Retaliation

November 30, 2023

How “Quiet Firing” Might Violate New Jersey Employment Laws

The term “quiet quitting” gained traction on social media in 2022, and debates over whether or not it is a real phenomenon have continued throughout 2023. It generally involves employees who are unwilling to do more than what their job description specifically requires. A related concept, “quiet firing,” has also emerged. It involves an employer that, rather than directly firing an employee, takes adverse actions that drive the employee to the point of resigning. While “quiet firing” might be a new term, it is not a new concept in New Jersey employment law. Constructive discharge, in which an employer makes working conditions so intolerable that an employee feels they have no choice but to quit, may violate laws against wrongful termination, discrimination, harassment, and retaliation.

What Is “Quiet Firing”?

The Harvard Business Review (HBR) defines “quiet firing” as the practice of “intentionally creat[ing] a hostile work environment that encourages people to leave voluntarily.” This arguably saves the employer money on severance and unemployment benefits.

This is hardly new to the workplace. Individual managers and supervisors have long used these kinds of tactics to drive out employees for various reasons. The HBR, however, suggests that some employers are now being more systematic about it. It notes studies from the past few years that show growing numbers of employees who leave their jobs for reasons like “feeling disrespected.”
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October 13, 2023

New Jersey Whistleblower Lawsuit Alleges Wrongful Termination for Reporting “Partying” at Conference

by Resnick Law Group, P.C.

Employees who suspect wrongdoing by their employers might not report their concerns if they fear losing their jobs. New Jersey employment laws seek to protect these employees, commonly known as whistleblowers, by prohibiting retaliation by their employers. Laws at the state and federal level allow employees to file civil suits for monetary damages and other forms of relief, often including reinstatement, if their employers take adverse action against them because of whistleblowing activities. A lawsuit pending in a New Jersey federal court alleges that an employer unlawfully retaliated against the plaintiff for reporting concerns about an executive’s conduct at an industry conference.

The New Jersey Conscientious Employee Protection Act (CEPA) protects whistleblowers in various situations, including reporting suspected illegal activity to a supervisor. The New Jersey Law Against Discrimination (NJLAD) bars employers from “tak[ing] reprisals” against employees who report or oppose unlawful discrimination or harassment. These laws protect a wide range of conduct aimed at opposing alleged violations of criminal and employment statutes.

According to the complaint, the defendant is a “global trading firm” that works with cryptocurrency. It has headquarters in Jersey City, London, and Tokyo. The plaintiff states that he worked for the defendant in Jersey City as its “Global Head of Options Trading – Americas.” He alleges that he “was a valued, well-respected employee and contributing team member,” and that he contributed to millions of dollars in profits for the defendant.
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October 6, 2023

EEOC Issues Updated Guidance for Visual Disabilities in New Jersey Workplaces

by Resnick Law Group, P.C.

The Americans with Disabilities Act (ADA) of 1990 protects employees and job seekers throughout the country from discrimination, harassment, and other acts because of a disability. It also requires employers to make reasonable accommodations that can allow employees with disabilities to perform their job duties. New Jersey employment law also protects against disability discrimination and mandates reasonable accommodations. In July 2023, the Equal Employment Opportunity Commission (EEOC) issued an updated guidance document regarding visual disabilities under the ADA. In addition to reasonable accommodations, the document addresses what employers may and may not ask employees and job applicants with regard to visual impairments.

Visual Disabilities Under the ADA

The ADA’s definition of “disability” involves conditions that “substantially limit[] one or more major life activities,” as well as a record or perception of having such a condition. The definition of “major life activities” includes “seeing.”

The EEOC takes a broad view of whether a visual impairment meets the “substantially limits” standard. If someone’s vision is “substantially limited when compared to the vision of most people in the general population,” it will consider that person to have a disability as defined by the ADA. This does not, however, include people who are able to function with “ordinary eyeglasses or contact lenses.”
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August 31, 2023

NLRB Obtains Temporary Injunction in New Jersey Wrongful Termination Case

by Resnick Law Group, P.C.

Laws that protect employees’ rights can only be effective if workers feel confident that they can assert their rights without suffering even worse consequences from their employers. A worker who believes their employer has violated the law will not be likely to make a complaint if their employer can demote or fire them in retaliation and with impunity. Workers will hesitate to exercise their rights to engage in labor organizing if nothing is stopping their employers from retaliating against them. Federal and New Jersey employment laws include provisions that bar employers from discriminating or retaliating against workers who engage in protected activities. A New Jersey federal court recently granted a temporary injunction in a lawsuit brought by the National Labor Relations Board (NLRB) on behalf of several workers who alleged wrongful termination. The court ordered their employer to reinstate them.

The National Labor Relations Act (NLRA) protects workers’ rights to engage in activities related to organizing for the purpose of collective bargaining with their employers. Section 8(a)(1) of the statute prohibits employers from interfering with workers who are engaging in protected activities. Section 8(a)(3) bars discrimination against workers who have joined unions or participated in organizing. The NLRB has authority under § 10(j) of the NLRA to file lawsuits seeking injunctions to prevent or remedy violations of workers’ rights.

The defendant in the NLRB lawsuit operates a commercial cleaning business. According to the court’s ruling, two employees engaged in acts protected by the NLRA at various times in early 2022. This included meetings with representatives of the defendant at which they spoke on behalf of other employees regarding “employee grievances, such as mistreatment from supervisors and threats of being fired.” The two employees reportedly met with union organizers and representatives, followed by discussions with other employees about possibly joining the union. Within a few days, they heard from co-workers that the defendant “was looking for an excuse to fire [them].”
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May 18, 2023

U.S. Supreme Court to Hear Case Involving Whistleblower Protection Law

by Resnick Law Group, P.C.

People who believe that their employers have engaged in illegal or unethical behavior should be able to come forward without fear of losing their jobs or facing other forms of retaliation. New Jersey employment law offers broad protections for whistleblowers who report alleged wrongdoing by their employers and engage in other protected activities. At the federal level, numerous statutes include whistleblower protections in specific industries or for specific types of claims. The Sarbanes-Oxley Act of 2002 (SOX), for example, protects employees of publicly-traded corporations who report alleged fraud or violations of securities laws. The U.S. Supreme Court recently agreed to hear a case involving a dispute over who has the burden of proving “retaliatory intent” in SOX whistleblower cases.

New Jersey’s Conscientious Employee Protection Act (CEPA) prohibits employers from “tak[ing] any retaliatory action” against an employee for numerous protected activities. These may include the following:
– Reporting or threatening to report activities that the employee reasonably believes are illegal, unethical, or fraudulent;
– Cooperating with investigations or hearings regarding suspected illegal acts by the employer;
– Testifying in connection with such investigations;
– Objecting to activities or policies that the employee believes are unlawful, fraudulent, or against public policy; and
– Reporting an alleged violation of CEPA.

While CEPA applies to all employers in New Jersey, the whistleblower protection provisions in SOX only apply to employers that are also publicly-traded corporations governed by the Securities Exchange Act of 1934 and Securities and Exchange Commission (SEC) regulations. The statute’s list of protected activities is similar to CEPA’s list, except that it only applies to reports and investigations related to certain types of fraud, including wire fraud, bank fraud, and securities fraud, as well as violations of SEC regulations and other securities laws.
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April 21, 2023

Congress Amends, Strengthens Whistleblower Protection Law

by Resnick Law Group, P.C.

Our legal system encourages people who have information about wrongdoing by their employers to come forward and report what they know. This may involve violations of employment statutes, fraud or other criminal acts, or other forms of misconduct. Some statutes provide rewards for employees, known as “whistleblowers,” who provide information that leads to successful civil or criminal enforcement actions. Both federal and New Jersey employment laws protect whistleblowers from retaliation by their employers. The Anti-Money Laundering Act (AMLA), which the U.S. Congress enacted in 2020, includes whistleblower protections. At the end of 2022, Congress enacted the Anti-Money Laundering Whistleblower Improvement Act (AMLWIA). This law protects a wider range of individuals who report alleged unlawful activity. It also increases financial incentives for people to come forward.

In New Jersey, the Conscientious Employee Protection Act (CEPA) bars retaliation by employers against employees who engage in various whistleblowing activities. This might include:
– Reporting, or threatening to report, an activity that the employee reasonably believes is unlawful to a supervisor or regulatory agency;
– Participating in a public investigation or hearing that relates to alleged unlawful activity by the employer; or
– Objecting to or refusing to participate in an activity that the employee believes is illegal, fraudulent, or against public policy.

An employee in New Jersey who believes that their employer has retaliated against them in violation of CEPA has one year to file a lawsuit. Damages may include lost wages and benefits, reinstatement with full benefits and seniority, injunctive relief, and attorney’s fees.
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January 27, 2023

Choosing the Right Court for a New Jersey Employment Discrimination Lawsuit

by Resnick Law Group, P.C.

Federal and state laws limit where someone may file a lawsuit. The court must have the legal authority to hear the case and issue rulings affecting the defendant, known as jurisdiction. The location of the court, known as the venue, must have some connection to the events of the case or either of the parties. In many lawsuits, determining jurisdiction and venue is easy, such as when both parties are located in the same vicinity. New Jersey employment laws apply to employees, employers, and events in New Jersey. It can be more complicated when the events or the parties’ locations cross county or state lines. A recent decision by the Third Circuit Court of Appeals, for example, addressed an employment discrimination and retaliation lawsuit that involved events in both New Jersey and Connecticut.

The New Jersey Law Against Discrimination (NJLAD) bars New Jersey employers from discriminating against employees and job seekers on the basis of a wide range of factors. These include race, religion, sex, disability, and sexual orientation. The statute also prohibits retaliation by employers against employees who report unlawful acts, assist in investigations, or engage in other protected activities. At the federal level, Title VII of the Civil Rights Act of 1964 has similar provisions, although its protections against workplace discrimination are not as broad.

Both of these statutes provide guidance on where employees may file a lawsuit. Title VII states that an individual may file a lawsuit in U.S. district court in the district where:
– The alleged violation occurred;
– Relevant employment records are located;
– The individual would have worked had the unlawful act not occurred; or
– The employer’s main office is located.
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December 16, 2022

New Jersey Lawsuit Alleges an Office-Wide Pattern of Sexual Harassment

by Resnick Law Group, P.C.

Sexual harassment is a form of sex discrimination under New Jersey employment law. It can range from unwelcome workplace behavior, such as sexually-charged jokes or comments, to outright sexual advances or worse. Federal and state laws in New Jersey prohibit this type of conduct, as well as retaliation against workers who report alleged unlawful activity. They also allow employees to recover damages from their employers. In November 2022, a court in Camden County awarded $7 million in damages to a group of plaintiffs who alleged widespread sexual harassment in the dental office where they worked.

Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD) prohibit employment discrimination on the basis of sex. This includes sexual harassment. Federal and state courts have identified two main types of sexual harassment:
– Quid pro quo sexual harassment occurs when an employee or job applicant must submit to sexual demands in order to obtain an employment-related benefit or avoid a penalty. A hiring manager, for example, might tell a job applicant that the job is theirs, but only if they agree to sexual activity.
– A hostile work environment occurs when a workplace features recurring or severe sexual conduct. The harassment must be serious enough that it interferes with someone’s ability to do their job. It may come from anyone in the workplace, such as a supervisor, coworker, or customer.

Eight women filed suit against their employer, a dental practice with offices in several areas of New Jersey, in 2016. They alleged multiple violations of the NJLAD. The defendants include multiple business entities and individual owners, managers, and supervisors. In an amended complaint filed in 2020, the plaintiffs describe the dental offices as a “sexual harassment playground” for several managers. They allege an ongoing pattern of “unwelcome sexual advances and flirting,” “unwanted touching and groping,” and requirements that “certain female employees…submit to sexual advances and flirting as a condition of employment.”
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September 30, 2022

Appellate Court Ruling Could Affect New Jersey Whistleblowers’ Rights

by Resnick Law Group, P.C.

Government regulators enforce a wide variety of laws, from statutes prohibiting employment discrimination to those that deal with securities fraud and other fraudulent activities. They rely on information provided by business insiders, but many employees might hesitate to report potential legal violations by their employers for fear of losing their jobs. New Jersey’s Conscientious Employee Protection Act (CEPA) is one of many whistleblower protection statutes that prohibit retaliation by employers against employees who report their concerns. Proving that an adverse employment action constituted unlawful retaliation can be tricky, and different statutes have different requirements. A federal appellate court recently ruled on a whistleblower claim under the Sarbanes-Oxley Act (SOX). It found that this statute has a more difficult standard of proof than CEPA. If you fear retaliation or discrimination for reporting legal violations in the workplace, reach out to a New Jersey employment lawyer to review your options.

CEPA provides rather broad protection for whistleblowers in New Jersey. It applies to employees who:
– Report alleged violations of a statute or regulation, either internally or to a regulatory agency;
– Provide information or testimony as part of an ongoing investigation into a possible violation of the law; or
– Object to or decline to participate in an activity that they reasonably believe would violate the law or go against public policy.
The statute’s definition of a “retaliatory action” includes termination, suspension, demotion, and other adverse actions.

An employee claiming unlawful retaliation under CEPA must show a causal connection between their whistleblowing activities and the adverse action against them. New Jersey court rulings have held that a plaintiff can establish this element by producing enough evidence to allow a judge or jury “to infer that discrimination was more likely than not a motivating or determinative cause” of the employer’s adverse action. The recent appellate court decision regarding SOX found a much stricter burden of proof for plaintiffs.
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August 8, 2022

New Jersey Senate Bill Would Expand Protections for Employees in Sexual Harassment Cases

by Resnick Law Group, P.C.

Employers may include provisions in employment contracts or settlement agreements that limit employees’ ability to discuss issues like sexual harassment with others. When a settlement agreement contains this kind of provision, it may mean that the public cannot learn about the employee’s experience in the workplace. Other employees could be at risk of the same kind of experience if the employer took no action against the individual — or individuals — whose conduct led to the complaint and settlement. The New Jersey Legislature passed a law in 2019 that prohibits the use of non-disclosure agreements (NDAs) in connection with claims involving employment discrimination, harassment, or retaliation. A bill now pending in the New Jersey Senate would also prohibit non-disparagement clauses or agreements in those situations. If you have concerns about non-disclosure agreements involving a workplace matter, reach out to a New Jersey employment lawyer to get legal advice.

Businesses often use NDAs as a way to protect trade secrets and other proprietary information. An employment contract might include an NDA that protects information that could be of great interest or value to the employer’s competitors. Employers have also used NDAs to protect other kinds of information besides trade secrets, such as information that could be embarrassing.

News reports have identified numerous cases in which sexual harassment settlements included NDAs. Under this kind of NDA, one of the conditions for receiving a settlement payment is a promise by the complainant never to disclose the circumstances of the sexual harassment claims. The effect of this kind of NDA has been to keep important safety information away from the public. New Jersey passed a law in 2019 barring NDAs in employment contracts and settlement agreements as they might pertain to any “claim of discrimination, retaliation, or harassment.”
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