Retaliation

December 6, 2019

New Jersey State Employee Awarded $987,000 in Race Discrimination Lawsuit

Workplace harassment on the basis of a protected category is considered unlawful employment discrimination under New Jersey law and throughout the country. Most people are familiar with how sexual harassment violates New Jersey employment discrimination laws, but it also applies to harassment based on race, religion, and other factors. The New Jersey Law Against Discrimination (NJLAD), N.J. Rev. Stat. § 10:5-1 et seq., prohibits discrimination and harassment on numerous bases, as well as retaliation for opposing or reporting alleged unlawful practices. The Conscientious Employee Protection Act (CEPA), id. at § 34:19-1 et seq., protects the rights of whistleblowers who report suspected unlawful activity by their employers. A state employee filed suit in 2013 for race harassment and retaliation under the NJLAD and CEPA. In April 2019, a jury in Mercer County, New Jersey awarded him over $987,000 in damages.

The NJLAD prohibits employment discrimination on the basis of race and multiple other factors. See id. at § 10:5-12(a). This includes a wide range of adverse employment actions. Firing or refusing to hire a person because of their race is perhaps the most obvious sort of discriminatory act in violation of the NJLAD, but workplace discrimination takes far more forms than that. Pervasive and unwelcome actions that create a hostile work environment based on race also support an NJLAD claim.

Employers who “take reprisals against any person” who either opposes or reports alleged violations of the NJLAD commit a separate violation of the NJLAD, commonly known as retaliation. Id. at § 10:5-12(d). CEPA provides similar protections for employees who “[d]isclose[], or threaten[] to disclose” alleged legal violations by an employer, either to a supervisor or a government body. Id. at § 34:19-3(a). This may include reporting NJLAD violations.

November 15, 2019

Appellate Division Affirms Verdict of Almost $1 Million in New Jersey Retaliation Case

by Resnick Law Group, P.C.

In addition to prohibiting discrimination on the basis of factors like race, sex, and religion, most anti-discrimination statutes also prohibit employers from retaliating against employees who report alleged discrimination, who participate in an investigation of alleged unlawful acts, or who engage in other legally protected activities. In 2016, a jury in Bergen County, New Jersey found in favor of a former bank vice president who alleged that she was fired for reporting her concerns about gender discrimination. It found that the bank had retaliated against the plaintiff in violation of the New Jersey Law Against Discrimination (NJLAD) and awarded her $935,000 in damages. In June 2019, the New Jersey Superior Court, Appellate Division affirmed the verdict and award.

Discrimination “on the basis of” a protected category generally refers to discrimination that is motivated by an individual’s membership, or perceived membership, in a protected group. Statutes like the NJLAD also protect employees against discriminatory or retaliatory actions based on their good-faith efforts to enforce these rights. A prohibition on discrimination is not much help if an employer can still fire someone because they made an allegation of discrimination. The NJLAD therefore prohibits employers from “tak[ing] reprisals” against employees who “oppose[] any practices or acts forbidden under this act.” N.J. Rev. Stat. § 10:5-12(d).

The Equal Employment Opportunity Commission (EEOC) reports that retaliation is the most common complaint it receives. In fiscal year 2018, the agency received 39,469 complaints alleging retaliation under at least one of the statutes it enforces. This accounted for 51.6 percent of all complaints received that year. More than 30,000 complaints, or 40 percent, were specifically for retaliation under Title VII of the Civil Rights Act of 1964.

December 28, 2018

Lawsuit Alleges Failure to Pay Overtime in Violation of FLSA and New Jersey Wage Laws

by Resnick Law Group, P.C.

New Jersey employees are entitled by law to receive overtime compensation, at a rate equal to one-and-a-half times their usual wage, for time worked in excess of forty hours in a week. Although state and federal law identify various groups of employees who are exempt from this requirement, nonexempt employees may recover damages in court if their employer fails to pay them at the overtime rate. Employers are also prohibited under federal law from retaliating against employees who report alleged wage violations. A lawsuit filed last month in a New Jersey federal court alleges that a company failed to pay overtime to the plaintiff, and then fired him in retaliation for reporting the matter to the human resources department. Buchspies v. Pfizer, Inc., No. 2:18-cv-16083, complaint (D.N.J., Nov. 13, 2018). The complaint asserts causes of action under both federal and state law.

The federal Fair Labor Standards Act (FLSA) requires employers to pay nonexempt workers “at a rate not less than one and one-half times the regular rate” for any amount of time over forty hours in a week. 29 U.S.C. § 207(a)(1). The statute provides a lengthy list of exempt employees, such as “bona fide executive, administrative, or professional” employees, certain agricultural workers, employees of small newspapers, certain individuals informally employed as domestic caregivers, and border patrol agents. Id. at §§ 213(a)(1), (6), (8), (15), (18). New Jersey wage law requires overtime pay at the same rate. It includes an exemption for “executive, administrative, or professional” employees, as well as other groups. N.J. Rev. Stat. § 34:11-56a4. The FLSA also states that employers may not take adverse action against employees who make a complaint alleging violations of the statute. 29 U.S.C. § 215(a)(3).

The plaintiff in Buchspies, according to his complaint, began working for the defendant in 2013 “as a chemical analyst in a pharmaceutical laboratory.” Buchspies, complaint at 2. He claims that the defendant’s payroll system identified him as an “overtime eligible employee.” Id. He states that he received a base pay rate of $34.00 per hour. Although he allegedly worked more than forty hours during some weeks, he claims that the defendant only paid him at the rate of $34/hour, instead of the $51/hour that would be payable for overtime hours under the FLSA and state law. The plaintiff states that he complained about the overtime issue to human resources in May 2018, and alleges that he was fired two weeks later, with no reason given.
Continue reading

December 7, 2018

Jury Awards $6 Million to Former Employee in National Origin, Age Discrimination Case

by Resnick Law Group, P.C.

A federal jury recently found in favor of a former employee claiming national origin and age discrimination under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and state law. Middlebrooks v. Teva Pharmaceuticals USA, Inc., et al, No. 2:17-cv-00412, 2nd am. complaint (E.D. Pa., Apr. 25, 2017). The case is notable in part because the plaintiff alleged that the defendants, an Israeli pharmaceutical company and its American subsidiary, discriminated against him because of his “American origin.” Id. at 1. If you have questions of this nature, contact a New Jersey employment discrimination attorney.

In early 2018, the court allowed the plaintiff’s claims against the Israeli parent company to proceed under a theory of joint-employer liability. The case went to trial against both defendants in November 2018. The jury awarded the plaintiff over $6 million in damages.

Title VII prohibits discrimination on the basis of national origin, among other factors, and retaliation for reporting alleged unlawful acts. 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). The ADEA prohibits discrimination on the basis of age against individuals who are at least forty years old. 29 U.S.C. §§ 623(a)(1), 631(a). Unlawful discrimination may include harassment on the basis of a protected category, particularly when it creates a hostile work environment that prevents an individual from performing their job duties effectively.

August 20, 2018

Third Circuit Rules on Extent of Whistleblower Protection Under Sarbanes-Oxley

by Resnick Law Group, P.C.

The Sarbanes–Oxley Act of 2002 (SOX) regulates a wide range of activities by publicly traded companies. Section 806 of SOX, 18 U.S.C. § 1514A, protects whistleblowers against retaliation for reporting suspected legal violations. It allows employees to file a complaint with the U.S. Department of Labor (DOL), potentially followed by a lawsuit in federal district court. The DOL’s Administrative Review Board (ARB) has held that a whistleblower need only have a “reasonable belief” that a legal violation has occurred to engage in “protected activity” under § 806 of SOX. Sylvester v. Parexel Int’l, ARB Case No. 07-123 (ARB, May 25, 2011). The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, recently ruled on the question of “reasonable belief” in an SOX whistleblower claim, which could have an impact on New Jersey whistleblowers. Westawski v. Merck & Co. Inc., No. 16-4075, slip op. (3d Cir., Jun. 27, 2018).The whistleblower protection provisions of § 806 apply to companies that have securities registered under the Securities Exchange Act of 1934, or that are required to file reports under that statute. Employees who report suspected fraud, wire fraud, bank fraud, or securities fraud, or who cooperate in an investigation of one of these alleged offenses, are entitled to protection. 18 U.S.C. § 1514A(a), citing 18 U.S.C. §§ 1341, 1343, 1344, and 1348. An employee must file a complaint with the DOL. If the DOL has not issued a ruling within 180 days, the employee can usually file a complaint in federal court. Available damages include reinstatement, back pay, court costs, and attorney’s fees.

The statute requires that the whistleblower “reasonably believes” that their employer has violated one or more of the enumerated federal fraud statutes. Id. at § 1514A(a)(1). The ARB has interpreted this requirement as having two parts: (1) the employee has “a subjective belief that the complained-of conduct constitutes a violation of relevant law”; and (2) “the belief is objectively reasonable.” Sylvester at 14. As long as the employee’s belief is both subjectively and objectively reasonable, the ARB held, their actions are protected even if no legal violations actually occurred.
Continue reading

June 29, 2018

Lawsuit Alleges Wrongful Termination for Making a Rude Gesture Toward a Government Official

by Resnick Law Group, P.C.

The U.S. Constitution limits the government’s ability to infringe on a range of rights, including the First Amendment right to free speech. In the context of New Jersey employment matters, this usually places far more limits on public employers than private employers. As a general rule, a private employer does not infringe on an employee’s freedom of speech if they discipline or fire that employee because of statements they have made. Since public employers are part of the government, they have less leeway with regard to employee speech. A lawsuit filed earlier this year, however, alleges that a private employer violated the plaintiff’s constitutional rights by firing her because of her speech. Briskman v. Akima, LLC, No. 2018-5335, complaint (Va. Cir. Ct., Fairfax Cty., Apr. 4, 2018). The plaintiff claims that the defendant fired her “out of fear of unlawful retaliation by the government for constitutionally protected speech,” id. at 8, and that this makes her termination a violation of her First Amendment rights.

Caselaw has largely established broad protections for the free speech rights of public employees with regard to their employment. According to the U.S. Supreme Court, a public employee who speaks out about “issues of public importance” cannot be subject to termination by their employer, unless their statements were “knowingly or recklessly” false. Pickering v. Board of Education, 391 U.S. 563, 574 (1968). This does not apply, however, when the employee is speaking in their official capacity as a government employee. Garcetti v. Ceballos, 547 U.S. 410 (2006).

Private employers have fewer restrictions with regard to disciplining employees, including terminating them, for statements they have made. This often applies even when the statement or statements at issue involved matters of public concern that were unrelated to the employee’s position with the employer. Some exceptions apply, such as when the speech involves activities protected by the National Labor Relations Act, 29 U.S.C. § 157, or when a state or local anti-discrimination law includes protections for “political activities,” N.Y. Lab. L. § 201-D. The Third Circuit Court of Appeals has ruled that termination for an employee’s political activities, or their refusal to participate in political activities, could violate public policy. Novosel v. Nationwide Ins. Co., 721 F. 2d 894 (3rd Cir. 1983).

June 26, 2018

New Jersey Bill Would Limit Enforceability of Noncompete Clauses and Other Restrictive Covenants in Employment Contracts

by Resnick Law Group, P.C.

Businesses have an obligation to protect their assets and interests, but not in ways that damage their employees. New Jersey employers can protect their interests with covenants not to compete, also known as noncompete clauses, which limit employees’ ability to work for, or become, a competitor after their employment ends. A bill pending in the New Jersey Legislature would significantly restrict the enforceability of noncompete clauses. An Assembly committee reported favorably on A1769 in May 2018, while the Senate counterpart, S635, is still awaiting a committee hearing.

In order for a noncompete clause to be enforceable under current New Jersey employment law, it must be reasonably limited in both time and geographic scope. A noncompete clause that purported to prohibit a former employee from ever working for a competing company anywhere in New Jersey would be unenforceable on its face because it is not even close to being reasonably limited to the protection of the employer’s interests at the moment the employee ceases to be employed. If the noncompete clause only restricted employment with a competitor within, for example, five miles of the employer’s location for six months, it would probably be enforceable. Even then, however, noncompete clauses often require workers to relocate or change fields solely to avoid liability to their former employer.

A1769 and S635 state that noncompete clauses “driv[e] skilled workers to other jurisdictions” and “requir[e] businesses to solicit skilled workers from out-of-State.” The Assembly Labor Committee made some changes to the bill, but most provisions remain the same as in S635. The bill establishes a 10-part test that a noncompete clause would have to meet in order to be enforceable:
Continue reading

May 15, 2018

New Jersey Whistleblower Lawsuit Alleges Retaliation by Auto Maker

by Resnick Law Group, P.C.

Employees who report or object to practices that they believe to be illegal or contrary to public policy are commonly known as “whistleblowers.” Some of the biggest cases of fraud and corruption in recent history—both in government and in the private sector—have resulted from whistleblower reports. Employees and other insiders are often in the best position to provide evidence of wrongdoing, but doing so can pose great risk to their own jobs. Numerous laws therefore protect whistleblowers from retaliation, including New Jersey’s Conscientious Employee Protection Act (CEPA). A lawsuit filed in New Jersey alleges that an automobile manufacturer retaliated against the plaintiff, in violation of CEPA, after he reported concerns to several supervisors and managers about possibly deceptive practices. Williams v. Tesla, Inc. et al., No. BUR-L-000194-18, complaint (N.J. Super. Ct., Burlington Cty., Jan. 26, 2018); removed to No. 1:18-cv-04120 (D.N.J., Mar. 23, 2018).Under CEPA, employers may not retaliate against an employee who reports suspected illegal, fraudulent, or otherwise wrongful conduct to a supervisor or a public body, including law enforcement, regulatory agencies, and legislative bodies. Retaliation is also prohibited if an employee participates in a public investigation of allegedly fraudulent or illegal activity, such as by testifying or providing other information; or if an employee “objects to, or refuses to participate in” acts that the employee believes to be illegal or in violation of public policy. N.J. Rev. Stat. 34:19-3. Aggrieved employees can file suit, and remedies may include reinstatement, lost wages, attorney’s fees and costs, and injunctive relief. Id. at § 34:19-5.

The defendant in Williams manufactures electric-powered automobiles and sells them to the general public. The plaintiff states in his complaint that he began working for the defendant in 2011. He claims that he became aware that the defendant “fail[ed] to disclose to consumers high-dollar, pre-delivery damage repairs prior to any transaction with consumers.” Williams, complaint at 2. The plaintiff “believed this practice to be illegal and/or fraudulent.” Id. He also allegedly learned that the defendant would “receiv[e] vehicles designated as ‘lemons,’” a term referring to a car with irreparable defects. Id. The plaintiff claims that the defendant would sell these vehicles to consumers without disclosing their “lemon” status, as required by state law. See N.J. Rev. Stat. § 56:12-35.

The plaintiff alleges that he reported his concerns to his direct supervisor, a regional manager, and a vice president in late 2016 and early 2017. He was working as a regional manager at that time. The supervisor and the regional manager reported to a director identified in the plaintiff’s complaint. The plaintiff claims that this director demoted him from regional manager to service manager, allegedly telling the plaintiff that he had “a ‘brand’ at the company and that there was no place for” him there. Williams at 3. The director allegedly demoted him again in July 2017, and he claims that a regional manager terminated him in September of that year, offering only pretextual reasons.

March 29, 2018

Supreme Court Rules that Dodd-Frank Whistleblower Protections Do Not Apply to Internal Reporting

by Resnick Law Group, P.C.

Enforcement of a wide range of laws and regulations depends on reporting by people with knowledge of possible violations, often known as “whistleblowers.” In cases involving suspected wrongdoing by an employer, many potential whistleblowers may hesitate to speak out, for fear of losing their jobs. In New Jersey, employment statutes protect whistleblowers against retaliation by their employers. The U.S. Supreme Court recently ruled on a dispute over the whistleblower protections in the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”). It held that, unlike many other whistleblower protection laws, Dodd-Frank protects people who report their concerns to the government, but not those who only report internally. Digital Realty Trust, Inc. v. Somers, 583 U.S. ___ (2018).

New Jersey whistleblowers may report their concerns to government regulators or to internal control officers. The New Jersey Conscientious Employee Protection Act (CEPA) protects public and private employees who disclose suspected legal violations, or who refuse to take part in acts that they reasonably believe are illegal or unethical. This includes disclosures made “to a supervisor or to a public body.” N.J. Rev. Stat. § 34:19-3(a). The language of Dodd-Frank, however, is not as clear on this issue.

Congress passed Dodd-Frank as a response to the financial crisis of 2008. The statute defines “whistleblower” as one or more individuals who report alleged violations of securities laws or regulations “to the Commission, in a manner established, by rule or regulation, by the Commission.” 15 U.S.C. § 78u-6(a)(6). The term “Commission” is defined elsewhere in the same chapter as the Securities and Exchange Commission (SEC), with an exception when “the context otherwise requires” a different interpretation. Id. at § 78c(a)(15). The question for the Supreme Court was whether Dodd-Frank’s whistleblower protections apply to someone who makes a report to someone other than the SEC.

January 26, 2018

New Jersey Whistleblower Lawsuit Not Preempted by Federal Law, State Supreme Court Rules

by Resnick Law Group, P.C.

In New Jersey, employment laws at the federal and state levels protect a variety of employee rights. When federal and state laws conflict with each other, the preemption doctrine holds that federal law usually supersedes state or local laws. The New Jersey Supreme Court ruled last year on an appeal of of a ruling that a New Jersey whistleblower claim was preempted by federal law. The court reversed the lower court rulings, finding that the plaintiff’s claims were not preempted. Puglia v. Elk Pipeline, Inc., 141 A.3d 1187 (N.J. 2016).

The New Jersey Conscientious Employee Protection Act (CEPA) prohibits retaliation against employees who report suspected violations of law by their employers. N.J. Rev. Stat. § 34:19-3. The plaintiff in Puglia had complained of alleged violations of New Jersey’s Prevailing Wage Act (PWA), which governs wages paid by companies involved in public works contracts and which allows employees to protest alleged violations. Id. at § 34:11-56.34.

The federal National Labor Relations Act (NLRA) and Labor Management Relations Act (LMRA) govern collective bargaining agreements (CBAs) between management and labor unions. Section 301 of the LMRA gives federal courts jurisdiction over disputes between employers and labor organizations. 29 U.S.C. § 185(a). The U.S. Supreme Court has “given broad substantive effect” to this provision. Puglia, 141 A.3d at 1192. It therefore preempts almost any case that involves “what the parties to a labor agreement agreed.” Id. at 1193, quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985).