New Jersey Employment Lawyer Blog

Time Worked From Home Counts Toward FMLA’s Minimum Hour Eligibility Requirement If Employer Knew or Had Reason to Know Employee Worked From Home

October 14, 2009 | by Jonathan I. Nirenberg

On September 23, 2009, in Erdman v. Nationwide Insurance Company, the United States Court of Appeals for the Third Circuit discussed when an employee’s time working from home counts toward the 1,250 minimum hours required for an employee to be covered by the Family & Medical Leave Act (FMLA). The Third Circuit is the federal appellate court that includes New Jersey. The FMLA is a federal employment law that permits qualified employees to take time off from work to care for their own serious medical conditions, the serious medical conditions of members of their immediate family, for pregnancy, childbirth, adoption, or foster care, or to care for a new child.

The employee in that case, Brenda Erdman, has a daughter with Downs Syndrome. In 1998, Ms. Erdman’s employer, Nationwide Insurance Company, permitted her to work part time so she could care for her daughter. Ms. Erdman worked part time for four years, when she switched to a four day work week.

Ms. Erdman worked nearly 1,300 hours for Nationwide Insurance during the year at issue, including more than 100 hours that she worked from home. She had previously worked from home for Nationwide for many years. Nationwide consistently either paid her for working those hours, or allowed her to use the time as “comp” time.

NYC Human Rights Law Broader Than State and Federal Anti-Discrimination Laws

September 24, 2009 | by Jonathan I. Nirenberg

New York City’s Broad Definition of Harassment

Earlier this year, the New York Supreme Court’s Appellate Division interpreted the New York City Human Rights Law (NYCHRL) much more broadly than courts have interpreted New York State and federal employment laws prohibiting discrimination, harassment and retaliation. Under state and federal anti-discrimination laws, an employee must prove that harassment was “severe or pervasive.” That means harassment does not violate New York State or federal law unless it is sufficiently harmful or frequent that it significantly impacts the terms and conditions of employment. However, the Appellate Division ruled that harassment does not need to be severe or pervasive to violate the NYCHRL.

New York City’s Human Rights Law applies not only to employees who work in New York City, but also applies if the discrimination, harassment, or retaliation originated in New York City.

New York Human Rights Law Amended to Prohibit Discrimination Against Victims of Domestic Violence

September 5, 2009 | by Jonathan I. Nirenberg

Earlier this year, New York State Gov. David Paterson signed a law that amends the New York Human Rights Law to prohibit employers from discriminating on the basis of an individual’s status as a victim of domestic violence. As a result, it is now unlawful for employers in New York State to fire, refuse to hire, harass, or otherwise discriminate against employees with respect to the terms, conditions, or privileges of employment, because they have been the victim of an act of domestic violence, including stalking.

The sponsor of the statute in the New York State Assembly, Westchester County Assemblywoman Amy Paulin, noted that “financial security is one of the most import factors in whether a victim of domestic violence will be able to separate from an abusive partner.” Paulson also indicated that this new law “will help victims [of domestic violence] maintain their jobs without fear of unfair termination.”

In addition to now prohibiting employers from discriminating on the basis of status as a victim of domestic violence, the New York Human Rights Law also prohibits discrimination based on an individual’s age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, or marital status.

EEOC Issues New Guidance to Employees Regarding Waivers of Discrimination Claims in Severance Agreements

August 21, 2009 | by Jonathan I. Nirenberg

On July 15, 2009, the United States Equal Employment Opportunity Commission (EEOC) issued guidance to employees who are offered severance agreements that include releases of employment law claims after they have been laid off or otherwise fired. More specifically, the EEOC’s guidance answers questions employees might have regarding severance agreements that require them to waive their rights under employment laws such as Title VII of the Civil Rights Act (Title VII), which prohibits gender discrimination, race discrimination, national origin discrimination, and religious discrimination; the Americans with Disabilities Act (ADA), which prohibits disability discrimination; and the Age Discrimination in Employment Act (ADEA),which prohibits age discrimination. While it is focused on federal claims, the guidance is also relevant to claims under state laws, such as the New Jersey Law Against Discrimination (LAD), the New Jersey Conscientious Employee Protection Act (CEPA), the New Jersey Civil Rights Act (NJCRA), and the New York Human Rights Law (NYHRL).

A significant portion of the EEOC’s guidance discusses what is required for a waiver in a severance agreement to be valid. Specifically, waivers (1) must be knowing and voluntary, (2) must offer the employee some consideration, meaning a benefit the employee would not otherwise receive, and (3) must comply with applicable state and federal laws.

The EEOC notes that, to determine whether an employee knowingly and voluntarily waived the right to sue for employment law claims like discrimination, retaliation, or harassment, courts generally consider factors such as:

Inadequate Sexual Harassment Investigation Can Help Support Discrimination Claim By Alleged Harasser

August 3, 2009 | by Jonathan I. Nirenberg

On May 22, 2009, in the case of Sassaman v. Gamache, Commissioner, Dutchess County Board of Elections, the United States Court of Appeals for the Second Circuit reinstated the gender discrimination claim of an employee who was forced to resign because another employee accused him of sexual harassment. The Second Circuit is the federal appellate court that covers several states, including New York.

The plaintiff in that case, Carl Thomas Sassaman, worked for the Dutchess County Board of Elections. In March 2005, another Board of Elections employee, Michelle Brant, accused Mr. Sassaman of harassing and stalking her. Mr. Sassaman denied harassing Ms. Brant. He also claimed that she had previously asked him if he was interested in a one-time sexual encounter with her, which he declined.

When Ms. Brant complained about the sexual harassment, the Commissioner of the Board of Election, David Gamache, suggested that Ms. Brant file a complaint with the Dutchess County Prosecutor’s office. The Prosecutor’s office subsequently found insufficient proof that Mr. Sassaman had enaged in a crime.

Employees’ Private Communications With Lawyers on Company Computers Protected By Attorney-Client Privilege

July 15, 2009 | by Jonathan I. Nirenberg

On June 26, 2009, in Stengart v. Loving Care Agency, Inc., New Jersey’s Appellate Division ruled that confidential emails employees send to their lawyers using company computers are protected by the attorney-client privilege.

Under the attorney-client privilege, communications made in confidence between lawyers and their clients in the course of their professional relationship are privileged. The primary reason for the attorney-client privilege is to encourage clients to engage in a full and free disclosure of information with their lawyers.

In Stengart, employee Marina Stengart was still working for Loving Care Agency, Inc., when she emailed an employment lawyer about her potential discrimination case. She sent emails to her attorney, using her private Yahoo email address, from her company-issued laptop.

New Jersey Law Prohibits Refusal to Renew Contract Because Employee is Over 70 Years Old

June 25, 2009 | by Jonathan I. Nirenberg

The New Jersey Law Against Discrimination (LAD) prohibits employers from discriminating against employees on the basis of age. Among other things, it prohibits employers from firing, refusing to hire or requiring an employee to retire because of their age.

However, the LAD expressly does not prohibit employers from refusing to hire or promote a person over 70 years old. As a result, someone who is not hired or promoted because they are over seventy years old does not have an age discrimination claim under the LAD.

On April 23, 2009, in Nini v. Mercer County Community College, the New Jersey Appellate Division ruled that this over-seventy exception does not apply to a company’s failure to renew an employment contract. In other words, a company violates the LAD if it decides not to renew an employment contract of an individual who is over 70 years old based on the employee’s age.

After-Acquired Evidence Inadmissible Until After Jury Finds Wrongful Termination

June 18, 2009 | by Jonathan I. Nirenberg

Earlier this month, New Jersey’s Appellate Division ruled that it is improper to present a jury with evidence regarding “after-acquired evidence” until after it has determined that an employer violated New Jersey’s Conscientious Employee Protection Act (CEPA). CEPA is New Jersey’s whistleblower law.

After-acquired evidence is when a company learns during a discrimination or retaliation lawsuit that the employee did something while he worked for the company that would have been grounds for firing him. If the employer can prove it would have fired the employee based on the new evidence, the employee’s damages for lost salary and benefits are cut off from the date on which the employer learned the new information.

Even when it applies, the after-acquired evidence defense does not prevent an employee from proving a wrongful termination claim, does not impact damages for salary and benefits the employee lost before the employer discovered the wrongdoing, and does not limit damages for emotional distress damages in any way. It only cuts off damages for lost salary and benefits starting from the date on which the employer discovered the new information.

Employees Working in Other States Can Sue Under New York’s Anti-Discrimination Laws

May 29, 2009 | by Jonathan I. Nirenberg

If you have been the victim of unlawful discrimination or harassment, you might be able to sue your employer for under New York law even if you never worked in New York. At least according to one New York appellate court, employees can bring discrimination claims under New York’s anti-discrimination law if they are residents of New York or if the company made its discriminatory decision in New York, even if their jobs were out of state. For example, a New York State resident who works in New Jersey or Connecticut can sue his or her employer for discrimination under New York law.

Among other things, the New York Human Rights Law (NYHRL) prohibits employment discrimination and harassment based on an individual’s age, race, creed, color, national origin, sexual orientation, military status, gender, genetic characteristics, or marital status. The New York City Human Rights Law (NYCHRL) prohibits discrimination and harassment based on virtually all of those categories, as well as discrimination based on gender identity, partnership status, alienage/citizenship status, and status as a victim of domestic violence, stalking or sex offense. Both laws prohibit companies from retaliating against employees who complain about legally prohibited discrimination or harassment.

The NYHRL specifically states that it applies to acts committed outside of New York State if the employee is a resident of New York. Thus, New York residents can sue companies for violating the NYHRL even if they worked in another state.

Discrimination Against Caregivers

May 22, 2009 | by Jonathan I. Nirenberg

Earlier this month, the United States Equal Employment Opportunity Commission (EEOC) published suggested best practices for companies to minimize the chance of violating the rights of employees who are also caregivers. Those suggested practices supplement the guidelines the EEOC issued in 2007 regarding when it is unlawful for an employer to discriminate against an employee who is a caregiver.

Although there is no law in New York or New Jersey which expressly prohibits discrimination against employees because they are caregivers, many state and federal laws provide protection to caregivers under certain circumstances. For example, the New Jersey Law Against Discrimination, the New York Human Right Law, the Family & Medical Leave Act (FMLA), the New Jersey Family Leave Act, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act (ADA) all provide some protection to caregivers.

The EEOC’s 2007 guidelines regarding employees with caregiving responsibilities recognize that, in part due to anti-discrimination laws, women now make up nearly half of the workforce in the United States. In addition, while the role of men as caregivers has substantially increased over the past 50 years, women still disproportionately have the primarily responsibility for caring for children and elderly parents, in-laws, and spouses. As a result, employment practices that disfavor caregivers disproportionately harm women.