New Jersey Employment Lawyer Blog

What is a Constructive Discharge?

May 1, 2010 | by Jonathan I. Nirenberg

Many employment law cases involve employees who are fired in violation of their legal rights. However, companies are often too smart to fire an employee for an illegal reason, and instead try to force them to quit.

Courts understand this reality, and have a name for it: a “constructive discharge.” A constructive discharge is when, instead of firing an employee, a company makes her job so miserable that she is forced to quit.

The Third Circuit recently discussed how an employee can prove a constructive discharge in Colwell v. Rite Aid Corporation. In that case, Ms. Colwell claimed Rite Aid forced her to resign because of her disability, in violation of the Americans with Disabilities Act (ADA), and because of her age, in violation of the Age Discrimination in Employment Act (ADEA). The facts of Colwell are explained in a previous article which discusses a different legal issue — that employers can be required to change an employee’s work shift to accommodate the employee’s disability.

Changing Work Shifts Can Be Required as Reasonable Accommodation for Employee’s Disability

April 21, 2010 | by Jonathan I. Nirenberg

On April 8, 2010, in the case of Colwell v. Rite Aid Corporation, the United States Court of Appeals for the Third Circuit ruled that employers can be required to change an employee’s work shift to accommodate the employee’s disability. The Third Circuit is the federal appellate court that covers several states, including New Jersey.

The Facts of Colwell v. Rite Aid Corporation

Jeanette Colwell worked as a cashier at a Rite Aid store. On some days she worked the day shift (9 a.m. to 2 p.m.), and on other days she worked the night shift (5 p.m. to 9 p.m.).

New Jersey Emergency Responders Employment Protection Act Goes Into Effect

April 1, 2010 | by Jonathan I. Nirenberg

Today, a new employment law, the New Jersey “Emergency Responders Employment Protection Act,” goes into effect. The new law makes it illegal for employers to fire or suspend an employee who fails to report for work because (1) the employee is actively engaged in responding to an emergency alarm, or (2) the employee is serving as a volunteer emergency responder during a state of emergency declared by the President of the United States or the Governor of New Jersey. The law defines volunteer emergency responder as members of volunteer fire companies, first aid squads, rescue squads, ambulance squads, and county or municipal Office of Emergency Management, whose official duties include responding to fires or other emergency calls.

A volunteer emergency responder must meet two additional requirements to be protected by this law:

(1) at least one hour before they are scheduled for work, they must provide notice to their employers that they are providing emergency services in response to an emergency alarm or a state of emergency; and

Retaliation After Termination Can Violate New Jersey Law Against Discrimination

March 22, 2010 | by Jonathan I. Nirenberg

Earlier this year, the New Jersey Supreme Court ruled that an employer can violate the New Jersey Law Against Discrimination if it retaliates against an employee after it fires him. The Appellate Division decision reached the same conclusion in 2008, as discussed in a previous article. The New Jersey Law Against Discrimination prohibits employment discrimination, including harassment and discrimination based on gender, race, age, disability and religion. It also includes a provision that makes it unlawful for anyone to retaliate against someone because they objected to another actual or apparent violation Law Against Discrimination.

The case, Roa v. LAFE, involved a husband and wife who worked for Gonzalez and Tapanes Foods, Inc. (G&T), a New Jersey corporation which does business under the name LAFE Foods. The wife, Liliana Roa, claimed G&T’s Vice President, Marino Roa, had been involved in extramarital affairs with two other G&T employees. Liliana’s husband, Fernando Roa, eventually told Marino’s wife about the affairs. According to Fernando and Liliana, Marino then began a campaign of harassment against them, attempted to make their work lives miserable and threatened to fire both of them. When Fernando told G&T’s President that Marino was sexually harassing company employees, G&T ignored his complaint. G&T eventually fired both Fernando and Liliana.

Fernando and Liliana sued G&T and Marino for firing them in retaliation for Fernando’s complaint of sexual harassment. However, they filed their lawsuit more than two years after G&T fired them. As a result, the trial court dismissed their case because it was filed after the New Jersey Law Against Discrimination’s two year statute of limitations had expired.

Employers Can Be Held Liable for Discriminatory Hiring Decisions Made By Independent Contractors

March 16, 2010 | by Jonathan I. Nirenberg

The Second Circuit Court of Appeals recently ruled that employers can be held liable for discriminatory hiring decisions of independent contractors who are authorized to make hiring decision on the employer’s behalf. The Second Circuit is the federal appellate court that handles appeals from District Courts in New York, Connecticut and Vermont.

The case, Halpert v. Manhattan Apartments Inc., involves an individual, Michael Halpert, who applied for a job showing rental apartments for Manhattan Apartments. When he was seeking the job, Mr. Halpert was interviewed by Robert Brooks. According to Mr. Halpert, during the interview, Mr. Brooks told him he was “too old” for the position.

Mr. Halpert then sued Manhattan Apartments for age discrimination under the Age Discrimination in Employment Act (ADEA). The ADEA is a federal anti-discrimination law which prohibits employers from using age as a basis not to hire, to fire, or otherwise discriminate against employees.

Sexual Harassment of Independent Contractor Can Violate New Jersey Law Against Discrimination

February 24, 2010 | by Jonathan I. Nirenberg

On January 6, 2010, the New Jersey Appellate Division ruled that J.T. Tire Service can proceed with its sexual harassment lawsuit against United Rentals North under the New Jersey Law Against Discrimination. In the case, J.T. Tire alleges that United Rentals terminated its contract with United Rentals because the owner of J.T. Tire, Eileen Totorello, rejected the sexual advances of one of United Rentals’ branch managers, Harold Hinkes.

Specifically, Ms. Totorello alleges that Mr. Hinkes attempted to extort sexual favors from her. She claims that when she initially refused his sexual advances, Mr. Hinkes’ branch temporarily stopped buying tires from J.T. Tire. He only resumed doing business with J.T. Tires after Ms. Totorello agreed to have lunch with him.

Ms. Totorello futher claims that, several years later, Mr. Hinkes kissed her and groped her against her will. When she refused his advances, Mr. Hinkes told her she was making a “very poor business decision.” One month later, United completely stopped doing business with J.T. Tire.

New Jersey Law Against Discrimination Clarified to Include Autisim as Disability

February 21, 2010 | by Jonathan I. Nirenberg

Earlier this year, New Jersey amended its Law Against Discrimination to expressly include “autism spectrum disorders” in its definition of disability. This means it is unlawful for New Jersey employers to discriminate against employees because they are autistic, unless the company can show that the autistic employee cannot perform the essential functions of his or her job, even with a reasonable accommodation. It also means that employers must provide reasonable accommodations for employees who are autistic.

The Law Against Discrimination prohibits employers from discriminating against employees because they belong to legally protected categories. In addition to disabilities, other legally protected categories include age, race, national origin, gender, pregnancy, and religion.

This amendment to the New Jersey Law Against Discrimination was based on an October 8, 2009 report from the Adults with Autism Task Force.

New Jersey Court Finds Emphatic Response to Discriminatory Remark Can Be Legally Protected

January 23, 2010 | by Jonathan I. Nirenberg

New Jersey’s Appellate Division recently upheld a jury verdict which found Avaya, Inc. liable for retaliation in violation of the New Jersey Law Against Discrimination. The case is LaFranco v. Avaya, Inc. It involves an employee who responded to his supervisor’s anti-Semitic statement by emphatically indicating that he is Jewish. In an unpublished opinion, the appellate court found the tone and context of Mr. LaFranco’s response indicated he was offended by the statement. In addition, Mr. LaFranco reasonably believed the comment was religious discrimination. Accordingly, his response was a legally protected objection to unlawful discrimination.

Mr. LaFranco worked as a salesperson for Avaya, a telecommunications company, for more than 12 years. He frequently exceeded his sales quotas and received large commissions. Prior to 2002, all of his performance reviews were positive.

In August 2001, Mr. LaFranco reported to his boss, Patrick Iraca, that he had been improperly denied $10,000 in commissions. Mr. LaFranco subsequently reminded Mr. Iraca of the issue, and suggested that Mr. Iraca should discuss it with his boss. In response, Mr. Iraca asked, in a disgusted voice, “What are you, a Jew?”

Subsidy To Health Benefits Extended

January 1, 2010 | by Jonathan I. Nirenberg

On December 22, 2009, President Obama signed into law the Fiscal Year 2010 Defense Appropriations Act. This new employment law extends the period during which certain employees who are laid off or otherwise lose their jobs through no fault of their own can receive a federal subsidy of their health care costs.

More specifically, this new law extends the period of the subsidy under the American Recovery and Reinvestment Act, commonly called the 2009 Economic Stimulus package. Specifically, for a limited period the United States government will pay 65% of the health insurance premiums for qualified employees, for up to nine months after an employee is involuntarily fired or laid off. Under the Stimulus package, that subsidy applies to qualified employees who lose their jobs between September 1, 2008 and December 31, 2009. The 2010 Defense Appropriations Act extends that period through February 28, 2010. It also extends the maximum length of the subsidy from 9 months to 15 months.

This benefit applies to former employees who are covered by the Consolidated Omnibus Budget Reconciliation Act (COBRA) who involuntarily lose their jobs between September 1, 2008 and December 31, 2009. COBRA applies to people who are eligible to receive health insurance benefits from a company with at least 20 employees. The government subsidy also applies to former employees who work in states that have “comparable continuation coverage” that apply to smaller companies (often called mini-COBRA laws). That includes employees who work for smaller companies in both New York and New Jersey.

Extended Medical Leave Can Be Reasonable Accommodation Under New York Law

December 22, 2009 | by Jonathan I. Nirenberg

New York’s Appellate Division recently recognized that a disabled employee working in New York may be entitled to take extended medical leave under the New York State and New York City Human Rights Law.

The case involved Deborah Phillips, a civil service employee for New York City’s Department of Homeless Services (DHS). After Ms. Phillips had worked for DHS for 18 years, she took a 3 month medical leave for a serious medical condition, stage III breast cancer. Ms. Phillips asked her employer to extend her medical leave for a full year. DHS denied her request because she had exceeded her entitlement to 12 weeks of leave under the Family and Medical Leave Act (FMLA), and was ineligible for additional unpaid medical leave under the Department’s policy. DHS told her that if she did not return to work by October 30, 2006, the date on which she originally agreed to return to work, she would be subject to disciplinary action, or fired.

Ms. Phillips then asked DHS if she could take any additional medical leave. The City denied her request, again telling her that if she did not to return to work by October 30, she would be fired and would lose her medical benefits. Ms. Phillips did not return to work, and DHS eventually fired her.