Discrimination

Non-Disparagement Clause Cannot Prevent Employee From Discussing Discrimination

May 7, 2024 | by Jonathan I. Nirenberg

Today, the New Jersey Supreme Court ruled that the New Jersey Law Against Discrimination (“LAD”) prohibits non-disparagement agreements that have the impact of preventing an employee from discussing the facts of their discrimination, harassment or retaliation claim.

Non-disparagement clauses are very common in settlement agreements in employment law cases. Typically, they prevent the employee from saying anything negative about their former employer.

The case interpreted a 2019 amendment to the LAD that was passed in response to the #MeToo movement. Specifically, the legislature amended the LAD to deem that any provision in a settlement agreement that “has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment . . . shall be deemed against public policy and unenforceable.”

Non-Disparagement Clauses Do Not Violate New Jersey Law Against Discrimination

June 6, 2022 | by Jonathan I. Nirenberg

Last week, in Savage v. Township of Neptune, the Appellate Division ruled that a 2019 amendment to the New Jersey Law Against Discrimination (“LAD”) does not prohibit parties from entering into non-disparagement clauses.

The Appellate Division’s opinion involved Christine Savage, a Sergeant for the Township of Neptune Police Department. Sgt. Savage brought an employment discrimination case against Neptune, Police Director Michael J. Bascom, Police Chief James M. Hunt, in which she alleged they engaged in sexual discrimination, harassment, and retaliation in violation of the LAD, the New Jersey Civil Rights Act (“NJCRA”), and the free speech provision of the New Jersey Constitution.

Sgt. Savage eventually settled her case. The settlement agreement included a mutual non-disparagement provision which prevented the parties from making any statements “regarding the past behavior of the parties, which statements would tend to disparage or impugn the reputation of any party.”

Pregnant Workers Fairness Act Explained by New Jersey Supreme Court

April 30, 2021 | by Jonathan I. Nirenberg

Last month, the New Jersey Supreme Court addressed the New Jersey Pregnant Workers Fairness Act (“PWFA”) for the first time. The PWFA is an amendment to the New Jersey Law Against Discrimination (“LAD”) that prohibits pregnancy discrimination.

Kathleen Delanoy is a police officer. She filed a lawsuit in which she alleged her employer, the Township of Ocean, discriminated against her because she was pregnant. However, the trial court dismissed her case on a motion for summary judgment.

As discussed in my previous article, Appellate Court Recognizes Employers Must Accommodate Pregnancy, the Appellate Division subsequently reversed that ruling. Ocean Township asked the New Jersey Supreme Court to review that decision.

Supreme Court Expands Religious Employers’ First Amendment Defense to Discrimination Claims

July 27, 2020 | by Jonathan I. Nirenberg

Earlier this month, the United States Supreme Court ruled that the First Amendment’s freedom of religion clause bars employees who work for religious institutions from bringing any employment discrimination claims against their employers if their jobs include performing “vital religious duties.”

The decision stems from lawsuits filed by two elementary school teachers, Agnes Morrissey-Berru and Kristen Biel. Ms. Morrissey-Berru worked for a Catholic school, Our Lady of Guadalupe School. Ms. Biel worked for another Catholic school, the St. James School. Although neither Ms. Morrissey-Berru nor Ms. Biel had the title of minister, they each taught all subjects, including religion, and were required to develop and promote the Catholic faith as part of their jobs.

Our Lady of Guadalupe reduced Ms. Morrissey-Berru from full-time to part-time, and subsequently decided not to renew her employment contract. Ms. Morrissey-Berru filed a lawsuit in which she claimed the school did so because of her age, in violation of the Age Discrimination in Employment Act (“ADEA”). The school claims it made those decisions because Ms. Morrissey-Berru had difficulty administering a new reading and writing program that it implemented.

Discrimination and Retaliation Claims During the COVID-19 Pandemic

April 6, 2020 | by Jonathan I. Nirenberg

Our New Jersey employment lawyers understand that times are extremely difficult for pretty much everyone right now. But, fortunately, you still have significant rights in the workplace.

Being sheltered in place or quarantined and having to engage in social distancing have become the new normal. The economy has taken an enormous hit, and things that used to be simple like buying groceries and finding supplies like toilet paper and paper towels suddenly have become challenging.

Your Employment Law Rights Are Not on Hold

New Jersey Law Prohibits Discrimination for Prescribed Off-Duty Medical Marijuana Use

March 10, 2020 | by Jonathan I. Nirenberg

Today, in Wild v. Carriage Funeral Holdings, Inc., the New Jersey Supreme Court ruled that employers cannot discriminate against employees for using prescribed medical marijuana while off-duty. Rather, doing so constitutes disability discrimination in violation of the New Jersey Law Against Discrimination (“LAD”).

The New Jersey Supreme Court affirms a March 17, 2019 Appellate Division opinion. The Supreme Court’s opinion makes it clear that the Compassionate Use Act does not require employers to accommodate the use of medical marijuana in the workplace. It also noted that the Compassionate Use Act does not permit anyone to operate or control any “vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of marijuana.” But the Supreme Court’s opinion holds that the LAD prohibits employers from discriminating against employees for using prescribed medical marijuana outside of work.

For more information about the case, please see my previous article: New Jersey Employers Can’t Discriminate for Medical Marijuana Use Outside of Work.

Trial Lawyer Has Apparent Authority to Settle Discrimination Case

June 5, 2019 | by Jonathan I. Nirenberg

A recent decision by New Jersey’s Appellate Division recognizes that, under the doctrine of apparent authority, a company’s attorney can bind it to a settlement whether or not the employer actually authorized him to settle the case.

Jesus Gonzalez filed an employment discrimination lawsuit against his former employer, Electronic Integration Services, LLC, also known as Panurgy OEM. More specifically, he claimed Panurgy fired him in violation of the New Jersey Law Against Discrimination (“LAD”), the Family & Medical Leave Act (“FLMA”) and the New Jersey Family Leave Act (“NJFLA”).

Shortly before a trial, Panurgy’s lawyer conveyed an offer to settle the case for $175,000. Mr. Gonzalez accepted the offer, and the judge placed the terms of the settlement on the record.

Are Telecommuters Protected by the New Jersey Law Against Discrimination?

May 22, 2018 | by Jonathan I. Nirenberg

The New Jersey Law Against Discrimination (“LAD”) prohibits discrimination in the workplace. But does it protect employees who work for New Jersey companies remotely, such as telecommuters? A recent ruling by New Jersey’s Appellate Division makes it clear that an employee does not have to physically live or work in New Jersey to be protected by the LAD.

Susan Trevejo worked for Legal Cost Control (“LCC”) for 12 years. After LCC fired her, Ms. Trevejo sued for age discrimination in violation of the LAD. LCC is a New Jersey company which has its headquarters in Haddonfield, New Jersey. However, Ms. Trevejo is a resident of Massachusetts who has never lived in New Jersey or worked in LCC’s office in New Jersey aside from a few meetings she attended earlier in her tenure with the company. Rather, she worked remotely from her home.

Early into the case, LCC filed a motion for summary judgment, claiming that the LAD does not apply to Ms. Trevejo because she is not an “inhabitant” of New Jersey. The trial court denied LCC’s motion, and instead permitted the parties to engage in some limited discovery (the process of exchanging information in a lawsuit) about Ms. Trevejo’s right to bring a claim under the LAD.

New Jersey Law Against Discrimination Protects Breastfeeding

January 18, 2018 | by Jonathan I. Nirenberg

Last week, the New Jersey Law Against Discrimination (“LAD”) was expanded to prohibit discrimination and harassment on the basis of breastfeeding and to require employers to provide certain reasonable accommodations for nursing.

The LAD is New Jersey’s anti-discrimination law. It prohibits discrimination and harassment based on age, color, disability, gender (sex), marital status, national origin, pregnancy, race, religion, sexual orientation, veteran or military status.

On January 8, 2018, Governor Christie signed into law an amendment to the LAD to include breastfeeding as a new legally-protected category. As a result, now employers, unions, landlords, real estate agents, banks, and places of public accommodations, among others, cannot discriminate against women because they are breastfeeding.

New Jersey Law Against Discrimination Provides Additional Protection to Military Reserves

August 17, 2017 | by Jonathan I. Nirenberg

On August 8, 2017, Governor Chris Christie signed into law an amendment to the New Jersey law Against Discrimination (“LAD”) that provides additional protection to members of the United States military. The amendment went into effect immediately.

Prior to the amendment, the LAD included “liability for service in the Armed Forces of the United States” as a legally protected category, but only in the context of employment and entering into contracts. The LAD defines “liability for service in the Armed Forces” to mean being subject to being: (1) ordered into “active service in the Armed Forces of the United States by reason of membership in the National Guard, naval militia or a reserve component of the Armed Forces of the United States,” or (2) “inducted into such armed forces through a system of national selective service.”

Among other changes, under the new amendment the LAD now prohibits discrimination to this category of members of the Armed Services in the context of housing, making loans and providing access to places of public accommodation. Places of public accommodations are places that are generally accessible to members of the public such as restaurants, hotels, stores, parks, hospitals, theaters, colleges and universities.