New Jersey Employment Lawyer Blog

Court Allows Lawyer to Pursue Claim Against Port Authority Under New Jersey Law Against Discrimination

September 1, 2012 | by Jonathan I. Nirenberg

A federal judge in New Jersey recently ruled that employees can sue the Port Authority of NY & NJ under the New Jersey Law Against Discrimination (“LAD”). The decision is noteworthy because previous cases have ruled that the Port Authority cannot be sued under state employment laws. The LAD is an employment law that prohibits many different kinds of workplace discrimination, harassment and retaliation in New Jersey.

The case was filed by Donald Burke, a lawyer for Port Authority for 26 years. Mr. Burke claims the Port Authority retaliated against him after he (1) refused to lower the performance ratings of two older female employees, Shirley Spira and Dolores Ward, who claimed the Port Authority was underpaying them due to their age and gender, and (2) refused to raise the performance ratings of two of their male peers. He also alleges he objected when Ms. Spira and Ms. Ward were unfairly disciplined, and again when they were fired in a supposed reduction in force.

The retaliation Mr. Burke claims he experienced includes his boss disciplining him for supposedly not doing his job properly and accusing him of not being a “team member.” He also claims his boss threatened to fire him because he objected to the Port Authority’s decision to fire Ms. Spira and Ms. Ward. He further alleges the Port Authority effectively demoted him by eliminating his position as its top litigator, moved his office to an area filled with older lawyers that employees refer to as “death row,” and stopped providing him the resources he needed to do is job. Eventually, the Port Authority recommended firing Mr. Burke. Instead, he resigned. He claims the Port Authority constructively discharged him, meaning it forced him to resign by harassing him and retaliating against him. He eventually filed a lawsuit asserting numerous claims against the Port Authority, including a retaliation claim under the LAD.

The Port Authority is a bi-state agency that was jointly created by New York and New Jersey. The New Jersey Supreme Court has previously ruled that bi-state agencies only can be sued under a state law if (1) the law creating the Port Authority specifically allows it, or (2) the state law is “substantially similar” to a law it the other state. Other cases have ruled that since the LAD is not substantially similar to the New York Human Rights Law (NYHRL), the Port Authority cannot be sued under either the LAD or the HYHRL.

However, in Burke v. Port Authority of NY & NJ, the Court did not discuss whether the LAD and the NYHRL are substantially similar laws. Instead, it ruled that since the purpose of the LAD is to prevent discrimination, and there is nothing in it saying otherwise, the LAD must have been intended to cover the Port Authority. The Court also relied on a 1951 amendment to the law that created the Port Authority, which says that New York and New Jersey agree to allow the agency to be sued for “tortious acts” (meaning personal injuries and similar wrongful acts) in the same way as a private corporation. It therefore allowed Mr. Burke to proceed with his LAD claim.

Filing Questionnaire Can Be Enough to File Discrimination Claim With EEOC

August 27, 2012 | by Jonathan I. Nirenberg

On July 27, 2012, a federal judge in New Jersey ruled that submitting an intake questionnaire was enough for an employee to file a discrimination claim with the United States Equal Employment Opportunity Commission (EEOC). The case was filed by Theresa Walker-Robinson, a branch manager for JP Morgan Chase Bank in Lyndhurst, New Jersey. Ms. Walker-Robinson is African-American and 46 years old. She claims her District Manager, Christopher Zardavets, announced he was going to “change the face of the region,” and then began to visit bank branches whose mangers were African American women over 40 years old. Ms. Walker-Robinson complained about Mr. Zardavets’ conduct, but he allegedly continued to come to her branch and make discriminatory comments about her and unfairly criticized her job performance. JP Morgan fired Ms. Walker-Robinson less than a month after she complained to Mr. Zardavets’ boss about the harassment.

Ms. Walker-Robinson filled out and submitted two separate EEOC intake questionnaires. On the forms she claimed JP Morgan fired her because of her age, in violation of the Age Discrimination in Employment Act (ADEA). However, she never filled out or submitted the EEOC’s Charge of Discrimination form.

After the EEOC sent Ms. Walker-Robinson a “right to sue letter,” she filed a lawsuit including claims of age discrimination, race discrimination, gender discrimination, hostile work environment harassment, and retaliation. JP Morgan then asked the judge to dismiss her lawsuit because she did not submit the EEOC’s Charge of Discrimination form.

Under federal law, employees in New Jersey have to file a “charge” of discrimination with the EEOC within 300 days after being fired as a requirement to file a discrimination lawsuit under the ADEA, the Americans with Disabilities Act (ADA), or Title VII of the Civil Rights Act of 1964. However, none of those laws defines the term “charge,” or specifically require employees to use the EEOC’s Charge of Discrimination form.

In Walker-Robinson v. J.P. Morgan Chase Bank, N.A. (July 27, 2012), the judge ruled that Ms. Walker-Robinson’s EEOC questionnaire was a “charge of discrimination. She primarily relied on an EEOC regulation which says that a charge of discrimination must include:

Full name, address and phone number of the person making the charge;
Full name and address of the person (or company) the charge is against;
Facts supporting the discrimination claim, including relevant dates;
Number of employees working for the employer (if known); and
A statement whether the employee has brought a claim about the same discriminatory practice with any state agency.

The judge also relied on a United States Supreme Court case that says a charge of discrimination also has to ask the EEOC to take action to remedy the discrimination. The judge ruled that Ms. Walker-Robinson’s EEOC questionnaires met all of those requirements.

The judge also permitted Ms. Walker-Robinson to pursue her claims of gender discrimination, race discrimination, harassment, and retaliation. Even though Ms. Walker-Robinson did not mention those claims in her EEOC questionnaires, the judge found they were related to the same facts as her age discrimination claim, and the EEOC should have addressed those claims during its investigation. The judge therefore denied JP Morgan’s motion to dismiss Ms. Walker-Robinson’s case.

Court Clarifies Important Issues Under FMLA

August 19, 2012 | by Jonathan I. Nirenberg

Earlier this month, in Lichtenstein v. University of Pittsburgh Medical Center, the Third Circuit Court of Appeals answered several important questions under the Family & Medical Leave Act of 1993 (FMLA). The FMLA is a federal law that requires larger companies to allow qualified employees to take time off for pregnancy, their own serious health condition, or to care for an immediate family member with a serious health condition. The Third Circuit is the federal appellate court that handles appeals from federal court in New Jersey.

What is Enough Information to Request an FMLA Leave?

One issue the court clarified is what an employee is required to say to request an FMLA leave. It ruled that an employee only has to provide the employer enough information for the company to determine that the FLMA might apply. At that point, if the employer needs more information to determine whether the FMLA actually applies, it has to ask the employee. Applying that rule, the court found Jamie Lichtenstein had requested an FMLA leave when she told her employer, the University of Pittsburgh Medical Center (UPMC), that (1) her mother was in the emergency room, (2) her mother had been brought to the hospital by ambulance, and (3) she would not be able to work that day. The court ruled that although this was not necessarily enough information for UPMC to determine whether Ms. Lichtenstein was entitled to an FMLA leave, it was enough information that UMPC had to at least ask her for more information.

What Does it Mean to “Care For” a Family Member?

The court also clarified what it means to “care for” a family member with a serious health condition. It explained that “caring” not only includes providing physical care, but also “psychological comfort and reassurance,” to a family member with a serious health condition. The court concluded that a jury could find UPMC should have understood the reason Ms. Lichtenstein was at the hospital with her mother was to provide her emotional comfort and reassurance, and therefore was a request for an FMLA leave.

How Can You Prove Your Employer Retaliated Against You For Requesting an FMLA Leave?

The court also discussed how an employee can prove that the decision to fire her was based on her request for an FMLA leave. First, it explained that that an employee can prove this based solely on evidence of the timing between her request for an FMLA leave and the company’s decision to fire her, but only if the timing is “unusually suggestive.” Since UPMC fired Ms. Lichtenstein within a week after she requested an FMLA leave, the court found that alone could be enough for a jury to find in her favor.

Second, the court explained that even when the timing is not enough by itself to prove the employer fired the employee because she took an FMLA leave, the employee can use other evidence to prove her claim. For example, Ms. Lichtenstein could use the fact that the company stated that her absence on the day when she was at the hospital with her mother was one of the reasons it fired her. She also could use the fact that her supervisor initially claimed she made the decision to fire Ms. Lichtenstein before she requested an FMLA leave, but later testified that she could not remember when she made the decision.

Notably, the court ruled that Ms. Lichtenstein can proceed with her FMLA claim even though she admittedly had numerous unexcused absences and was repeatedly late to work before she ever requested an FMLA leave. It explained that the company had every right to fire her for those reasons. However, it is illegal to consider an employee’s FMLA leave as a “negative factor” in a decision to fire an employee, even if there are other factors that led to the decision. Since there is evidence suggesting that Ms. Lichtenstein’s FMLA leave could have been the “straw that broke the camel’s back,” the court ruled that a jury must decide whether UPMC used her FMLA as a negative factor in its decision to fire her.

New Jersey Judge Allows Disability Discrimination Case to Proceed

August 14, 2012 | by Jonathan I. Nirenberg

Recently, a federal judge in the District of New Jersey allowed an employee to continue with his disability discrimination case, largely based on testimony that his boss told him he was “too sick” to do his job. The case, Estate of Fajge v. Dick Greenfield Dodge, Inc., was filed on behalf of Henry Fajge, a car salesman for Dick Greenfield Dodge.

The Facts of the Case

Before he started working for the dealership, Mr. Fajge had a history of mini-strokes (or transient ischemic attacks), coronary artery disease and hypertension, and had suffered a heart attack.
Three weeks after he started the job, he suffered another mini stroke. He was taken to the emergency room by ambulance, and remained in the hospital for five days before his doctor cleared him to return to work.

Within a week after he returned to work, the dealership had to call another ambulance for Mr. Fajge because he was not feeling well. After examining him, the paramedics concluded he was fine. According to Mr. Fajge, his boss called him at home the next day, and said he did not think he was strong or healthy enough to continue doing his job, and as a result they were going to have to “part company.” Although his boss denied making that statement, he admitted he called Mr. Fajge to ask him how he was doing. When his boss was asked at his deposition if he calls other employees at home when they are out sick, he answered “No. But most employees don’t like nearly drop over dead in front of me two times in a row in less than a month.”

Approximately two weeks later, the dealership fired Mr. Fajge. It claimed it did so because of his job performance. For example, his supervisors testified that he wasted a lot of time in his office instead of trying to sell cars, and he was often on the internet, including occasionally looking at pornography at work.

Mr. Fajge then filed a lawsuit in which he alleged the dealership fired him because he is disabled, in violation of the New Jersey Law Against Discrimination (LAD). Unfortunately, Mr. Fajge passed away while the case was pending. However, his estate decided to pursue his discrimination lawsuit on his behalf.

The Judge’s Ruling

Without deciding whether Mr. Fajge actually had a disability, the Judge found he was protected by the LAD because the dealership perceived him to be disabled. The LAD prohibits employers from discriminating against employees who they believe are disabled, whether or not they are actually disabled. The Judge also found there was enough evidence for a jury to find the dealership fired Mr. Fajge because it believed he was disabled. This includes Mr. Fajge’s testimony that his boss said he did not think he was strong enough to perform his job, and his boss’s testimony that Mr. Fajge twice nearly dropped dead in front of him. The Judge also relied on a company document that said it fired Mr. Fajge because of his “inability to work the hours required,” and inconsistencies in the dealership’s evidence about Mr. Fajge’s supposed poor performance. The Judge’s ruling paves the way for the case to go to trial, where a jury will decide whether the dealership fired Mr. Fajge because of an actual or perceived disability.

The Third Circuit Holds Parent Company Not Responsible For Wholly-Owned Subsidiary’s Overtime Violations

August 1, 2012 | by Jonathan I. Nirenberg

The Court of Appeals for the Third Circuit was recently asked if a parent company is responsible for overtime violations committed by its subsidiary. The lawsuit, In re Enterprise Rent-A-Car Wage & Hour Employment Practices Litigation, was brought by a group of assistant branch managers who worked for various locations of Enterprise-Rent-a-Car, which are wholly owned subsidiaries of Enterprise Holdings. The employees claimed Enterprise Holdings was liable for their overtime pay under the Fair Labor Standards Act (FLSA) as a “joint employer.” The FLSA is a federal law that requires companies to pay time-and-a-half overtime pay to most “non-exempt” employees.

Joint employment is when two or more employers share control of an employee. Although joint employment is a well-recognized concept, the Third Circuit was addressing this issue for the first time in the context of an FLSA claim. The court created a new four-part test for “joint employment,” which it named the Enterprise test.

Under the Enterprise test, in deciding if a party is a “joint employer,” courts must consider whether the company has:

(1) Authority to hire and fire employees;
(2) Authority to issue work rules and job assignments, and set conditions of employment like compensation, benefits, and hours;
(3) Authority to supervise and discipline employees on a day-to-day basis; and
(4) Control of employee records such as payroll, insurance, and tax records.

When the court applied this test, it determined Enterprise Holdings was not a joint employer even though there are many indications of joint management. For example, Enterprise Holdings is very involved in running its subsidiaries. It also provides them with administrative services and Human Resources support, including employee compensation guides indicating which employees should be paid salaries, and which employees should be paid by the hour. In addition, both companies are managed by the same Board of Directors. But the Court found that was not enough to make them joint employers.

The court reached this decision because it found Enterprise Holdings did not directly control assistant branch managers working for its subsidiaries, and the guidelines it provided to its subsidiaries were recommendations rather than requirements. Although the court suggested that other factors can also be taken into consideration, in Enterprise it gave those factors very little weight.

New Jersey Judge Enforces Employee’s Agreement to Shorten Deadline to File Discrimination Lawsuit

July 27, 2012 | by Jonathan I. Nirenberg

A federal judge in New Jersey recently dismissed an employee’s disability discrimination claim because she had signed an agreement shortening the statute of limitations to bring employment law claims against her employer. A statute of limitations is the deadline to file a lawsuit. Different legal claims have different statutes of limitations. For example, the New Jersey Law Against Discrimination (“LAD”) has a two year statute of limitations, meaning employees working in New Jersey ordinarily have two years to file discrimination lawsuits against their employers under the LAD.

The Facts of the Case

Ann M. Gavin worked for AT&T Services, Inc. She had several problems and pain in her feet and legs that made it difficult for her to walk, including a stress fracture in her right knee, psoriatic arthritis, and pustular psoriasis on her heel. She asked AT&T for permission to telecommute as a reasonable accommodation for her disability. She eventually resigned because the company would not let her work from home five days per week. She then filed a disability discrimination lawsuit under the LAD.

Court Upholds Employee’s Retaliatory Termination Claim Based on Supervisor’s Unfriendliness

July 16, 2012 | by Jonathan I. Nirenberg

In a noteworthy unpublished employment law decision, earlier this month New Jersey’s Appellate Division upheld a jury award to an employee on a retaliation claim where the primary evidence of retaliation was the fact that the employee’s supervisors were unfriendly to him after he complained about discrimination.

Anthony Onuoha, who is African American, worked for Roche Molecular Systems. In 2006, he complained to Roche’s management because he believed the company discriminated against him by giving him unfair performance reviews and raises. The company’s human resources department investigated his claim, but concluded that his performance reviews and salary were fair.

After Mr. Onuoha complained about discrimination, his supervisors became unfriendly toward him. For example, one supervisor stopped speaking to him. Mr. Onuoha also received an even worse performance review in 2007. Further, the company denied Mr. Onuoha’s request to take a two-week vacation after he took a 6-week medical leave, claiming there was too much work.

A few years later, in 2009, Roche chose to include Mr. Onuoha in a reduction-in-force and terminated his employment. He then sued, claiming the company discriminated against him because he is an African American, and fired him in retaliation for his complaint about race discrimination, in violation of the New Jersey Law Against Discrimination (LAD).

After a trial, a jury found that Roche had not discriminated against Mr. Onuoha based on his race. However, it found the company fired Mr. Onuoha in retaliation for the complaint he made about discrimination in 2006. He was awarded $512,000 in economic damages, $250,000 in emotional distress damages, plus $305,653.07 for his attorney’s fees and legal costs, for a total judgment of more than a million dollars.

On appeal, Roche argued it was improper for the jury to find Roche retaliated against Mr. Onuoha because of his complaint about discrimination since the jury found the company did not discriminate against him. In Onuoha v. Roche Molecular Systems, the Appellate Division rejected that argument since an employee does not have to win his discrimination claim to prove his employer fired him in retaliation for complaining about discrimination. Rather, an employee only has to prove he reasonably believed in his discrimination complaint, and the employer retaliated against him because he made the complaint.

The appellate court also found there was enough evidence of retaliation to support the jury’s verdict, despite the fact that there was a two year gap between his discrimination complaint and the company’s decision to fire Mr. Onuoha. It primarily focused on the evidence that Mr. Onuoha’s supervisors became unfriendly toward him after he complained about discrimination. The Court also relied on the fact that, although the company could have considered a broader group of employees for potential layoff, it insisted on firing someone from Mr. Onuoha’s group. Accordingly, the court affirmed the jury’s verdict in favor of Mr. Onuoha.

Discrimination Case Dismissed Because Employee Filed Claim with New Jersey Division on Civil Rights

July 6, 2012 | by Jonathan I. Nirenberg

Last month, New Jersey’s Appellate Division dismissed an employee’s discrimination lawsuit because the New Jersey Division on Civil Rights (DCR) had already dismissed the employee’s case. That employee, Francis Cornacchiulo, was a senior vice president for Alternative Investment Solutions. Mr. Cornacchiulo has multiple sclerosis. Alternative fired him after he apparently started experiencing symptoms of his disability at work. He then filed a disability discrimination claim with the United States Employment Opportunity Commission (EEOC). When Mr. Cornacchiulo submitted additional information to the EEOC, he marked a box agreeing to jointly file his claim with the DCR.

The EEOC eventually told Mr. Cornacchiulo it was “unable to conclude that the information establishes a violation of federal law.” The DCR then wrote a letter to Mr. Cornacchiulo indicating that since the EEOC had closed its file, “a determination has been made” and the DCR was closing its file on the same basis. It did so even though there are important differences between federal and state employment laws, and the DCR had previously informed Mr. Cornacchiulo that, on request, it will review whether the EEOC’s conclusions are consistent with New Jersey law.

After Mr. Cornacchiulo received the letter from the DCR, he filed a lawsuit in a New Jersey state court, claiming Alternative fired him because of his disability in violation of the New Jersey Law Against Discrimination (LAD). Several weeks later, the DCR sent a letter to Alternative’s lawyer stating it was adopting the EEOC’s conclusion and closing Mr. Cornacchiulo’s case. However, the agency never told Mr. Cornacchiulo it had adopted the EEOC’s conclusion.

Alternative then asked the court to dismiss Mr. Cornacchiulo’s lawsuit based on the DCR’s finding. In the meantime, Mr. Cornacchiulo’s lawyer attempted to withdraw his claim from the DCR.

On June 19, 2012, in Cornacchiulo v. Alternative Investment Solutions, L.L.C., the Appellate Division ruled that Mr. Cornacchiulo could not pursue his state law disability discrimination claim in court. The appellate court explained that under the LAD an employee has the option of pursuing a discrimination claim either through the DCR or in court. It also noted that when someone files a case with the DCR, he or she has the option of withdrawing it and filing a private lawsuit. However, he or she has to do so before the DCR reaches its final determination. This is different from determinations by the EEOC, which are not considered final and do not bar a subsequent discrimination lawsuit.

Based on its analysis, the Appellate Division found that the lower court properly dismissed Mr. Cornacchiulo’s lawsuit. It rejected Mr. Cornacchiulo’s arguments based on the fact that he did not realize he had marked the box to file his claim in the DCR, and the EEOC’s form did not warn him of the potential consequences of jointly filing with the DCR. The court ruled that once the DCR reached its final determination, Mr. Cornacchiulo lost his right to bring a separate lawsuit claiming Alternative fired him because he is disabled. However, he still has the option to appeal the DCR’s decision.

The Lesson of the Case

Perhaps the biggest lesson of the Cornacchiulo case is how important it is to speak to an employment lawyer before pursuing your legal rights. For example, although there are some circumstances where it might make sense to pursue a claim through the EEOC or the DCR rather than filing a lawsuit, you should discuss your options with an attorney before you decide which option is best for you.

Supreme Court Rules Pharmaceutical Sales Representatives Not Entitled to Overtime Pay

July 1, 2012 | by Jonathan I. Nirenberg

Last month, the United States Supreme Court ruled that sales representatives working for pharmaceutical companies are not entitled to receive overtime pay under the Fair Labor Standards Act (FLSA). The FLSA is a federal law that requires companies to pay employees most of their employees overtime at the rate of one-and-a-half times their normal hourly rate in each week in which they work more than 40 hours.
Pharmaceutical sales representatives do not directly sell products. Rather, they attempt to convince doctors to prescribe their company’s products to their patients when appropriate. This process is called “detailing.”

At GlaxoSmithKline, sales representatives are paid a base salary plus a commission. Their commissions are based on the total sales of the drugs assigned to them, or the market share in their sales territories. Glaxo does not pay time-and-a-half to its sales representatives when they work overtime. As a result, several salespeople filed a lawsuit claiming they were denied overtime pay in violation of the FLSA.

The issue in the case was whether pharmaceutical sales representatives fall within an exception to FLSA’s overtime requirement under which employers do not have to pay overtime to their outside salespeople. In Christopher v. Beecham Corporation DBA GlaxoSmithKline, the Supreme Court ruled that pharmaceutical sales representatives fall within that exception for a variety of reasons. For example, it recognized that the FLSA uses a very broad definition of the term “sales,” which includes “any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition.” It also concluded that since pharmaceutical sales representatives are not allowed to make direct sales to patients, detailing is the equivalent of sales. Accordingly, it ruled that pharmaceutical sales representatives are not entitled to overtime pay under the FLSA.

Employees Forced to Resign May Be Eligible For Unemployment Benefits

June 26, 2012 | by Jonathan I. Nirenberg

In Lord v. Board of Review, New Jersey’s Appellate Division recently held that an employee who resigned because his employer told him he “had to resign” was not disqualified from receiving unemployment benefits. Specifically, Talmage Lord had a job with Crossmark that involved driving to various retail stores in New Jersey and Pennsylvania to arrange merchandize on shelves. When Mr. Lord notified his manager that he was unsure he would be able to report to work on Monday because his car had broken down, his manager told him he had to “resign effective immediately.” Mr. Lord had no intention of quitting his job, and had already taken efforts to find another way to travel for work.

When Mr. Lord applied for unemployment compensation benefits from the state of New Jersey, his claim was denied on the ground that he left his employment “voluntarily without good cause attributable to the work.” That determination was affirmed by the Appeal Tribunal, which reasoned that Mr. Lord resigned voluntarily because he was the one who initiated the action “which eventually lead[] to the separation.” The Board of Review also affirmed the decision denying unemployment benefits to Mr. Lord. In effect, the New Jersey Department of Labor adopted a rule that employees who are told to resign are ineligible for unemployment benefits, even when an employee who was fired under the same circumstance would have been eligible.

Mr. Lord appealed that decision once again, to the Appellate Division of the New Jersey Superior Court. The Appellate Division is the highest level of appeal for unemployment benefits disputes. The Appellate Division reversed the decision of the Board of Review and awarded the unemployment compensation benefits to Mr. Lord. The court explained that even though Mr. Lord’s manager characterized his termination as a “resignation,” it was not any different from termination from employment. In other words, the court made it clear that employers may not prevent employees they wish to fire from collecting unemployment benefits by forcing them to resign.