"New Jersey Employment Lawyers"

Published on: August 25, 2017

United States Court of Appeals for the Third Circuit clarifies standard for providing illegal harassment

dc-court-appeals-district-columbia-building-abraham-lincoln-statue-74985350 One of the most vexing problems facing employees suing their employers for harassment is what legal standard the acts must meet in order to prove harassment. In the case of Castleberry v. STI Group, the United States Court of Appeals for the Third Circuit held that harassment need only be severe or pervasive, giving a significant victory to employees.

In that case, Atron Castleberry and John Brown were African-American men. They obtained jobs through a staffing agency, STI Group, which employed and placed them with Chesapeake Energy Corporation, an oil and gas company. Shortly after they were hired, the only other African-American on their crew was fired. They alleged that on several occasions someone wrote “don’t be black on the right of way” on their timesheets. They also alleged that they were only allowed to clean around pipelines despite their experience, when other employees faced no such restrictions, including white employees with less experience. They also claimed that while they were working on a fence-removal project their supervisor told them that they would be fired if they “n…..r-rigged” the fence. After the last incident, which seven co-workers confirmed, they reported the incident. Two weeks later they were fired.

They filed suit in the United States District Court under federal employment law. The district judge dismissed their case before any evidence was exchanged in discovery because he believed that the employees had not alleged harassment which created a hostile work environment which was both “severe” and “pervasive.” The employees appealed to the United States of America for the Third Circuit, which hears appeals of New Jersey Federal cases. The Third Circuit reversed.

Published on: August 1, 2017

New Jersey Civil Rights Act Protects Local Government Employees From Politically Motivated Acts

by Maurice W. McLaughlin

megaphone-1480342__340-300x200 The New Jersey Civil Rights Act, the state counterpart to the federal law known as “Section 1983,” is a powerful tool for government employees to protect themselves when their public employers violate their civil rights

After the Civil War, Congress passed a law known as “Section 1983.” Section 1983 was part of the Ku Klux Klan Act, also known as the Civil Rights Act of 1871. The Act was passed at the urging of President Ulysses S. Grant as part of a series of measures during Reconstruction to protect the rights (and safety) of freed slaves in the South, who were facing increased violence and intimidation from the Klan and others. Indeed, much of this was orchestrated with local government. Section 1983 therefore made it illegal for someone to act “under color of law or authority” to deprive another person of their rights under the United States Constitution or federal law. Essentially, it gave people a remedy for violation of their rights. It allowed for civil suits, injunctions, punitive damages and the recovery of attorneys fees as well. Over the years, Section 1983 has come to protect the rights of public employees from the denial of rights by local government employers.

However, New Jersey had no counterpart for a remedy for people deprived of their rights under the New Jersey Constitution or New Jersey law, which was not protected under Section 1983. To resolve this gap, in 2004, New Jersey enacted the New Jersey Civil Rights Act to provide a remedy for violations of a person’s civil rights protected by New Jersey laws or the New Jersey Constitution. Like its federal counterpart Section 1983, the New Jersey Civil Rights Act protects public employees from deprivation of their civil rights by their local employers. As currently interpreted by the courts, the New Jersey Civil Rights Act allows for suits only against local governments such as towns, cities, boards of education, counties and local government authorities (such as housing authorities, parking authorities, etc.).

Published on: June 1, 2017

New Jersey Discrimination and Retaliation Claims Not Preempted by Federal Labor Management Relations Act

by Maurice W. McLaughlin

strategy-1710763__340-300x160 One of the most difficult issues for New Jersey employment attorneys is when federal law preempts New Jersey employment law. One of the most thorny areas is the intersection of the Federal Labor Management Relations Act, which governs the interpretation and application of collective bargaining agreements (union contracts) in the private sector. Fortunately, New Jersey’s Appellate Division has recently issued an important opinion clarifying this complex area in the context of disability discrimination and retaliation by an employer against an employee for filing a workers compensation claim.

Background

Brian Hejda was a truck driver for Bell Container Corp., and a member of Teamsters Local Union 813. He suffered a workplace knee injury. He had various restrictions on what he could do at work, and he was medically limited to light duty. He filed a workers compensation claim; Bell denied that he sustained a disabling injury. Eventually Hejda was asymptomatic and able to return to full duty, although his doctors advised that he would eventually need arthroscopic surgery to repair the damage. Hejda reported to work for a week but was not given much to do. When he returned the following week, he was told to leave.

Published on: May 31, 2017

Confidentiality Privileges in Internal Employer Investigations

by Pauline M.K. Young

puzzle-693873__340-300x228 An attorney-client relationship involves the reasonable reliance by an individual (the client) on the professional knowledge and/or skills of an attorney who is aware of and accepts responsibility for that reliance. While a written agreement is not required for this relationship to exist, there must be some mutual understanding, consensus, and/or act manifesting the acknowledgement of the relationship.

One of an attorney’s obligations to a client the duty to maintain the confidentiality of communications with the client. The New Jersey Supreme Court has said that:

Such an obligation is necessary for several reasons. Persons who seek legal advice must be assured that the secrets and confidences they repose with their attorney will remain with their attorney, and their attorney alone. Preserving the sanctity of confidentiality of a client’s disclosures to his attorney will encourage an open atmosphere of trust, thus enabling the attorney to do the best job he can for the client.

Published on: May 17, 2017

New Jersey Court Imposes Restrictions on Police Officers Taking Leave to Hold Elected Office

by Maurice W. McLaughlin

police-car-1889057__340-300x300 Our employment attorneys handle New Jersey civil service appeals and litigation. The Appellate Division of New Jersey Superior Court recently issued a decision on “dual officeholding” which affects the rights of New Jersey Civil Servants.

Gary DeMarzo was hired as a police officer by Wildwood in 1998. In 2007 he was elected a city commissioner. Under New Jersey’s Walsh Act, a “commission type” government combines the functions normally exercised separately by a mayor and council into a single board of commissioners, which exercises both legislative and executive and legislative power for the municipality. The Wildwood Board of Commissioners thus exercised executive power over the Wildwood Police Department. DeMarzo applied for unpaid leave from the Police Department in accordance with the New Jersey Civil Service Act.

The City of Wildwood filed an action in the Superior Court of New Jersey requesting a declaratory judgment that the positions of commissioner and police officer were incompatible. The trial court judge found the two positions were, in fact, incompatible. However, rather than ordering DeMarzo to give up one of the positions, it crafted a set of restrictions on DeMarzo’s function as a commissioner. The City appealed, arguing that the trial judge erred in this ruling.

Published on: May 15, 2017

Guidance for New Jersey Employers and Employees About President Trump’s Executive Order Promoting Free Speech and Religious Liberty

by Maurice W. McLaughlin

rubics-cube-2108030__340-300x200 President Trump recently issued an “Executive Order Promoting Free Speech and Religious Liberty.” We have been asked what this will mean for New Jersey employers or employees. For private sector, and New Jersey state and local public sector employers and employees, the answer is probably not much, if anything. Let’s break it down by some of declarative provisions.

Section 1. Policy. It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom. ….Umm, well, that’s been the policy of the government for decades now, so nothing much should change there.

Sec. 2. Respecting Religious and Political Speech. All executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech. In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury. As used in this section, the term “adverse action” means the imposition of any tax or tax penalty; the delay or denial of tax-exempt status; the disallowance of tax deductions for contributions made to entities exempted from taxation under section 501(c)(3) of title 26, United States Code; or any other action that makes unavailable or denies any tax deduction, exemption, credit, or benefit. First, again, protecting free speech and free exercise of religion are already the federal government’s policy. Discrimination by employers against employees is already prohibited by federal law, and both federal and New Jersey employment law require employers to provide “reasonable accommodation” so employees can exercise their religion, so no change there. And if you’re in the private sector – too bad; the First Amendment only protects you from the government, not your private sector employer. Further, those protections already exist in the public sector.

Published on: May 2, 2017

New Jersey Court Rules that Unemployment Benefits Should Not Lower Lost Pay Recoverable from Employer Which Discriminates Against Disabled Employee

by Maurice W. McLaughlin

wheelchair-1365410__340-300x300 Our employment lawyers represent employers and employees in New Jersey labor and employment litigation. Each employment case has two parts. The first is liability – did the employer commit the wrongful act of which it is accused by the employee? If the answer is no, the case is over; if the answer is yes, then the employee must prove damages. One question which has bedeviled courts is whether unemployment compensation received by an employee should reduce the damages she can receive for lost pay resulting from an allegedly discriminatory firing. The Appellate Division of the Superior Court of New Jersey has now answered this question with a resounding “no.”

New Jersey provides a wide range of employment protections to employees. These laws provide for a range of remedies if employees are the victim of unlawful conduct by their employer. Some laws provide for recovery of damages for emotional distress. Sometimes, in especially egregious cases, punitive damages may be available. If the particular statutes provide for it, such as New Jersey’s Law Against Discrimination (known as the “LAD”) and the Conscientious Employee Protection Act (known as “CEPA”), if the employee is successful at trial the court may even order the employer to pay the employee’s attorneys fees.

The basic element of damages in employment cases, however, is lost pay. All other elements of damages flow from lost pay. If an employee is unemployed for a year, the pay she would have made during that time is recoverable as damages if she wins her suit. If after a year she then gets a job earning $10,000 per year less, the difference is recoverable as well. If after a year she gets a job making the same or more money, her damages end when she gets the new job.

Published on: April 6, 2017

Sexual Orientation Discrimination in the Seventh Circuit and Comparison with New Jersey’s Law Against Discrimination

by Maurice W. McLaughlin

pencil-1385100__340-300x200 Here at the New Jersey Lawyers Blog we usually stick to New Jersey law (the name is probably a giveaway). However, a federal decision this week in the United States Court of Appeals for the Seventh Circuit (with jurisdiction over appeals from the federal courts in Illinois, Indiana and Wisconsin) deserves mention. In the case of Hively vs. Ivy Tech Community College of Indiana, the Seventh Circuit held that firing an employee because of her sexual orientation is illegal sex discrimination in violation of Title VII of the Civil Rights Act of 1964. It became the first Federal appeals court to so hold. It broke with many of its sister circuits. The United States Supreme Court has never decided the issue.

Kimberly Hively was a part-time adjunct professor at Ivy Tech. She applied for at least six full time teaching positions but was rejected each time. Finally, her part-time contract was not renewed. Hively was only lesbian. She filed a complaint with the U.S. Equal Employment Opportunity Commission (the “EEOC”) alleging sex discrimination in violation of Title VII because she claimed that had been terminated because of her orientation. The EEOC issued a right to sue letter, and she filed suit in the United States District Court for the Northern District of Indiana pro se (on her own without a lawyer). The District Court dismissed her suit, ruling that discrimination because of sexual orientation was not protected by Title VII. She appealed to the Seventh Circuit. Initially a three judge panel of the Seventh Circuit agreed with the District Court and ruled against her. However, the entire court then voted to hear her appeal en banc (by the whole court), and reversed its prior decision.

The Seventh Circuit had several reasons for its holding. First, in 1989 the Supreme Court held that the practice of gender stereotyping was illegal sex discrimination. Then in 1998 it held that it made no difference whether or not the harasser was of the same or a different gender as the victim provided that the harassment was because of the victim’s gender. It then reasoned that if the stereotype is that a woman should marry a man Hively would not have been fired if she had married a person of the other sex, then she was discriminated against because of her gender because she married a woman, a person of the same sex.

Published on: February 21, 2017

Recent Decision by New Jersey’s Appellate Division Clarifies Requirements for Rice Notice to Employee Whose Employment May be Terminated

by Maurice W. McLaughlin

student-2052868__340-300x198 Our employment attorneys represent New Jersey public sector employees in disputes with their governmental employers. One area in which we frequently see disputes is the failure to give a “Rice Notice” to employees whose employment may be affected by an action by their governmental employers.

New Jersey employees, including non-tenured employees, have the right to advanced notice whenever a governing body, such as a town council or a board of education, is going to discuss the employee’s employment. This notice is called a “Rice Notice” after the case of Rice vs. Union County Regional Board of Education, which upheld the right. Normally, under New Jersey’s Open Public Meetings Act, personnel actions must be discussed in closed session unless all the affected employees request in writing that the discussion be held in the open during the public session of the meeting. The Rice Notice gives the employee the notice they need to actually exercise that right.

In the recent case of Kean Federation of Teachers vs. Morell, the Appellate Division of the Superior Court of New Jersey had the opportunity to take a fresh look at the requirements for a Rice Notice. In that case the Court was faced with a situation where the Board of Trustees of Kean University delegated the task of evaluating recommendations by the University President for the retention or dismissal of faculty members. The subcommittee evaluated the University President’s recommendations and made its own recommendations to the Full Board. The full Board of Trustees then voted on those recommendations without discussion. The Board argued that because it did not actually discuss any employment matters, but just voted without discussion,a Rice Notice was not necessary.

Published on: January 19, 2017

Attorneys Fees in New Jersey Civil Service Appeals

by Maurice W. McLaughlin

council-of-state-535721__340-1-300x103 The financial burden of a civil service appeal discourages many employees from filing. However, a successful employee may be able to recover the attorneys fees she spent on the appeal. Our attorneys handle civil service appeals for all of New Jersey’s Public Employees, such as police officers, teachers, firefighters, and administrative persons. Because we are concerned about the impact on our clients’ pocketbooks, we are always looking to see if we can shift the financial burden to the public employer.

This is important to the individual employee, of course, but also to the public at large. America is a democracy, and one of the key points to any form of a democracy is access to the government. Since the judiciary is one of the coequal branches of government, access to the court house is an important right. Shifting the costs of litigation to the employer after an employee’s successful appeal is one way to keep the doors to justice open to less well-off employees.

This principal was applied recently by in the case of In re Anthony Hearn, heard by the Appellate Division of the Superior Court of New Jersey. Anthony Hearn was a certified public accountant in the New Jersey Office of Compliance Investigations. He was an “unclassified” employee of the State of New Jersey. Hearn was demoted for allegedly violating certain provisions of the State’s anti-discrimination policy.