New Jersey Employment Lawyer Blog

Frequently Asked Questions Regarding the New Jersey Family Leave Insurance Law

December 16, 2008 | by Jonathan I. Nirenberg

Earlier this year, New Jersey became the third state in the country to pass a law entitling employees to be paid during family leaves. New Jersey’s Family Leave Insurance law is set to go into effect in just a few weeks. Since the law is brand new, many employees and employers do not fully understand what the law means or what it requires. This article will answer many of the most frequently asked questions about the New Jersey Family Leave Insurance law.

Q. When Does the Family Leave Insurance Law Go Into Effect?

A. On January 1, 2009, New Jersey companies will begin withholding taxes from employee salaries to fund family leave insurance benefits. Starting on July 1, 2009, qualified employees will be entitled to receive state insurance benefits during covered family leaves.

New Guidelines Under New York’s Employee Blood Donation Leave Law

December 8, 2008 | by Jonathan I. Nirenberg

The New York Department of Labor recently issued guidelines for employee blood donation leave under New York State Labor Law Section 202-j. That law, which went to effect late last year, requires companies with twenty or more employees to allow employees to take time off to donate blood. Those companies must choose either to allow employees at least one leave of absence of up to 3 hours each year to donate blood (off-premises blood donation leave), or allow employees to donate blood during work hours at least twice a year at a “convenient time and place set by the employer,” such as allowing employees to participate in a blood drive at their place of employment, without having to use accumulated leave time (on-premises blood donation leave).

The New York Department of Labor’s new guidelines provide additional detail regarding the rights and requirements of New York’s blood donation leave law. For example, they indicate that:

Off-Premises Blood Donation Leave:

Employers are not required to pay employees during off-premises blood donation leaves.
The right to take off-premises blood donation leave is based on a calendar year, meaning that covered employers that elect off-premises blood donation leave must permit employees to take at least one such leave during each calendar.

On-Premises Blood Donation Leave:

Employers cannot require employees to use accumulated vacation, personal, sick, or other leave time for on-premises blood donation leave.
The right to take leave is based on a calendar year, meaning that covered employers that elect on-premises blood donation leave must offer employees two on-premises blood donation leaves during each calendar year.
The requirement that on-premises blood donation leave must be at a “convenient time” means during an employees’ normal scheduled work hours.
The requirement that on-premises blood donation leave must be at a “convenient place” means employers cannot require employees to travel an unreasonable distance.
Covered employers must offer an alternative option for employees who are unable to participate in an on-premises blood donation leave, such as when an employee is sick or on vacation during a scheduled company blood drive.
Covered companies must give employees who donate blood at an on-premises blood donation leave enough time off to donate blood, recover (including eating something after donating blood), and return to work.
Covered employers must prominently post notice of any on-premises blood donation leave at least two weeks in advance.
Companies cannot schedule an on-premises blood donation leave when a significant number of employees are out of the office, such as during the last week of December or around other major holidays.

Required Notice of Employees’ Rights:

Employers must notify employees in writing of their right to take blood donation leave in a place that ensures employees will see it, such as by posting the information prominently in a place where employees gather, or including the information with employees’ paychecks or in the employee handbook.
Employers can require employees to give advance notice of when they plan to take a blood donation leave. Ordinarily, employers can require employees to give up to 3 workdays’ notice before taking an off-premises blood donation leave, or 2 days notice before an employee participates in an on-premises blood donation leave. However, employers can require up to 10 working days advance notice if necessary because the employee’s position is essential to the company’s operation, and employees can give less than 3 days’ notice if they are donating blood because of an emergency surgery of the employee him or his or her family member.

The employment lawyers at Rabner Baumgart Ben-Asher & Nirenberg are dedicated to enforcing the employment law and civil rights of employees in New York and New Jersey.

New Jersey Employees Can Prove Discrimination Even If Decisionmaker Had No Discriminatory Animus

November 24, 2008 | by Jonathan I. Nirenberg

The New Jersey Appellate Division recently ruled that it is possible for an employee to prove he was fired for a discriminatory reason even if the person who made the ultimate decision to fire him did not have any discriminatory animus. Specifically, that can happen if the employee’s supervisor did something to bias the decisionmaker, or if the decisionmaker’s involvement in the process was a mere formality.

The case, Kwiatkowski v. Merrill Lynch, involved Merrill Lynch’s decision to fire one of its employees, Darren Kwiatkowski. Mr. Kwiatkowski is gay. Merrill lynch fired him after he deliberately disobeyed an instruction from his supervisor, Theresa Wonder.

Immediately after Mr. Kwiatkowski’s insubordination, Ms. Wonder reported him to her supervisor, Sandra Givas, and recommended that the company should fire him. There was evidence that Ms. Wonder knew Mr. Kwiatkowski was gay and was biased against him on that basis. However, there was no evidence that Ms. Givas even knew that he was gay.

Single Anti-Gay Comment Can Create a Hostile Work Environment

November 11, 2008 | by Jonathan I. Nirenberg

On August 13, 2008, in Kwiatkowski v. Merrill Lynch, New Jersey’s Appellate Division ruled that a single anti-gay comment can create a hostile work environment in violation of the New Jersey Law Against Discrimination (“LAD”). In particular, the court ruled that a jury could find that an employee had been unlawfully harassed based solely on his supervisor calling him a “stupid fag” once, under her breath. That is important because the law requires harassment to be either sufficiently severe (bad enough) or pervasive (frequent enough) that the terms and conditions of employment have been materially changed and the employee’s work environment is hostile.

The decision in that case is unpublished. That means it is not binding on other New Jersey courts. However, it is still a significant decision for its reasoning and analysis, which other courts are likely to consider, if not follow.

The plaintiff in that case, Mr. Kwiatkowski, is gay. Although he told only a few of his coworkers, he assumed it was common knowledge that he was gay.

Mitigation of Damages: Employees Bringing Wrongful Termination Claims Must Make Reasonable Efforts to Find Another Job

November 7, 2008 | by Jonathan I. Nirenberg

What Does it Mean to Mitigate Your Damages?

In a discrimination, retaliation, or other wrongful termination case, the largest component of your damages is often your lost wages. The starting point to calculate those damages is to figure out how much you would have received from your former employer if you had not been fired.

However, the law requires you to mitigate your economic losses, meaning you must make reasonable efforts to replace your lost salary and benefits. Accordingly, your economic damages will be reduced by what you earn from a new job you find to replace the job you lost, as well as any additional amount you could have earned if you had made a reasonable (or more reasonable) effort to find another job.

The New Jersey Oppressed Shareholder Statute Protects the Ownership and Employment Interests of Shareholders in Closely Held Corporations

October 28, 2008 | by Jonathan I. Nirenberg

Ownership in a closely held corporation can offer a great opportunity. If the business is successful, corporate ownership can be financially lucrative, offer a career with excellent job security, and otherwise can be a fulfilling venture. Unfortunately, sometimes the controlling shareholders in a small business can take advantage of one or more minority shareholders by ignoring their input, refusing to their share the profits, firing them from their seemingly secure jobs, or otherwise treating them unfairly.

Fortunately, New Jersey law offers protection for the shareholders of closely held corporations from oppression by the controlling shareholders. Specifically, the New Jersey Oppressed Shareholder Statute protects the owners of corporations with 25 or fewer shareholders by granting courts the authority to award a wide variety of relief when the controlling shareholders “have acted fraudulently or illegally, mismanaged the corporation, or abused their authority as officers or directors or have acted oppressively or unfairly toward one or more minority shareholders in their capacities as shareholders, directors, officers, or employees.” N.J.S.A. § 14A:12-7(1).

Among its many protections, the Oppressed Shareholder Statute allows courts to force a corporation to buy out an oppressed shareholder’s stock at a fair price. Although the statute lists dissolution as the remedy when the parties are unable to agree to a price for a buyout, dissolution is considered an extreme remedy that courts impose with caution, only after carefully balancing the interests at stake. Generally, a buyout is considered a more desirable remedy, with the corporation or the majority shareholders buying out the minority shareholder. If the parties are unable to agree on a fair buyout price, the court can order the corporation to purchase the oppressed shareholder’s stock, and in some circumstances can even compel the other shareholders to buy out the minority shareholder.

In addition to protecting a non-controlling shareholder’s equity interest in a closely held corporation, the Oppressed Shareholder Statute protects other interests. N.J.S.A. § 14A:12-7(8)(a). The New Jersey Supreme Court has recognized that one such related interest is the expectation that the shareholder will remain employed with the corporation. Thus, in addition to the value of the shareholder’s ownership in the business, in many situations part of a minority shareholder’s ownership interest in a closely held corporation can include the right to work for the company in a managerial position, with long-term job security and a corresponding salary, as well as a say in the operation and management of the business and its plans for the future. Accordingly, if an employee shareholder is forced out of a closely held corporation, in addition to receiving the value of his or her shares, he or she may be entitled to recover the value of his or her lost salary and employment benefits.

If you are a minority shareholder in a closely held corporation in New Jersey and the controlling shareholders have refused to give you the share of the profits to which you are entitled, squeezed you out of the operations of the business, or fired you from your position with the company, you may have a claim under New Jersey Oppressed Shareholder Statute.

New Jersey Court Rules that Retaliation After You Are Fired Can Violate The New Jersey Law Against Discrimination

October 20, 2008 | by Jonathan I. Nirenberg

On July 7, 2008, in the case of Roa v. LAFE, the New Jersey Appellate Division ruled that retaliation that occurs after an employee was fired can violate the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1, et seq. The New Jersey Law Against Discrimination prohibits discrimination in employment, housing and places of public accommodation. It also includes an anti-retaliation provision that makes it unlawful for:

any person to take reprisals against any person because that person has opposed any practices or acts forbidden under [the New Jersey Law Against Discrimination]… or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [the New Jersey Law Against Discrimination].

N.J.S.A. § 10:5-12(d).

Roa involved Fernando and Liliana Roa, a husband and wife who worked for LAFE, a New Jersey corporation. Liliani claimed that LAFE’s Vice President, Marino Roa, engaged in two extramarital affairs with employees of LAFE. Fernando eventually told Marino’s wife about the affairs. According to Fernando and Liliani, Marino then began a campaign of harassment against them. When Fernando told the president of LAFE that Marino was sexually harassing company employees, LAFE ignored his complaint. LAFE eventually fired both Fernando and Liliani.

New Jersey Supreme Court Clarifies Sexual Harassment Standard: Repeatedly Asking For Dates is Not Sexual Harassment

October 10, 2008 | by Jonathan I. Nirenberg

On August 4, 2008, the New Jersey Supreme Court ruled that repeatedly asking a woman out on a date, even when she repeatedly declines the invitations, does not constitute unlawful sexual harassment. More specifically, New Jersey’s highest Court ruled the harassment alleged was not severe or frequent enough to be legally actionable.

The case, Godfrey v. Princeton Theological Seminary, involved Beth Godfrey and Jennifer Kile, two graduate students in their mid twenties, who were repeatedly asked out on dates by William Miller, a tenant of the Seminary who was in his upper sixties. Godrey and Kile sued the Princeton Theological Seminary for permitting a sexually hostile environment.

Since Godfrey and Kile were not employees of the Seminary, they sued under a section of the New Jersey Law Against Discrimination that states that “[a]ll persons shall have the opportunity . . . to obtain all the accommodations, advantages . . . and privileges of any place of public accommodation. . . without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, disability, nationality, sex , gender identity or expression.” Among other things, that section prohibits sexual harassment in many public places. Godfrey and Kile also sued under Title IX of the Education Amendments of 1972, and for breach of contract.

What You Should Bring to Your Initial Consultation With an Employment Lawyer

October 10, 2008 | by Jonathan I. Nirenberg

If you have experienced workplace discrimination, harassment, or retaliation, a breach of your contract, or another violation of your employment law rights, you might want to meet with an experienced employment lawyer to discuss your employment law rights. But what should you bring to your initial consultation with an employment lawyer? The answer varies depending on the type of case you have. For example, someone with a case would probably want to bring different documents to the meeting than someone who is looking to enhance a severance offer. The following are some of the most important documents a client might want to bring to the first meeting with an employment lawyer.

Chronology or Timeline

In most cases, it is helpful to prepare a chronology or timeline of the relevant events for your employment lawyer. Generally, the chronology should be brief — in most instances between 1 and 3 pages. It should list the most important events relating to your employment issue, and identify the names and job titles of the people involved in those events. When possible, the chronology should provide the dates of the key events, and ideally should be in chronological order.

When Can A Private Company Require Random Drug Testing in New Jersey?

October 2, 2008 | by Jonathan I. Nirenberg

From the standpoint of employees, random drug testing policies can be invasive, offensive, and a violation of their right to privacy. For example, drug testing can reveal information about an employee’s medical condition or prescribed medication, even when the employer has no legitimate right to that information. In contrast, from the standpoint of a private company, random drug testing can be an effective tool to limit workplace accidents, theft, and poor job performance.

Given those competing interests, when determining whether a private company’s random drug testing policy is an impermissible invasion of privacy, New Jersey law requires a balance between the employee’s privacy interests against the public interest being advanced by the employer. In New Jersey, an employee who is fired for refusing to participate in a private company’s random drug testing program may have a legal claim for wrongful discharge in violation of public policy if the employee was fired for refusing to submit to random drug testing and the employee’s privacy interest outweighs the public interest in favor of the testing.

Determining if the public interest outweighs the right to privacy for a particular random drug testing program is a difficult question. To make that determination, a court has to balance the employee’s right to privacy with employer’s reason for testing. For example, the New Jersey Supreme Court has found that if an employee’s duties are “so fraught with hazard that his or her attempts to perform them while in a state of drug impairment would pose a threat to co-workers, to the workplace, or to the public at large, then the employer must prevail.” Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992). Some of the factors used to determine the public policy interest in favor of testing include whether there is any evidence of drug use by employees, the potential dangers of the employee’s job, how long the drug testing program has been in place, and whether the employer can effectively detect drugs without testing, such as by having supervisor observe employee behavior.