New Jersey Employment Lawyer Blog

New Jersey Employees Can Recover Lost Wages if Forced to Resign Because Retaliation Caused Psychiatric Disorder

June 9, 2011 | by Jonathan I. Nirenberg

Earlier today, the New Jersey Supreme Court ruled that employees who are forced to resign as a result of retaliation by their employers in violation of the Conscientious Employee Protection Act (CEPA) may be able to recover lost past and future wages even if they were not fired or constructively discharged. CEPA is New Jersey’s whistleblower law. Among other things, it prohibits employers from retaliating against employees who object to or refuse to participate in activities they reasonably believe are illegal, fraudulent, or violate a clear mandate of public policy regarding public health, safety, welfare, or the environment.

John Seddon, an employee who worked as an operator technician for DuPont, reported numerous workplace safety concerns, and eventually filed a complaint with the United States Occupational Safety and Health Administration (OSHA). DuPont retaliated against him in numerous ways, including verbal abuse, negative performance reviews, putting him on probation, forcing him to take a disability leave, suspending him for 53 days, making false accusations about him, and requiring him to work 12-hour shifts in isolation. The harassment eventually caused Mr. Seddon to suffer a mental breakdown. Unable to work for DuPont any longer, he took a 6-month disability leave of absence, and then began receiving a disability pension.

After a trial, a jury awarded Mr. Seddon $724,000 in economic damages and $500,000 in punitive damages. The trial court also awarded him $523,289 in attorney’s fees, for a total of nearly $1.75 million. However, the New Jersey Appellate Division reversed the verdict, ruling that Mr. Seddon could not recover lost wages under CEPA because he was neither fired nor constructively discharged. A constructive discharge is when an employee is forced to quit because his work environment is so intolerable that any reasonable person in his situation would feel compelled to resign.

But, the New Jersey Supreme Court disagreed that an actual firing or constructive discharge is required for an employee to recover lost wages under CEPA. Rather, the Court ruled that an employee can recover lost wages if his employer’s illegal retaliation caused him to be unable to work. As a result, in Donelson v. DuPont Chambers Works, it restored Mr. Seddon’s judgment.

Court Rules Public Employee’s Internet Postings Can Be Protected by the First Amendment

June 8, 2011 | by Jonathan I. Nirenberg

Earlier this year, in an unpublished opinion, the Third Circuit Court of Appeals ruled that a trial judge should not have dismissed a lawsuit claiming that his employer fired him in retaliation for speaking about a matter of public concern, in violation of First Amendment. The Third Circuit is a federal court that handles appeals from the United States District Court for the District of New Jersey.

The case, Beyer v. Duncannon Borough, involves Police Officer Eric Beyer’s claim that his employer, the Duncannon Borough, fired him in retaliation for expressing his opinion that the Borough should purchase higher velocity weapons for its police officers. Beyer posted comments on the internet and appeared on the Fox local news to express his opinion about purchasing the weapons. Mr. Beyer’s claims that Borough officials “openly attacked” him in response to his opinion, called his internet postings inappropriate, and eventually fired him.

Beyer sued, claiming the decision to fire him was retaliation in violation of his right to free speech under the First Amendment to the United States Constitution. The trial court dismissed his case, finding the facts did not support the conclusion that the Borough retaliated against him.

The Third Circuit disagreed, and reinstated Mr. Beyer’s case. First, it explained that a public employee’s speech is protected by the First Amendment if (1) he spoke as a citizen, rather than in his capacity as an employee, about a matter of public concern, and (2) the government did not have an adequate reason for treating him differently. On the first requirement, it found Mr. Beyer could have been speaking in his capacity as a citizen because he made his internet postings and gave his television interview during his off-duty hours, and used a pseudonym for his internet postings rather than making them as part of his job duties as a police officer. With respect to the second requirement, the court found Mr. Beyer’s opinion that the Police Department should have higher velocity weapons could relate to a matter of public concern because it had to do with the safety of the Police Force, which in turn relates to public safety. The Court also considered the fact that Mr. Beyer communicated his opinion publicly, using the internet and TV news.

The Third Circuit then concluded that Mr. Beyer’s alleged facts supported the conclusion that his employer fired him in retaliation for his speech on an issue of public concern. It noted that employee can prove retaliation based on either (1) very close timing between the employee’s legally protected activity and the employer’s act of retaliation, or (2) a pattern of antagonism between the employee’s protected activity and the employer’s act of retaliation. It found that, based on Mr. Beyer’s allegations, it was plausible that the Borough had retaliated against him. It therefore ruled that he should have an opportunity to try to prove his claim, and reversed the trial court’s decision dismissing his case.

Filing Lawsuit Can Be Protected Under New Jersey’s Whistleblower Law

June 3, 2011 | by Jonathan I. Nirenberg

On April 14, 2011, New Jersey’s Appellate Division ruled that filing an employment discrimination lawsuit can be a protected “whistleblower” activity under the New Jersey Conscientious Employee Protection Act (CEPA). Among other things, CEPA prohibits New Jersey employers from retaliating against an employee because he discloses or threatens to disclose to a supervisor or a public body, an activity, policy or practice that he reasonably believes violates the law.

The case, Hester v. Parker, involves Terry Hester, the former Director of Facilities/Operations for the Winslow Township Board of Education (Board). Mr. Hester, who is Caucasian, complained to the Board’s Director of Human Resources that Patricia Parker, an African-American Board member, made racist and discriminatory comments about job candidates.

After the Board failed to address his internal discrimination complaint, Mr. Hester filed a lawsuit under the New Jersey Law Against Discrimination (LAD). However, the trial court dismissed his lawsuit.

But, in an unpublished decision the Appellate Division reversed. It ruled that both Mr. Hestor’s internal complaint and lawsuit alleging reverse discrimination could be considered protected “whistleblowing” under CEPA. The Court also concluded that a jury could find the Board’s decision to fire Mr. Hestor was retaliatory based on the fact that it gave him a negative performance evaluation only ten days after he filed his lawsuit, and the Superintendent recommended firing him only nine days after the Board received a copy of his lawsuit.

However, the Appellate Division made it clear that not every civil lawsuit or internal complaint to an employer is covered by CEPA. Rather, it ruled that a lawsuit is protected by CEPA only if (1) the employee complained about a violation of a mandatory legal standard like discrimination based on race, gender, religion, or sexual preference, and (2) the employee made an internal complaint before filing the lawsuit, but the employer failed to address it.

New Jersey Court Rules Employers Cannot Force Employees to Take FMLA Leave

May 27, 2011 | by Jonathan I. Nirenberg

On May 5, 2011, New Jersey’s Appellate Division ruled that employers do not have the right to force employees to complete Family Medical Leave Act (FMLA) medical certifications, or to require employees to take FMLA leaves. The FMLA is a federal law that permits qualified employees to take up to 12 weeks off per year for (1) their own serious health condition, (2) the serious health condition of their spouse, son, daughter, or parent, (3) their own pregnancy, or (4) the adoption, or placement of a child in foster care.

The case, In the Matter of Township of Parsippany-Troy Hills, involves an employee who wanted to use paid sick leave instead of taking an unpaid FMLA leave when he took a family leave to care for a sick relative. His employer, the Township of Parsippany-Troy Hills, asked him to submit a FMLA certification form from his health care provider, and threatened to suspend him after he refused to submit the form.

The Appellate Division concluded that the FMLA does not permit an employer to force an employee to submit an FMLA medical certification, and therefore it is improper for an employer to discipline an employee because he refuses to submit one. Furthermore, if the employee is entitled to take the same time off under another employment policy or a union collective bargaining agreement, then the employer must grant the employee but the employee will not be protected by the FMLA.

The Appellate Division also ruled that if an employee refuses to provide enough information for the employer to determine whether his leave qualifies under the FMLA, then the company can deny the employee’s request for an FMLA leave on that basis. That is because the employer does not have enough information to determine whether the leave qualifies under the FMLA due to the employee’s refusal to provide enough information. So, for example, if the employer asks the employee to submit an FMLA medical certification, and the employee refuses to do so, then the employer can deny the employee’s request for an FMLA leave.
In reaching those conclusions, the Appellate Division explained that companies covered by the FMLA must give employees four different forms of notice about their rights under the FMLA:

General Notice: Employers must post general notice of the FMLA’s provisions and the procedures for filing a complaint for a violation of the FMLA in a conspicuous location, and include it in any employee handbooks or other written policies provided to employees;
Eligibility Notice: When the employer becomes aware that an employee’s time off might qualify under the FMLA, the employer must tell the employee whether he is eligible to take an FMLA leave based on his length of employment and the size of the company;
Rights and Responsibilities Notice: When an employee requests an FMLA-qualifying leave, or the employer has enough information to know the employee’s leave might qualify under the FMLA, the employer must tell the employee about his rights and responsibilities under the FMLA, and the potential consequence if he fails to meet those obligations; and
Designation Notice: Once an employer has enough information to determine whether an employee’s requested leave qualifies under the FMLA, it must inform him whether it qualifies.

Limited Time to Review Release is No Defense to Waiver of Employment Law Claims

May 10, 2011 | by Jonathan I. Nirenberg

Often, companies offer money or other benefits to employees who they have laid off or fired, as part of a severance agreement or separation package. Most severance agreements require you to waive your employment law rights before you can receive those benefits. In a recent case, Gregory v. Derry Township School District, the Court of Appeals for the Third Circuit ruled that an employee waived her right to bring a discrimination claim against her employer because she signed a Separation Agreement and General Release, even though she only had 15 minutes to review it before she signed it.

The Third Circuit is the federal appellate court that handles appeals from the District of New Jersey. It ruled that when deciding whether an employee had waived his legal rights, a Court should look at the totality of the circumstances including:

How clear and specific the language of the release is;
The employee’s education and business experience;

New Jersey Makes it Illegal to Discriminate Against Unemployed Job Candidates

May 2, 2011 | by Jonathan I. Nirenberg

Last November, I wrote about a potential new law that would make it illegal for companies in New Jersey to say that unemployed job candidates need not apply for job openings. Governor Christopher Christie conditionally vetoed the bill, and recommended several changes to it. The Legislature passed an amended version of the bill, which Governor Christopher Christie signed it into law on March 29, 2011. The new law goes into effect on June 1, 2011.

Under the new unemployment discrimination law, it is illegal for employers to knowingly or purposefully publish or print on the internet a job advertisement that states that (1) being currently employed is a job requirement; (2) the employer will not consider job applicants who are currently unemployed; or (3) the employee will only consider job applicants who are currently employed. However, the law does not apply if it would conflict New Jersey civil service laws. It also does not prevent companies from advertising that only job applicants who are currently working for the employer will be considered.

The new employment law statute also makes it clear that it does not prohibit employers from advertising any other qualifications for a job permitted by law, such as requiring a valid professional or occupational license, certificate, registration, permit or other credential, or a minimum level of education, training, or experience.

The new law makes it clear that it does not give individuals who have been impacted the right to bring a private lawsuit. Instead, employers who violate the law are subject to fines of up to $1,000 for a first violation, and up to $5,000 for any subsequent violations. This is significantly lower than the originally proposed fines of up to $5,000 for a first violation and up to $10,000 for any subsequent violations.

More About the EEOC’s New Americans with Disabilities Act Regulations

April 19, 2011 | by Jonathan I. Nirenberg

Last week, I discussed the Equal Employment Opportunity Commission (“EEOC”)’s new regulations regarding the Americans with Disabilities Act Amendments Act (ADAAA) which discuss the newly broadened scope of the ADA, and the terms “major life activity” and “substantially limited.” In this article, I will focus on ADAAA regulations that cover the concept of “mitigating measures” for disabilities, and how to prove that an employee has a “record of” a disability or is “regarded as” having a disability.

What Are “Mitigating Measures,” and When Can They Be Taken Into Consideration Under the ADAAA?

Under the ADAAA, most “mitigating measures” must be ignored when determining whether an individual is disabled include. A mitigating measure is something that reduces or minimizes the limitations caused by a disability. Examples of mitigating measures include medication, medical equipment and devices, prosthetic limbs, low vision devices, hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations, learned behavioral or adaptive neurological modifications, psychotherapy, behavioral therapy, and physical therapy.

However, the new ADAAA regulations indicate it is appropriate to consider the negative side effects of a mitigating measure when determining whether an individual is disabled. Similarly, it is proper to consider a mitigating measure when deciding whether an employee is qualified for his job, or is entitled to a reasonable accommodation for his disability.

What Does it Mean to Have a “Record of” a Disability?

In addition to protecting individuals who are actually disabled, the ADA protects individuals with a “record of” a disability. Under the new ADAAA regulations, someone has a record of a disability if he previously had an impairment that substantially limited him in a major life activity, or was misclassified as having an impairment that substantially limited a major life activity.

What Does it Mean to Be “Regarded as” Having a Disability?
The ADAAA also protects individuals who are “regarded as” being disabled. According to the new regulations, this includes any employee whose employer correctly or incorrectly believed he has an impairment, unless the employer reasonably believed the impairment was both minor and expected to last for six months or less. Unlike the previous ADA regulations, under the new regulations an employer does not have to believe the impairment substantially limited the employee’s ability to perform a major life activity to regard an employee as disabled.

EEOC Issues New Americans with Disabilities Act Regulations

April 12, 2011 | by Jonathan I. Nirenberg

As I previously discussed, protection for disabled employees was vastly expanded on January 1, 2009, when the Americans with Disabilities Act Amendments Act (ADAAA), a law expanding the scope of Americans with Disabilities Act (ADA), went into effect. On March 25, 2011, the United States Equal Employment Commission (EEOC) established its final regulations clarifying the ADAAA. Courts generally must follow these regulations unless they are inconsistent with the ADAAA.

Below, I discuss some of the regulations regarding the scope of the ADAAA, and the terms “major life activity” and “substantially limited.” Next week, I will discus additional regulations that explain when an employer can consider “mitigating measures” for disabilities, and how to prove that someone is covered by the ADA because he has a “record of” a disability or is “regarded as” having a disability.

The Scope of the ADAAA
The new regulations make it clear that the ADAAA is intended to broaden the definition of the term “disability” and to make it easier for employees to meet that definition. The ADA still covers individuals who have (1) an actual physical or mental impairment that “substantially limits” a “major life activity;” (2) a “record of” such an impairment, and (3) are “regarded as” having an impairment. However, the meanings of those terms have been broadened significantly.

What is a “Major Life Activity” Under the ADAAA
The regulations explain that the term “major life activity” includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.

Some impairments almost always are considered disabilities. Examples include deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.

What Does it Mean to “Substantially Limit” a Major Life Activity?
The regulations say the term “substantially limits” should be interpreted broadly and does not necessarily require an individual to be severely or significantly limited. Generally, the focus should be on whether the employer discriminated against the employee, not on whether the employee meets the definition of disabled.

They also say that, when determining whether the impairment is a disability, you can consider the condition, duration, and manner in which an individual can perform a major life activity. They further clarify that an impairment can be covered by the ADAAA even if it lasts less than six months, is episodic, or is in remission. For example, episodic impairments like epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia, and cancer in remission, all can be impairments under the ADAAA.

Gender Discrimination Lawsuit Gives Bayer a Headache

April 6, 2011 | by Jonathan I. Nirenberg

A group of six female employees of Bayer HealthCare Pharmaceuticals recently filed a class action lawsuit claiming the company discriminated against them because of their gender. The case, which was filed in the United States District Court in Newark, New Jersey on March 21, 2011, seeks $100 million in damages.

The lawsuit claims Bayer discriminated against its female employees who hold Associate Director and higher level positions, in violation of the New Jersey Law Against Discrimination and Title VII of the Civil Rights Act of 1964. According to Katherine Kimpel, the employment lawyer who represents the plaintiffs in the lawsuit, “Bayer engages in systemic discrimination against its female employees – particularly those with family responsibilities – by paying them less than their counterparts, denying them promotions into better and higher paying positions, limiting their employment opportunities to lower and less desirable job classifications, and exposing them to different treatment and a hostile work environment.”

Female Employee Being Discriminated Against.jpg According to a press release issued by the law firm representing the female employees, the lawsuit claims Bayer published articles describing women as being prone to “mood swings,” “indecision,” and “backstabbing,” and concluding that “women with power are ‘loose cannons’ who often feel threatened by colleagues.” The case further alleges that Bayer’s managers made disparaging comments about working mothers, including saying the company “needed to stop hiring women of reproductive age.”

According to a company spokesperson, “Bayer denies the allegations of gender discrimination and will vigorously defend itself against these charges.” However, “Bayer will not comment further on pending litigation, other than to note that it is committed strongly to a policy of non-discrimination and equal treatment for all employees.” Bayer HealthCase Pharmaceuticals, which is a subsidiary of Bayer Corporation, has its headquarters in Wayne, New Jersey.

U.S. Supreme Court Rules FLSA Forbids Retaliation Against Employees Who Make Oral Complaints

April 1, 2011 | by Jonathan I. Nirenberg

On March 22, 2011, the United States Supreme Court ruled that the Fair Labor Standards Act of 1938 (“FLSA”) prohibits employers from retaliating against employees who make oral complaints about violations of the FLSA. The FLSA is a federal law that sets minimum wages, maximum hours, and overtime pay requirements. It includes an anti-retaliation provision which forbids employers from firing or otherwise discriminating against employees because they “filed any complaint” under the FLSA.

The case, Kasten v. Saint-Gobain Performance Plastics Corp., involves Kevin Kasten’s lawsuit against his former employer, Saint-Gobain Performance Plastics Corporation. Mr. Kasten claimed Saint-Gobain fired him in retaliation for his verbal objections to the company’s violation of the FLSA. Specifically, he repeatedly told his supervisor, several human resources representatives, and other Saint-Gobain officials that the company was violating the law by locating its time clocks in a place where employees could not get credit for the time they spent putting on and taking off their protective gear. In a separate lawsuit, Mr. Kasten proved that Saint-Gobain violated the FLSA because it was required to pay its employees for the time they spent “donning and doffing” their protective gear.

The Supreme Court found that Mr. Kasten is entitled to try to prove his retaliation case because “filing any complaint” under the FLSA can include making a verbal complaint to your employer. The Court noted that the word “filed” has different meanings in different contexts. Sometimes it implies something in writing, but in other contexts it can include verbal statements. It then considered that when Congress passed the FLSA, it recognized enforcement of the law was likely to depend on “information and complaints received from employees seeking to vindicate rights claimed to have been denied,” and that the anti-retaliation provision was intended to encourage employee to come forward by preventing employers from silencing them through “fear of economic retaliation.” Accordingly, the Court concluded that Congress did not intend to limit the FLSA’s anti-retaliation protection to written complaints, since that would make it more difficult for illiterate, less educated, and overworked workers to complain. It also explained that limiting complaints to written complaints would prevent Government agencies from using hotlines, interviews, and other verbal complaint methods, and would discourage employees from using informal workplace grievance procedures.

However, the Supreme Court also recognized that it would not be fair to employers if the FLSA’s anti-retaliation provision applied when the employer did not have fair notice that the employee made a complaint that could subject the company to a retaliation claim. It therefore ruled that an oral complaint must have enough formality that the employer either understood or reasonably should have understood that the complaint was a business concern. In other words, a complaint is “filed” when a reasonable person would have understood that the employee put the employer on notice that he was asserting a right under the FLSA.