Retaliation

December 2, 2016

New Jersey Jury Awards $8.45 Million in Wrongful Termination Case

A wrongful termination lawsuit in a New Jersey state court resulted in a jury verdict awarding the plaintiff $8.45 million in September 2016. This amount consisted of compensatory damages for emotional distress of $2.45 million, as well as $6 million in punitive damages. The plaintiff alleged that her employer, a government agency in Hudson County, New Jersey, terminated her after she sought treatment for depression, despite the fact that two mental health professionals had stated that she was fit to return to work. The New Jersey Civil Service Commission (CSC) ruled that the county had wrongfully terminated her and awarded her back pay. Matter of Malta-Roman, Hudson Cty. Dept. of Family Svcs., Docket No. 2013-2883, decision (N.J. Civil Svc. Comm., May 7, 2015). The plaintiff also filed a civil lawsuit, which resulted in the jury verdict. Malta-Roman v. Hudson Cty., No. L-001361-14, complaint (N.J. Super. Ct., Hudson Co., Mar. 24, 2014).

This case highlights two tracks that employment law claims can take. The plaintiff brought a claim before the New Jersey Office of Administrative Law (OAL) and the CSC. Filing an administrative claim is a prerequisite for many employment law claims. A person claiming employment discrimination, for example, must first file a complaint with the federal Equal Employment Opportunity Commission (EEOC) or a comparable state or local agency. The agency may decide to pursue the matter on the claimant’s behalf. If it does not, it may issue a “right to sue” letter, which allows the claimant to file a civil lawsuit. Since the plaintiff in Malta-Roman was a county employee, she had to use certain administrative procedures before going to court.

August 25, 2016

Employment Contract May Not Restrict Employee’s Rights Under New Jersey Law Against Discrimination, According to State Supreme Court

by Resnick Law Group, P.C.

The New Jersey Law Against Discrimination (LAD) protects workers in this state from a wide range of unlawful employment practices. In order to assert their rights and claim damages, individuals must follow procedures outlined in the LAD, as well as case law interpreting the statute. This includes a two-year statute of limitations for filing suit. The New Jersey Supreme Court recently ruled that an employment contract may not limit the protection offered by the LAD by reducing this time period from two years to six months. Rodriguez v. Raymours Furniture Co., No. A-27 Sept. Term 2014, 074603, slip op. (N.J., Jun. 15, 2016). The court held that any such restriction “defeats the public policy goal” of the LAD. Id. at 4.

The LAD prohibits employers from discriminating against employees on the basis of various protected categories, including race, sex, religion, national origin, sexual orientation, gender identity or expression, and disability. N.J. Rev. Stat. § 10:5-12. It also prohibits retaliation against an employee for asserting their rights, such as by making an internal complaint to a human resources official or an external complaint to state or federal officials.

An individual may file a complaint with the New Jersey Division on Civil Rights, or they may file suit in Superior Court against an employer for alleged violations of the LAD. The statute does not specify a time frame during which a complainant must file suit, but the state Supreme Court has determined that the applicable statute of limitations is two years. Montells v. Haynes, 627 A.2d 654, 133 N.J. 282 (1993).

July 11, 2016

U.S. Supreme Court Rules for Demoted Employee in First Amendment Claim

by Resnick Law Group, P.C.

The U.S. Supreme Court recently ruled in favor of a New Jersey police officer who claimed that his employer violated his First Amendment rights. Heffernan v. City of Paterson, 578 U.S. ___ (2016). This case is particularly notable because the underlying action by the plaintiff’s employer was based on a mistake. The employer thought the plaintiff was engaging in a “constitutionally protected political activity,” Heffernan, slip op. at 1, by supporting a political candidate opposed by the police chief. The district court and the Third Circuit Court of Appeals ruled against the plaintiff on the grounds that, since he was not actually engaging in constitutionally protected speech, his employer could not have deprived him of any constitutional right. The Supreme Court reversed this ruling based on a 1994 case, which held that an employer’s subjective belief is the controlling factor.

The First Amendment’s guarantee of “freedom of speech” means, in part, that the government cannot punish a person for the content of their speech. In an employment law context, this protects public employees like the plaintiff, a police officer. Government employers are generally prohibited from taking adverse action against an employee for acts that are protected by the Bill of Rights. This restriction does not necessarily apply to private employers, since the First Amendment only restrains government actions. Congress enacted a statute in the 19th century giving individuals the right to file suit against a government official for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” while acting in an official capacity. 42 U.S.C. § 1983.

The plaintiff in Heffernan was a 20-year veteran of the police department in Paterson, New Jersey. He was assigned to work in the police chief’s office in 2005, according to the court’s opinion. The mayor, who had appointed both the chief and the plaintiff’s direct supervisor, was running for reelection at the time. The plaintiff was reportedly “a good friend” of the mayor’s challenger. Heffernan, slip op. at 2.

May 27, 2016

How New Federal Trade Secrets Legislation Could Affect New Jersey Employment Law

by Resnick Law Group, P.C.

In order to remain competitive in the marketplace, most businesses rely on keeping certain types of information confidential. These might include client lists, sales leads, or computer algorithms, to name but a few. Employees often have access to information that an employer considers proprietary or otherwise secret. State laws protecting trade secrets may affect employees during and after their employment relationship. New federal legislation, the Defend Trade Secrets Act (DTSA) of 2016, Pub. L. 114-153 (May 11, 2016), expands federal courts’ jurisdiction over trade secret matters, and it could have an impact on employees in New Jersey and around the country.

Until the DTSA came along, no uniform standard for trade secret protection applied across the country. New Jersey law defines a “trade secret” as information that has value specifically because it is secret and that has been “the subject of efforts…to maintain its secrecy.” N.J. Rev. Stat. § 56:15-2. This definition is consistent with most state statutes and existing federal law. See 18 U.S.C. § 1839(3).

New Jersey’s trade secrets law prohibits the “misappropriation” of a trade secret, defined to include the acquisition of secret information by a party who knows of its confidential nature, and the disclosure of such information without permission and with knowledge of its secrecy. N.J. Rev. Stat. § 56:15-2. It allows state courts to grant injunctions to prevent “actual or threatened misappropriation.” Id. at § 56:15-3. It also allows the recovery of damages for actual losses and unjust enrichment resulting from misappropriation. Id. at § 56:15-4.

April 15, 2016

Former Employee Files Suit Under New Jersey Whistleblower Law, Claiming Employer Fired Her for Reporting Financial Misconduct

by Resnick Law Group, P.C.

A former daycare center worker in New Jersey has filed suit against her former employer, alleging violations of the state’s whistleblower protection and anti-discrimination statutes. Pierce v. Woodbury Child Dev. Ctr., Inc., No. L-000216-16, complaint (N.J. Super. Ct., Gloucester Co., Feb. 19, 2016). According to media coverage of the case, the plaintiff claims that she was wrongfully terminated from her job after reporting alleged misappropriation of state funds. The Conscientious Employee Protection Act (CEPA), N.J. Rev. Stat. § 34:19-1 et seq., prohibits retaliation against employees who report suspected illegal acts by their employers. The New Jersey Law Against Discrimination (NJLAD), N.J. Rev. Stat. § 10:5-1 et seq., prohibits retaliation in situations in which an employee complains of workplace discrimination and other unlawful acts.

New Jersey enacted CEPA in 1986 in order to protect employees from various types of “retaliatory action” by employers, defined to include “discharge, suspension or demotion…or other adverse employment action.” N.J. Rev. Stat. § 34:19-2(d). Employers may not retaliate against employees who engage in certain types of activity commonly known as “whistleblowing,” such as reporting, or threatening to report, activities, practices, or policies that the employee reasonably believes violate the law.

Based on the language of the statute, CEPA’s focus seems to be on illegal and fraudulent acts that adversely affect the government, shareholders, investors, customers, employees, and others to whom an employer might owe a duty of care. See N.J. Rev. Stat. § 34:19-3. The report may be internal, such as to a supervisor, or external, such as to a law enforcement agency or other public organization. A whistleblower may also be an employee who participates in an investigation of an employer, or who refuses to participate in an action that they reasonably believe is illegal or fraudulent.

February 23, 2016

Laws in New Jersey and at Federal Level Prohibit “Pay Secrecy” Policies by Employers

by Resnick Law Group, P.C.

Federal law and New Jersey state law generally prohibit wage discrimination, in which an employer pays different wages to employees of different genders who hold substantially similar positions or have substantially similar job duties. As the issue of wage disparity between male and female employees gains attention nationwide, understanding these laws is critically important. It can be difficult to establish that one employee has the same job as a higher-paid employee. Some employers, however, prevent workers from ever reaching that point by prohibiting their employees from disclosing or inquiring about wage information with co-workers. This practice, commonly known as “pay secrecy,” remains common despite laws prohibiting it at the federal and state levels.

The federal Equal Pay Act amended the Fair Labor Standards Act (FLSA) to ban payment of different wages to male and female employees for jobs requiring “equal skill, effort, and responsibility…performed under similar working conditions.” 29 U.S.C. § 206(d). The law allows exceptions for seniority, merit, and quantitative or qualitative factors, and the broadly-construed “differential based on any other factor other than sex.” Id. A bill that would have limited this last category, the Paycheck Fairness Act, died in the Senate in 2014. New Jersey law merely states that employers may not discriminate in the payment of wages based on sex, and it allows exceptions for any “reasonable factor or factors other than sex.” N.J. Rev. Stat. 34:11-56.2.

In order to assert their rights under federal or state wage discrimination laws, employees must know that a difference in wages exists. Many employers keep that from happening by enacting pay secrecy policies. Among private-sector employees, estimates of how many are subject to such policies range from one-third to more than 60 percent. Penalties for discussing pay rates or inquiring about pay rates can include anything from reprimands to termination.

January 4, 2016

Former New Jersey Prison Official Awarded $7.7 Million in Whistleblower Lawsuit

by Resnick Law Group, P.C.

A jury in a New Jersey superior court awarded $7.7 million in damages to a former prison official in her lawsuit alleging retaliation for cooperating with a federal extortion investigation. Easley v. N.J. Dept. of Corrections, et al., No. L-000094-13, complaint (N.J. Super. Ct., Burlington Co., Jan. 10, 2013). A Department of Corrections deputy commissioner went to prison as a result of the investigation, and the plaintiff alleged that she was terminated by the department in retaliation. The lawsuit asserted claims under state whistleblower protection law, including the Conscientious Employee Protection Act (CEPA), N.J. Rev. Stat. § 34:19-1 et seq. The judgment includes both compensatory and punitive damages.

Common-law whistleblower protections in New Jersey are based on an employer’s duty “not to discharge an employee who refused to perform an act that is a violation of a clear mandate of public policy.” Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980). After the New Jersey Legislature enacted the CEPA, the New Jersey Supreme Court held that its protections apply to a wide range of individuals defined as “employees.” D’Annunzio v. Prudential Ins. Co., 192 N.J. 110 (2007). The court has continued to affirm that the statute has broad applicability. See Lippman v. Ethicon, ___ N.J. ___, Nos. A-65/66-13, 073324, slip op. (Jul. 15, 2015).

December 11, 2015

Lawsuit Claims Sexual Harassment, Pregnancy Discrimination by New Jersey Hospital

by Resnick Law Group, P.C.

A lawsuit filed earlier this year by a former hospital security supervisor alleges sexual harassment and pregnancy discrimination. Russo v. Robert Wood Johnson Health Sys., No. L-003497-15, complaint (N.J. Super. Ct., Middlesex Co., Jun. 16, 2015). New Jersey law specifically prohibits pregnancy discrimination, while federal law considers it a form of sex discrimination. Both federal and New Jersey law consider sexual harassment to be a type of unlawful sex discrimination, to the extent that it either directly affects the conditions of employment or creates a hostile work environment.

The plaintiff worked for the defendant hospital from 2008 until June 2015. Her most recent position was as security supervisor. She alleges that her supervisor subjected her to various forms of sexual harassment, including “sexually explicit text messages and emails,” for a period of about two years. The supervisor’s behavior towards her changed, she claims, when he learned that she was pregnant in June 2013. Instead of sexually explicit remarks, he allegedly began making “disparaging and unwarranted comments about her work performance.” The plaintiff specifically states that she had requested a promotion and raise in spring 2013, after she had taken on additional job duties with her supervisor’s alleged approval. She claims that the supervisor never followed up on her request after learning of her pregnancy.

This sort of conduct continued, the plaintiff claims, throughout her pregnancy. Before she went on maternity leave in January 2014, the supervisor allegedly told her that taking leave would put her job in jeopardy. She returned to work in July 2014, and claims that her supervisor and others began harassing her with regard to issues like breastfeeding. She states that she was initially allowed to use her private office to pump breast milk, but the hospital’s human resources (HR) director eventually told her that she had to use a lactation room in a different building. Because of its location, the plaintiff claims that the time needed to walk there from her office and back would not give her enough time to complete her job duties.

October 20, 2015

Second Circuit Adopts Broad Definition of “Whistleblower” in Dodd-Frank Retaliation Lawsuit

by Resnick Law Group, P.C.

The Second Circuit Court of Appeals, whose jurisdiction includes New York City, issued a ruling in September 2015 that takes a broad view of whistleblower protections under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”). Berman v. Neo@Ogilvy LLC, et al, No. 14-4626, slip op. (2d Cir., Sep. 10, 2015). Dodd-Frank protects individuals who report possible securities law violations from retaliation by their employers, but its definition of a whistleblower is ambiguous. The court resolved the ambiguity in favor of the employee. The ruling conflicts with a ruling from another circuit court, see Asadi v. G.E. Energy (USA), LLC, 720 F.3d 620 (5th Cir. 2013), so the U.S. Supreme Court may have to weigh in at some point in the future.

Dodd-Frank created a “Whistleblower Program,” administered by the Securities and Exchange Commission (SEC), which provides incentives for individuals who report suspected violations of federal securities law. 15 U.S.C. § 78u-6. The law also states that an employer may not retaliate against an employee who makes a report. Id. at § 78u-6(h)(1).

Most statutes that prohibit retaliation in this manner address both internal reporting, such as to a compliance officer or human resources department, and external reporting, such as to a regulatory or law enforcement agency. Dodd-Frank, however, defines a “whistleblower” as “any individual who provides…information relating to a violation of the securities laws to the [SEC]…” Id. at § 78u-6(a)(6). Given its plain meaning, the statute leaves people who report internally unprotected. This was the issue presented to the Second Circuit in Berman.
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September 18, 2015

The Americans with Disabilities Act, Which Protects New Jersey Workers Against Employment Discrimination, Turns 25

by Resnick Law Group, P.C.

The Equal Employment Opportunity Commission (EEOC) recently celebrated the 25th anniversary of the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12101 et seq. The ADA helps ensure that people with disabilities have access to public buildings, public transportation, and private businesses considered “public accommodations.” It also protects disabled workers against discrimination and requires employers to provide them with reasonable accommodations. The difficulty tends to come in the applicability of the ADA’s definition of “disabled” to a particular worker, or the reasonableness of a requested accommodation under its specific circumstances. It is worth taking a moment to review the ADA and the ways it has been interpreted and adapted over the years.

In numerous ways, the ADA has literally changed the landscape of the country. Title II of the ADA requires government buildings and public transportation to allow access by disabled individuals. This might include wheelchair ramps, elevators, or assistance for people with impaired vision or hearing. Title III establishes similar requirements for “public accommodations”–private businesses that offer products or services to the general public, such as hotels, restaurants, theaters, grocery stores, gas stations, bus depots, libraries, parks, schools, day care centers, and golf courses. 42 U.S.C. § 12181(7). Title IV requires telecommunications service providers to make services available to people with hearing and speech impairments. 47 U.S.C. § 225.

Title I of the ADA prohibits employment discrimination based on disability. It also requires employers to make reasonable accommodations for disabled workers. Title V includes a prohibition on retaliation for asserting rights under any of the ADA’s provisions. Congress has added to the ADA’s protections with subsequent laws, such as the Americans with Disabilities Amendments Act (ADAAA) and the Genetic Information Nondiscrimination Act (GINA), which both became law in 2008.
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