wrongful termination

Teacher’s Objection to Inadequate Discipline of Student for Threatening Violence Can be Protected by CEPA

November 12, 2024 | by Jonathan I. Nirenberg

In a recent unpublished opinion, New Jersey’s Appellate Division found a teacher’s objection that his school did not sufficiently discipline a student for threatening to shoot another student could be protected from retaliation by the Conscientious Employee Protection Act (“CEPA”).

CEPA is a broad New Jersey whistleblower law that prohibits employers from retaliating against an employee for, among other things, objecting to an activity or practice of the employer that the employee reasonably believes violates a law, a rule promulgated pursuant to law, or is incompatible with a clear mandate of public policy concerning public health, safety or welfare or protection of the environment.

Phillip Eisenstein is a physical education teacher for the New York Avenue School in Atlantic City. He witnessed a student, K.D., bullying other students. After Mr. Eisenstein intervened, K.D. threatened to get his uncle’s gun and come back the next day to shoot one of the other students. Mr. Eisenstein reported this to the school’s principal, who said he would handle it.

Court Reinstates Employee’s Retaliation Lawsuit, Finding Employer Could Have Identified Her as Anonymous Whistleblower

October 23, 2023 | by Jonathan I. Nirenberg

A new decision from New Jersey’s Appellate Division recognizes that an employer can be liable for retaliating against an employee who filed an anonymous whistleblower complaint if the evidence supports the inference that it could have realized she was the one who filed the complaint.

For 14 years, Carol Smith worked for Konica Minolta Business Solutions (“KMBS”), primarily as a sales representative. In 2018, Ms. Smith reported to her supervisors that over a million dollars of equipment had been shipped to a warehouse, and KMBS had recorded it as installed and paid employees a commission for selling that equipment, but the equipment actually remained in the warehouse and KMBS was improperly using it as collateral for bank loans.

Ms. Smith’s supervisors failed to address her complaint, and instead began harassing her. Accordingly, she eventually reported the fraudulent activity anonymously, through KMBS’ employee whistleblower hotline.

Termination Three Weeks After Medical Leave Supports Disability Discrimination Claim

May 1, 2019 | by Jonathan I. Nirenberg

A recent decision by New Jersey’s Appellate Division demonstrates that under the right circumstances an employee can prove disability discrimination from the fact that her employer fired her shortly after she had surgery.

Ada Caballero worked for Cablevision Systems Corporation for 15 years. In 2013, she was divorced. A few months after her divorce was finalized, Ms. Caballero submitted a copy of the divorce judgment to the company’s human resources department. However, Cablevision did not remove her ex-husband from its health insurance plan.

On Ms. Caballero’s 2014 performance evaluation, Cablevision gave her a rating of “strong performance.”

Close Enough? Who is “Similarly Situated” Under New Jersey Law Against Discrimination?

April 17, 2019 | by Jonathan I. Nirenberg

A recent decision by the Third Circuit Court of Appeals helps clarify who is a “similarly situated” employee in discrimination cases under the New Jersey Law Against Discrimination (“LAD”). This is important since one way to prove discrimination is by showing the employer treated other similarly situated employees more favorably than the employee who is claiming he or she was the victim of discrimination.

Santos Andujar worked for General Nutrition Corporation (“GNC”) as a store manager for 13 years. After failing the company’s Critical Point Audits four years in a row, he received a failing score through the company’s Performance Evaluation Process (“PEP”). On the day Mr. Andujar received his failing PEP score, GNC placed him on a “Red Store Action Plan” which gave him days to improve his job performance. Approximately one month later, the company fired him for failing to meet the Action Plan. GNC replaced Mr. Andujar, who was 57 years old, with someone in his twenties. Mr. Andujar then filed a lawsuit alleging that GNC had engaged in age discrimination in violation of the LAD.

The case went to trial. GNC argued that it fired Mr. Andujar because of his poor performance and not because of his age. However, Mr. Andujar presented evidence that five other store managers between 25 and 34 years old had failing PEP score, but GNC did not put any of them on an Action Plan, let alone fire them.

Backlash Against Non-Disparagement Clauses

June 15, 2016 | by Jonathan I. Nirenberg

It has become extremely common, if not standard practice, for employers to include non-disparagement clauses in settlement agreements and severance packages they offer to their former employees. These provisions prohibit employees from saying anything negative about their former employers. They are extremely broad, since they prohibit true but negative statements and opinions. In addition, they typically prohibit employees from saying anything negative not just about the company itself, but also about its current and previous owners, directors, officers, employees, subsidiaries and parent companies.

The unfortunate reality is that many employees who sign severance agreements either have not read the entire agreement or do not understand or appreciate many of its provisions. Even individuals who realize they are being asked not to say anything negative about their former employers generally have no choice but to agree if they want the severance pay and other benefits that have been offered to them. Of course, for someone who has recently lost his or her job it can be difficult to reject a severance offer over something like a non-disparagement clause. As a result, employees regularly agree not to disparage their former employers.

A recent article in the New York Time, Laid-Off Americans, Required to Zip Lips on Way Out, Grow Bolder, indicates that there is a growing backlash against non-disparagement clauses. For example, it indicates that several prominent Democrat and Republican members of Congress have questioned the widespread use and misuse of non-disparagement agreements.