New Jersey Employment Lawyer Blog

Senate Votes in Support of Fair Pay Act

January 25, 2009 | by Jonathan I. Nirenberg

On January 22, 2009, the United States Senate voted to pass the Lilly Ledbetter Fair Pay Act of 2009. If into becomes law, the Act would reverse the United States Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), which requires an employee to bring a federal claim of pay discrimination in violation of the Title VII of the Civil Rights Act of 1964 (Title VII) within 180 days (or in some states, including New York and New Jersey, within 300 days) of the decision that caused the pay disparity.

In the Ledbetter case the Supreme Court ruled that Lilly Ledbetter was too late when she filed her gender discrimination lawsuit against Goodyear. In her case, Ms. Ledbetter as seeking damages because she was paid a lower salary than men in comparable positions at the company. The Supreme Court ruled that her claim was untimely because she did not file a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) within 180 days after the company’s initial discriminatory decision, even though she was still underpaid due to the past discrimination, since her salary remained lower than her male coworkers throughout her career.

The Ledbetter decision has been highly criticized ever since it was decided. One problem with it is that employees generally do not know how much their coworkers are paid, often making it difficult or impossible for them to determine that their employers are discriminating against them with respect to their compensation, As a result, employees who have been underpaid because of their race, color, sex (gender), religion, national origin, or disability are unlikely to know about it until long after the 180 (or 300) day EEOC filing deadline.

Damages in Employment Law Cases

January 17, 2009 | by Jonathan I. Nirenberg

Many people who have been fired, demoted, harassed, or experienced some other violation of their employment law rights wonder what kind of damages they can recover if they win their case. Damages in employment law case can vary greatly in different states and under different laws, so it is recommended that you contact an employment lawyer in your area to discuss your specific claims. However, the most common type of damages available in employment law cases in New York and New Jersey include economic damages, emotional distress damages, attorneys fees and costs, punitive damages, and liquidated damages.

Economic Damages

Most employment laws allow for the recovery of economic damages. Economic damages are intended to compensate you for the salary and benefits you lost. They can include your lost salary and the value of your lost benefits like health insurance, a pension, or a 401(k) plan. Economic damages include past losses (called back pay) and future losses (called front pay).

New Jersey Supreme Court Expands Claim of Wrongful Discharge in Violation of Public Policy

December 31, 2008 | by Jonathan I. Nirenberg

On December 16, 2008, in the case of Tartaglia v. UBS PaineWebber, the New Jersey Supreme Court expanded the scope of the claim of wrongful discharge in violation of public policy.

Before explaining the significance of the Tartaglia decision, it is important to understand the claim of wrongful discharge in violation of public policy. The New Jersey Supreme Court first recognized that claim in 1980, when it ruled that it is unlawful to fire a New Jersey employee in if the termination violates a clear mandate of public policy. Specifically, that prohibits a company from firing an employee for objecting to an illegal corporate policy or practice, or for refusing to engage in an illegal activity. It also prohibits companies from firing an employee for blowing the whistle on, or refusing to engage in, acts that are not illegal but violate a clear mandate of public.

A few years later, in 1986, the New Jersey legislature passed the Conscientious Employee Protection Act (CEPA). CEPA prohibits a broad range of retaliatory employment actions, such as making it unlawful to fire an employee for objecting to or refusing to participate in an activity he or she reasonably believed was fraudulent, criminal, violated the law, or was incompatible with a clear mandate of public policy concerning public health, safety or welfare, or the protection of the environment.

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.