Labor and Employment

Published on: January 19, 2018

Potential Roadblock for Certain Whistleblower Claims

whistle-2496555__340-300x200 In the case of DiFiore v. CSL Behring, LLC, a former pharmaceutical employee brought an action in the District Court for the Eastern District of Pennsylvania against her former employer for retaliation in the form of a wrongful, constructive discharge. In that case, the employee specifically brought claims under the federal False Claims Act (“FCA”) https://www.law.cornell.edu/uscode/text/31/3729 and Pennsylvania’s common law wrongful discharge cause of action. She claimed that she had raised concerns about off-label marketing of products which caused her employer to retaliate.

In that case, the District Court instructed the jury that, in order to prove retaliation under the FCA, the employee had to prove that the whistleblowing by the employee was the sole cause for the adverse action (firing or other retaliatory action). However, the plaintiff-employee argued that she need only provide that the whistleblower action was a motivating factor for the wrongful discharge – not that it was the only reason for the adverse employment action. The plaintiff was relying on a prior Third Circuit case, Hutchins v. ABC Corp. However, the Court determined that the “motivating factor” language in the Hutchins case was merely dicta – meaning that the language was extraneous to the decision and does not act as precedential.

The Court also decided that the United States Supreme Court decisions in Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v Nassar indicate that a “motivating factor” test is inappropriate. (The Gross case considered a claim under the Age Discrimination in Employment Act (“ADEA”) and the Nassar case considered a claim under Title VII of the Civil Rights Act.) In both cases, the Supreme Court found that the language “because of” in those laws, equated to the requirement of “but-for” causation. In other words, the adverse action would not have happened “but for” the improper motivation, requiring that to be the exclusive motivation. The ADEA, Title VII, and the FCA all contain that same language.

Published on: January 11, 2018

United States Third Circuit Court of Appeals Extends Winters Doctrine, Further Limiting New Jersey Government Employees’ Right to Appeal Wrongful Employment Decisions

by Maurice W. McLaughlin

Our employment lawyers represent many honorable New Jersey employees in disputes with their governmental employers.

The Winters Doctrine

As I wrote in a previous post, in 2012 the New Jersey Supreme Court created a serious hurdle for public employees. In the case of Winters v. North Hudson Regional Fire and Rescue, the Supreme Court held that an adjudication by the Civil Service Commission of allegations that a termination was illegal retaliation (even raised tangentially) barred subsequent litigation for violation of New Jersey’s Conscientious Employee Protection Act (known as “CEPA”) based on the same facts in a lawsuit in New Jersey Superior Court. The Appellate Division of New Jersey’s Superior Court subsequently held that such a bar applied to claims of retaliation raised in disciplinary appeals under both CEPA and New Jersey’s Law Against Discrimination (known as the “LAD”).

Published on: January 9, 2018

New Jersey’s Ban on Employers Inquiring about Criminal History Background Checks

by Pauline M.K. Young

police-2122373__340-300x200 In 2014, New Jersey’s Governor Christie signed The Opportunity to Compete Act which limited an employer’s ability to ask a potential employee about criminal records in many circumstances. The State passed this law based upon several findings, including:

Criminal background checks by employers have increased dramatically with an estimated ninety percent of employers in the country conducting such checks as a matter of course during the hiring process;
Barriers to employment based upon a criminal record could affect approximately sixty five million people in the United States;

Published on: December 12, 2017

New Jersey Whistleblower

by Maurice W. McLaughlin

whistleblower-1764379__340-300x300 New Jersey employment law protects employees who object to or report illegal conduct by their employers. New Jersey’s whistleblower protections, particularly the Conscientious Employee Protection Act, have been recognized as the strongest in the nation. The various sources of these protections are discussed below.

New Jersey’s Common Law – the Original Protection

New Jersey’s common law – the body of law derived from prior court decisions – holds that it is a civil wrong for an employer to fire an employee “in violation of a clear mandate of public policy.” What this has been interpreted to mean in the seminal New Jersey Supreme Court case of Pierce v Ortho Pharmaceuticals Corp. is that an employer cannot fire an employee in retaliation for the employee acting in opposition to a practice by the employer which was in violation of public policy, which in practice meant against the law.

Published on: November 17, 2017

Third Circuit Issues Important Wage & Hour Decision

by Maurice W. McLaughlin

Wage and Hour Laws Governing New Jersey Workplaces

The Fair Labor Standards Act is the federal law which, along with the Wage and Hour Division of the United States Department of Labor’s regulations found in the Code of Federal Regulations, governs overtime and minimum wage requirements. The Fair Labor Standards Act (known as the “FLSA”) requires that most employees (known as “non-exempt” employees, or those who are not exempt from overtime requirements) be paid “time and a half” for all hours they work over forty in any particular week.

In an action for violating the F

Published on: November 1, 2017

Third Circuit Court of Appeals Rules That Employers Must Pay Employees During Breaks of Twenty Minutes or Less

by Maurice W. McLaughlin

american-963190__340-300x200 Some of the most conflict-ridden areas in New Jersey employment involve wage and hour issues – who needs to be paid, how much, when and for what. An important Federal appeals court decision has shed light on one of the most contested topics in this area – when employees mostly paid for benefits.

The Wage and Hour Legal and Regulatory Framework

Wage and hour issues in New Jersey are governed by New Jersey’s Wage and Hour Law and New Jersey’s Wage Payment Law. Employers in New Jersey must also comply with the requirements of the Federal Fair Labor Standards Act (known as the “FLSA”), and the regulations put out by the United States Department of Labor implementing the FLSA. New Jersey courts follow federal court decisions on the FLSA when interpreting the Wage and Hour Law and the Wage Payment Law. The Regulations which the Department of Labor established are found in the Code of Federal Regulations, known as the “CFR.”

Published on: October 17, 2017

Employees Who are Being Retaliated Against or Discriminated Against by Their Employers Must Be Cautious in Preserving Records for Litigation

by Pauline M.K. Young

racism-2733840__340-300x300 When an employee is being harassed or disciplined in his employment as a result of discrimination or retaliation for the employee’s objections to illegal conduct, there are multiple laws which may provide relief to the employee. These include, for instance, New Jersey’s Law Against Discrimination (the “LAD”) and New Jersey’s Conscientious Employee Protection Act (“CEPA,” also known as the “Whistleblower Law.”)

Both Acts may allow the employee to bring a lawsuit against the employer for a wrongful termination or other adverse employment action (i.e. demotion), as well as harassment. When an employer is wrongfully disciplining or retaliating against an employee, it is important for the employee to preserve and maintain records of the wrongful conduct of the employer in order to support her claim that she suffered a wrongful employment action. However, employees need to be cautious in what records they preserve and how they preserve those records.

In the case of Quinlan v. Curtiss Wright Corporation Joyce Quinlan believed that as a result of gender discrimination, her employer had passed her over for a promotion. She then began copying confidential human resources files which she believed supported her claim that she was being discriminated against and she produced the copies in the course of discovery during litigation. The employer later fired her for “taking” the records (while litigation was ongoing). Quinlan then amended her complaint to include the claim that she was retaliated against for essentially participating in the LAD suit against the employer. The Law Against Discrimination not only prohibits employment discrimination on the basis of a protected classification (gender, nationality, religion, race, etc.), but it also prohibits retaliation against a person for opposing discrimination, filing a discrimination complaint, or participating in a LAD proceeding.

Published on: September 25, 2017

New Jersey Appeals Court Reinstates Termination of Employee in Examination of the “Deemed Accepted” Rule and Progressive Discipline in New Jersey Civil Service Commission Decisions

by Maurice W. McLaughlin

A New Jersey appeals court recently issued an important decision in the case of In the Matter of William R. Hendrickson, Jr., Department of Community Affairs, in which it examined two core concepts in New Jersey’s Civil Service employment law: progressive discipline and the “deemed accepted” rule.

Background

William Hendrickson was a fire inspector for the New Jersey Department of Community Affairs (the “DCA”). He was alleged to have made vulgar, misogynistic comments toward a female supervisor who had changed his work assignment. The comments were alleged to have been made in a public setting, with members of the public present. The DCA initiated disciplinary proceedings and terminated Hendrickson’s employment. Hendrickson appealed to the Civil Service Commission. The matter was transferred to the New Jersey Office of Administrative Law (the “OAL”) where an administrative law judge (“ALJ”) conducted a trial. The ALJ found that Hendrickson did make the remarks, and that they merited discipline. However, using the concept of progressive discipline, the ALJ found that a six month suspension was more appropriate than termination given Hendrickson’s lack of any prior discipline during his eighteen month employment.

Published on: September 11, 2017

New Jersey’s Conscientious Employee Protection Act Covers an Employee’s Refusal to Violate Professional Ethics

by Pauline M.K. Young

business-1753098__340-300x213 New Jersey’s Conscientious Employee Protection Act (“CEPA”) employees from being fired for objecting to or refusing to participate in conduct which the employee reasonably believes to be illegal or against public policy. If the employee is wrongfully retaliated against, CEPA provides a remedy through litigation. Also known as the “whistleblower law,” CEPA is one of the most strongest employee protection laws in the country. However, since it was enacted in only 1986, courts continue to disagree as to the exact scope and extend of the law.

In the recent case of Trzaska v. L’Oreal USA, Inc., the employee, Steven Trzaska claimed that he was fired in retaliation for his refusal to take actions which he believed violated the Rules of Professional Conduct (“RPC”). RPCs set forth the rules for ethical conduct which although must follow, and, in fact, an attorney may lose his license to practice law if certain rules are not followed. In the Trzaska case, L’Oreal had issued a quota or mandate for Mr. Trzaska to prepare a certain number of patent applications. Mr. Trzaska advised that he would not file any patent application unless he had a good faith believe that the product was patentable. Mr. Trzaska was fired thereafter and he filed a lawsuit in the District Court.

The United States District Court for the District of New Jersey then dismissed Mr. Trzaska’s case in the early stages requiring that the RPCs did not meet CEPA’s requirements that the employee object to or refuse to participate in illegal conduct. CEPA’s language

Published on: September 7, 2017

New Jersey’s Supreme Court Issues Major Decision on Disability Discrimination in Employment Law

by Maurice W. McLaughlin

group-418449__340-300x300 Our labor and employment attorneys represent employers and employees in cases of wrongful termination and discrimination. This is an area of New Jersey employment law which generates considerable litigation. New Jersey’s Supreme Court recently issued an important opinion on when an employee may be terminated because her disability impairs her ability to perform the essential functions of her job.

Maryanne Grande had been a registered nurse for thirty years, and employed by St. Claire’s Health System for ten years, from 2000 through 2010. St. Claire’s job description for a registered nurse included lifting fifty pounds from waist to chest “frequently” as an “essential” job function. Grande suffered a series of injuries at work beginning in 2007. Her final injury was suffered while she was preventing an overweight patient from falling. Her doctor cleared her to resume full-duty work. However, St. Claire’s ordered her to undergo a physical with its own doctor, who said she could perform lifting only “occasionally,” which it defined as “1-33% of the time.” However, the report also concluded that it was “improbable that this will significantly affect job performance ability.” The report also concluded that Grande could return to work with “altered duties.”

Her own doctor again examined her and provided her with a form which said she could return to work with only certain limitations on lifting. The next day Grande was fired. She returned to her doctor, who cleared her to return to full-time duty with no restrictions. However the termination was not rescinded.