiene, bathing, dressing, and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones, or using the post office.

3. The Adult Child Has a Serious Health Condition

The third requirement is that the adult son or daughter has a serious health condition. This means the adult child must have an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. As the DOL’s Interpretation recognizes, although the FMLA’s definition of a serious health condition is different from the ADA’s definition of a disability, many conditions are both a serious health condition and a disability.
4. The Parent Needs to Care for the Adult Child Due to the Serious Health Condition

The final requirement for a qualified employee to be entitled to an FMLA leave to care for an adult child is the adult child must need the parent’s care because of the serious health condition. This includes situations in which the parent needs to care for an adult son or daughter who is “unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor” due to a serious health condition. It also includes situations in which a parent needs to provide psychological comfort or reassurance to an adult child who has a serious health condition while receiving inpatient or home care.

It Happened to Me Too – When Can You Prove Harassment With Evidence of Harassment to Someone Else?

February 11, 2013 | by Jonathan I. Nirenberg

Last week, I discussed Mandel v. M&Q Packaging Corp., a case which recognizes that an employee who sent sexual emails at work still can pursue a sexual harassment claim. Mandel also addresses when an employee can use evidence that someone else experienced harassment to prove her own harassment claim. In other words, it discusses when an employee can offer so-called “me too” evidence in a harassment case.

Mandel recognizes that whether you can use evidence that someone else experienced sexual harassment to try to prove your own case depends on the circumstances. The most important factor is how related or similar the two forms of harassment are to each other. A previous United States Supreme Court case, Spring/United Mgmt. Co. v. Mendelsohn, recognizes that depending on the circumstances, “me too” evidence can be used to prove a discrimination or harassment case even if the harassment involved a different supervisor.

Applying this principle in Mandel, the Third Circuit ruled that the lower court correctly prohibited Ms. Mandel from relying on evidence of harassment toward two other women. It explained that while Ms. Mandel worked for a subsidiary, M&Q Packaging, the other two women worked for its parent company, M&Q Plastic Products, Inc. As a result, the Third Circuit found the harassment the other women experienced was not similar enough to the harassment Ms. Mandel alleged she experience. It therefore ruled that Ms. Mandel cannot use evidence regarding the sexual harassment the other two women experienced to support her own claim.

In other instances, an employee might be able to use evidence that another supervisor harassed someone else at work to prove her claim. Relevant factors are likely to include things like how similar the acts of harassment are to each other, whether the harassment occurred in the same department or building, whether the harassers reported to the same supervisor, how close in time the harassment occurred to each other, and other similarities and differences between the acts of harassment.

Employee Who Sent Sexual Emails at Work Still Can Pursue a Sexual Harassment Claim

February 4, 2013 | by Jonathan I. Nirenberg

When an employee brings a harassment claim under federal law, one element of her claim is that she was harmed by the harassment. The Third Circuit Court of Appeals recently recognized that an employee can meet that requirement even though she personally sent emails containing sexual jokes at work.

The employee in question, Shannon Mandel, worked for M&Q Packing Corp. as an Inside Sales and Customer Relations Coordinator. She alleges she experienced sexual harassment including:

Calling her “woman,” “darling,” “fluffy,” “missy,” “hon,” “toots,” “too female;” and “too emotional;”
Commenting about her body, clothing, and physical appearance;
Paying her less than her male peer;
A male manager telling her a meeting would take place at his house, and they would conclude their part of the meeting in the morning;
Another male supervisor indicting he fantasizes about her while having sex with his wife; and
A third male manager asking her on dates even after she told him she was not interested

Ms. Mandel resigned shortly after a fourth male manager called her a “bitch.”

Previously, the District Court had dismissed Ms. Mandel’s sexual harassment claim, finding there was not enough evidence for a jury to conclude she was harmed by the harassment. It relied heavily on the fact that Ms. Mandel frequently used vulgarity and sent emails containing sexual jokes at work. The District Court found this behavior demonstrated Ms. Mandel’s “casual ease with this type of workplace behavior.” While the court recognized that did not necessarily mean Ms. Mandel had not been harmed by the harassment she experienced, it also concluded she had no evidence she had experienced emotional distress as a result of the harassment, or that the harassment made it more difficult for her to perform her job. It also indicated the only time Ms. Mandel complained about the harassment was after she was called a “bitch,” and she made that complaint to a coworker rather than to a supervisor or the Human Resources Department.

In Mandel v. M&Q Packaging Corp., the Third Circuit strongly disagreed. It indicated it was “disturbed” by the District Court’s conclusion that no reasonable jury could find Ms. Mandel was harmed by the harassment. It explained that even though Ms. Mandel engaged in unprofessional conduct by using vulgarity and sending sexual jokes, the harassment she experienced was “often worse and apparently uninvited.” Further, it disputed the District Court’s conclusion that Ms. Mandel only complained about one incident of harassment. In addition, it recognized that Ms. Mandel had stated under oath that the harassment caused her harm. Accordingly, it found a reasonable jury could conclude that Ms. Mandel was harmed by the sexual harassment, and reversed the District Court’s decision to dismiss her sexual harassment claim.

Court Rules New Jersey Law Against Discrimination Does Not Apply to New Jersey Resident Who Worked in Pennsylvania

January 28, 2013 | by Jonathan I. Nirenberg

A federal judge in New Jersey recently dismissed an employee’s discrimination lawsuit on the basis that the New Jersey Law Against Discrimination (NJLAD) does not apply to New Jersey residents who work outside of New Jersey. The employee, Blaise A. McGovern, is a resident of New Jersey. He worked for Southwest Airlines as a ramp supervisor at Philadelphia International Airport. He claims Southwest subjected him to abusive, harassing, and homophobic conduct. After Mr. McGovern reported the harassment to his supervisors, he received harassing telephone calls and text messages. After he filed a written harassment complaint, Southwest Airlines fired him.

Mr. McGovern sued Southwest under the NJLAD, alleging harassment and wrongful termination. Although the judge’s opinion in McGovern v. Southwest Airlines does not say it, Mr. McGovern presumably claimed Southwest engaged in sexual orientation discrimination.

Southwest asked the court to dismiss Mr. McGovern’s case. It argued that the NJLAD does not apply because Mr. McGovern worked for it exclusively in Pennsylvania. In response, Mr. McGovern argued that even though he did not perform any work for Southwest in New Jersey, the NJLAD still applies since some of the harassment occurred in New Jersey. For example, he received many of the harassing telephone calls and text messages while he was at home in New Jersey.

In granting Southwester’s motion to dismiss the case, the judge explained that under New Jersey law a judge normally has to apply the employment laws of the state where the employee worked. He explained this rule protects companies from the “potential unfairness of having to comply with several different” sets of employment laws simply because their employees happen to live in different states. However, the judge noted there are exceptions to this general rule for employees who have “non-trivial” job duties in New Jersey. However, merely performing a small portion of your work in New Jersey is not enough for the NJLAD to apply. Since Mr. McGovern had not performed any work for Southwest in New Jersey, the judge rule that the NJLAD does not apply to him.

As discussed in a previous article, New York has a very different rule to determine whether the New York Human Rights Law (NYHRL) applies to an employee who works outside of New York. Specifically, the NYHRL applies to employees who live in New York or when discrimination had an impact in New York even if the employee never worked in New York. As a result, the NYHRL applies to a much broader group of employees than the NJLAD.

Court Upholds Newark Police Officer’s $700,000 Verdict in Retaliation Case

January 21, 2013 | by Jonathan I. Nirenberg

The Third Circuit Court of Appeals recently affirmed a Newark police officer’s $700,000 verdict in a wrongful termination case. The case was brought by Jose Montalvo, who was a police officer for the City of Newark from 1990 to 2006. On April 22, 2005, he filed an affirmative action complaint, claiming the police department started harassing him after he fired his weapon at a citizen in 2000. For example, despite Mr. Montalvo’s repeated requests, the department refused to return his fire arm, and instead kept him assigned to cell block duty for longer than it had assigned anyone else to it. According to testimony, Newark assigns police officers to the cell block as a form of punishment.

At the trial, Mr. Montalvo presented evidence that Newark began further harassing him after he filed his affirmative action complaint. For instance, the police department suspended him for 21 days relating to the shooting, even though it occurred five years earlier. Ultimately, Newark fired Mr. Montalvo for making false statements during a police department investigation and disclosing confidential information about the investigation. However, Mr. Montalvo presented evidence at the trial showing the department gave less severe discipline to other police officers who were brought up on similar disciplinary charges.

At the trial, the jury found Newark fired Mr. Montalvo in retaliation for filing his affirmative action complaint, in violation of the New Jersey Law Against Discrimination (LAD), and awarded him $700,000. The LAD prohibits employers from retaliating against an employee because he complained about workplace discrimination.

Newark appealed, arguing there was not enough evidence to connect its decision to fire Mr. Montalvo to his affirmative action complaint. However, the Third Circuit rejected this argument. In Montalvo v. City of Newark, it ruled the jury’s find that Newark fired Mr. Montalvo in retaliation for his affirmative action complaint was supported by the pattern of Newark antagonizing him after he filed it.

On appeal, Newark also asked the court to overturn the verdict on the basis that the Police Chief who made the decision to fire Mr. Montalvo testified that he did not even know about Mr. Montalvo’s affirmative action complaint. However, the court concluded that the jury was not required to believe the Police Chief’s testimony. It also explained that, even if the Chief did not know about Mr. Montalvo’s affirmative action complaint, his decision to fire Mr. Montalvo still could have been retaliatory since there was evidence he relied on a “tainted” retaliatory performance evaluation prepared by another employee who did know about his complaint. Accordingly, the court affirmed Mr. Montalvo’s $700,000 verdict.

Frequently Asked Questions (FAQ) About Severance Agreements

January 13, 2013 | by Jonathan I. Nirenberg

Some of the most common questions employees ask employment lawyers relate to severance pay. Below, we have answered a few of the most frequently asked questions about severance agreements under New York and New Jersey law.

Q: I have been laid off or fired by my company. Am I entitled to severance?

A: Generally, in New York and New Jersey there is generally no legal requirement for a company to pay severance to its employees. However, if your company has a severance policy or plan, then it has to pay you severance if you meet the relevant eligibility requirements. Likewise, if you have an individual employment contract, then your employer is required to pay you any severance you are entitled to under your contract.

New Jersey Court Reverses Million Dollar Award in Disability Discrimination Case, Finding Jury Relied on Inadmissible Hearsay

January 7, 2013 | by Jonathan I. Nirenberg

Last month, New Jersey’s Appellate Division reversed a verdict of over one million dollars in a disability discrimination and retaliation case because the only evidence supporting the claim was inadmissible hearsay. Hearsay is basically when you try to prove something is true based on the fact that someone else said it was true outside of the courtroom. Hearsay generally is not admissible at a trial because it is considered untrustworthy. However, there are many exceptions to that rule.

The case was brought by Anthony Pace, who was a security guard for the Elizabeth Board of Education for more than 15 years. In 2003, Mr. Pace suffered a knee injury at work, and filed a worker’s compensation claim. In 2006, the Board decided not to renew Mr. Pace’s contract as part of a reduction-in-force. Mr. Pace then sued, claiming the Board’s decision to lay him off was both disability discrimination and an act of retaliation because he filed a workers’ compensation claim. A jury agreed with Mr. Pace and awarded him $147,630 for past lost wages, $427,370 for future lost wages, and $250,000 in punitive damages. He also was awarded $237,843 in attorney’s fees and $7,708.84 to reimburse him for his litigation costs, bringing his total judgment to more than a million dollars.

The primary evidence to support Mr. Pace’s claims were two witnesses who testified that a former member of the Board, Carol Cascio, told them the Board was trying to eliminate employees who had brought worker’s compensation claims against it during the reduction-in-force. Both of the witnesses indicated that Ms. Cascio made those statements after she had left the Board.

However, in Pace v. Elizabeth Board of Education, the Appellate Division ruled that this evidence was inadmissible hearsay. In doing so, the court rejected numerous exceptions to the hearsay rule. For example, it found an exception for statements made by the opposing party did not apply since Mr. Pace did not sue Ms. Cascio personally so she could not be an opposing party. Similarly, it found an exception for statements by agents, employees and representatives of an opposing party did not apply because Ms. Cascio was no longer an employee of the Board when she allegedly made the statements. It also rejected an exception for statements that are against the speaker’s interests because Ms. Cascio did not say anything that personally implicated herself in any wrongdoing. Likewise, it rejected other exceptions to the hearsay rule because there was no evidence the Board had authorized Ms. Cascio’s statement, and no evidence it adopted her statement as its own. Ultimately, having found the only evidence of discrimination and retaliation was inadmissible hearsay, the Appellate Division overturned the jury’s verdict.