New Jersey Employment Lawyer Blog

Requiring Employee to Seek Another Job is an Adverse Employment Action

March 13, 2022 | by Jonathan I. Nirenberg

A recent case recognizes that an employer’s decision to remove an employee from her job and give her an opportunity to search for another position within the company is an adverse employment action. In other words, if it is done for a discriminatory reason, doing so can violate the New Jersey Law Against Discrimination (“LAD”).

Kathleen Fowler, who has epilepsy and is a cancer survivor, worked for AT&T for 30 years and is over 60 years old. In December 2015, AT&T announced a plan to reduce the Technology Planning and Engineering business unit for which Ms. Fowler worked by eliminating numerous positions. AT&T placed the employees impacted by this reduction in force on “surplus status,” meaning they were given the choice to accept a severance package and leave the company, or remain employed for 60 days to search for another job within AT&T. If an employee on surplus status was not offered another position within those 60 days, then she would receive the severance benefits.

Ms. Fowler elected to go onto surplus status. During that period, she was offered two positions, one in New Jersey and the other in Texas. Even though she was better qualified for the position in Texas, Ms. Fowler accepted the job as a senior system engineer because it was in New Jersey and she did not want to interrupt her cancer treatment.

New Law Bans Forced Arbitration of Sexual Harassment and Assault Claims

March 4, 2022 | by Jonathan I. Nirenberg

Arbitration is widely believed to favor big business over individuals. I have written numerous articles about forced arbitration, including cases that enforced arbitration of employment law claims, and ones that overturned such provisions. In my law practice, I have fought against forced arbitration on many occasions.

Yesterday, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 into law. As its name suggest, this law now prohibits forced arbitration of sexual harassment and sexual assault claims. The law received bipartisan support in Congress, a rare feat in the current political climate.

The new statute deems that a person who files a case in which he or she alleges sexual harassment or sexual assault cannot be forced to be bound by an arbitration agreement or class or collective action waiver that he or she entered into before the dispute arose. However, the person asserting the sexual harassment or assault still can chose to enforce an arbitration agreement. Likewise, parties still can agree to enter into arbitration agreements after a dispute involving sexual harassment or sexual assault if that is their preference, and either party can enforce such an agreement.

Employer Too Late to Compel Arbitration in Whistleblower Lawsuit

February 9, 2022 | by Jonathan I. Nirenberg

In a recent employment law case, New Jersey’s Appellate Division ruled that an employer had waived its right to compel arbitration by waiting 10 months before it sought to do so.

Tevin Welcome worked as a van driver for Huffmaster, Inc. Before Huffmaster hired him, Mr. Welcome completed an online application. The application included an arbitration provision, which indicated that if he accepted a job with the company, then he would have to resolve any dispute with the company, including claims of discrimination or retaliation, through arbitration instead of in court.

When Huffmaster hired Mr. Welcome, he moved from Texas to New Jersey for the job. However, he quickly discovered that few of his coworkers and the clients who rode in the van he drove complied with New Jersey’s COVID-19 mask mandate. Mr. Welcome was particularly concerned that he could get COVID and give it to his six-year-old son who has health problems.

NYC Job Ads Soon Must Specify Salary Ranges

February 1, 2022 | by Jonathan I. Nirenberg

Starting soon, most job advertisements in New York City will be required to list the salary range for the job.

More specifically, the failure to include salary range information in a job posting will be unlawful discrimination in violation of the New York City Human Rights Law (“NYCHRL”). To comply with the law, the salary range must not go beyond what the employer believes, in good faith, is the range it would pay someone for the job at the time of the job posting.

In most respects, the law will apply only to employers of at least four employees during the prior year, including independent contractors who are working “in furtherance of an employer’s business enterprise.” However, when there is a claim of gender harassment, then the requirement will apply to employers of all sizes.

Employers Can be Liable for Employment Decision Tainted by Subordinate’s Discrimination

January 5, 2022 | by Jonathan I. Nirenberg

The New Jersey Supreme Court recently recognized that an employer can be held liable for discrimination in violation of the New Jersey Law Against Discrimination (“LAD”) based on an employment decision that was influenced by a subordinate’s discriminatory animus, whether or not the subordinate intended to get the employee fired.

Michele Meade was the Township Manager for Livingston Township. She was involved in disciplining Police Chief Craig Handschuch and Police Sergeant Kenneth Hanna for their failure to alert the Livingston Community Center about training exercises being conducted in the Center’s parking lot by the Emergency Services Unit (“ESU”). As a result, when someone spotted a man wearing camouflage and carrying a rifle bag in the parking lot, the Community Center locked down three preschool classes, and the Police Department dispatched two detectives to the scene.

Following the incident, Sergeant Hanna filed a criminal complaint against Ms. Meade, claiming she violated the law by using “unreasonably loud and offensive coarse or abusive language” when she publicly addressed him about the incident, including by asking him “what kind of f—ing operation are you running here?” Sgt. Hanna filed a second criminal complaint in which he alleged Ms. Meade had “purposely com[e] into physical contact with officers and civilians in an attempt to obstruct and stop an authorized ESU training exercise.” Ms. Meade eventually was acquitted of both charges.

New York State Finally Enacts Broad Whistleblower Law

November 22, 2021 | by Jonathan I. Nirenberg

On October 28, 2021, New York Governor Kathy Hochul signed in law an amendment to New York’s Whistleblower law, Labor Law Sections 740 and 741.

Prior to this amendment, New York’s Whistleblower Law has been very narrow and provided very limited protection. That will change when the amendment goes into effect on January 26, 2022.

New Protected Activities

Court Must Reconsider Whether Sexual Harassment Victim Agreed to Arbitration

November 12, 2021 | by Jonathan I. Nirenberg

A recent decision by New Jersey’s Appellate Division makes it clear that a court must have clear proof an employee agreed to arbitration before an employer can force an employee to arbitrate her case.

Nikki Cordero applied for a job with Fitness International, LLC, also known as LA Fitness International. A few days later, LA Fitness interviewed Ms. Cordero and offered her the position.

On Ms. Cordero’s first day of work, the Gym’s General Manager, Ryan Farley, had her electronically sign a series of documents that he said she needed to sign before she could start her training. According to Ms. Cordero, she did so without seeing what she was signing.

New Jersey Requires Hiring Preferences for Employees Terminated Due to Workplace Injury

November 2, 2021 | by Jonathan I. Nirenberg

New Hiring Preference

A recent amendment to the New Jersey Workers’ Compensation statute now requires many employers to give a hiring preference to employees who lose their jobs as a result of a workplace injury.

More specifically, the worker’s compensation statute now requires employers to provide a “hiring preference” to employees who have reached “maximum medical improvement” after a work-related injury and cannot return to their former job, for “any existing, unfilled position offered by the employer for which the employee can perform the essential duties of the position.”

New Jersey Law Amended to Increase Protection Against Age Discrimination

October 14, 2021 | by Jonathan I. Nirenberg

Older worked forced to retire

New Jersey has an extremely broad anti-discrimination law, the New Jersey Law Against Discrimination (“LAD”). The LAD became even broader last Tuesday, October 5, 2021, when Governor Phil Murphy signed into law a new amendment that increases the statute’s protections against age discrimination by removing several loop holes and exceptions.

More specifically, the amendment makes four changes to the LAD:

New Jersey Law Against Discrimination Permits Punitive Damages Against State and the Local Government

August 23, 2021 | by Jonathan I. Nirenberg

Earlier this month, in Pritchett v. State, the New Jersey Supreme Court confirmed that the state of New Jersey and municipalities remain subject to punitive damages under the New Jersey Law Against Discrimination (“LAD”).

Shelley Pritchett worked for the State of New Jersey as a Senior Corrections Officer at the Juvenile Justice Center (“JJC”). In 2011, Officer Pritchett suffered back, knee and neck injuries when she broke up a fight between two inmates. She went on a workers’ compensation leave as a result. Her doctor subsequently diagnosed her with multiple sclerosis. As a result, she sought to extend her medical leave by approximately 4 ½ months. However, the JJC denied her request, and instead offered to extend her leave by only about a month and told her that if she was not medically cleared to return to work by then she would have to resign.

Officer Pritchett was unable to return to work within the additional time JJC had granted. However, she told the JJC she did not want to resign. In response, JJC told her that if she did not resign by the end of the week, it would initiate disciplinary proceedings to fire her, and she would lose her pension. In response, Officer Pritchett applied for a disability retirement.