Retaliation

November 22, 2024

New Jersey Employment Law and Political Speech in the Workplace

The 2024 election is over, but arguments over politics are likely to continue for quite some time. Families might fight about politics at the dinner table, but what happens when political speech enters the workplace? What rights do employees have to speak about matters of political importance at work, and what rights do employers have to limit or restrict such speech? The answer depends, in part, on whether an employer is public or private. Public employers are subject to the First Amendment’s free speech provisions. Private employers are not, but they are still subject to limitations regarding restricting political speech. Federal and New Jersey employment laws allow employees to discuss certain issues at work, some of which may be deemed political.

Public Employers

The First Amendment states, in part, that the government may not “abridg[e] the freedom of speech.” This protection only applies to actions by or on behalf of the government. Public employers, as part of the government, are bound by the First Amendment. This does not mean that public employees have an unlimited right to speak their minds without concern for their jobs.

First of all, public employers have a right to maintain a professional and orderly workplace. Employees do not have a First Amendment right to speak in ways that disrupt their employer’s ordinary operations. This is similar to how governments can regulate the time and place of certain types of speech. A person can hold a rally in a park in the afternoon, for example, but not at 2:00 a.m. on a residential street.
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July 5, 2024

Third Circuit Reinstates New Jersey Employee’s Civil Rights Claim

by Resnick Law Group, P.C.

While federal and New Jersey employment laws offer protections for most employees against a variety of adverse employment actions, public employees have an additional layer of protection from the U.S. and state constitutions. Certain employment actions could violate employees’ constitutional rights, and those employees may be entitled to damages. Section 1983 and the New Jersey Civil Rights Act (NJCRA) allow people to file lawsuits for deprivation of constitutional rights under certain circumstances. This may include rights that other statutes also protect. The Third Circuit Court of Appeals recently ruled in favor of a public employee in a claim alleging retaliation based on his union activities. While the National Labor Relations Act addresses this kind of retaliation, the suit asserts claims under § 1983 and the NJCRA. The Third Circuit reinstated claims that the plaintiff had brought against the county and a former county official.

Both § 1983 and the NJCRA allow individuals to file suit in connection with actions that allegedly deprive them of constitutional rights. The NJCRA also includes alleged interference with the “exercise or enjoyment” of such rights through “threats, intimidation or coercion.” The two statutes only allow lawsuits for actions taken “under color of law.” This generally refers to actions taken in an official capacity or based on the legal authority of one’s public position.

The Third Circuit case examined the lawsuit under several precedent cases that may relate to civil rights claims against employers. In a 2006 ruling, the Third Circuit established a three-prong test for certain constitutional claims based on retaliation. A plaintiff must prove the following:
1. They engaged in constitutionally protected conduct.
2. They faced “retaliatory action” that would “deter a person of ordinary firmness from exercising [their] constitutional rights.”
3. The retaliatory action resulted from the constitutionally protected conduct.
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June 7, 2024

New Jersey Supreme Court Rules That Broad Non-Disparagement Agreements Are Against State Law

by Resnick Law Group, P.C.

Employers often use contractual provisions to prohibit employees from disclosing information about discrimination and harassment claims. Non-disclosure clauses can bar employees from revealing information about legal disputes. Non-disparagement provisions often have a much broader scope, prohibiting negative statements about the other party. These provisions may prevent employees from warning others about their experiences. A New Jersey employment law enacted in 2019, known as the “#MeToo law,” bans non-disclosure agreements in employment contracts and settlements involving harassment, discrimination, or retaliation claims. In May 2024, the New Jersey Supreme Court ruled that non-disparagement agreements also violate this law.

New Jersey law does not specifically define a “non-disparagement agreement.” The New Jersey Supreme Court relied on Black’s Law Dictionary, which defines it as “an agreement…that prohibits criticism by one party on the other.” Non-disparagement agreements might specifically prohibit “defamatory” information, which by definition means that information is untrue. They may also use more generic terms like “harmful to the parties’ business” or “harmful to their business or personal reputation.” Clauses that use this kind of language can bar people from making truthful statements that describe harmful experiences.

The New Jersey Legislature enacted the #MeToo law in the wake of the movement that seeks, in part, to raise awareness of sexual harassment and abuse in workplaces around the world. The law bans non-disclosure agreements in employment contracts and settlement agreements that would prevent people from speaking out about certain violations of antidiscrimination laws. The New Jersey Supreme Court states in its ruling that the law “was enacted in the wake of the ‘#MeToo’ movement to protect individuals who suffer sexual harassment, retaliation, and discrimination from being silenced by settlement agreements and employment contracts.”
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April 1, 2024

U.S. Supreme Court Ruling Takes Employee-Friendly View of Whistleblower Law

by Resnick Law Group, P.C.

When a business engages in fraudulent, unlawful, or criminal activities, employees with inside knowledge of those activities are often the best source of information and evidence. Employees who object to their employers’ conduct might not want to come forward, though, if they could lose their jobs or suffer other employment consequences as a result. New Jersey employment laws at the state and federal levels work to protect these employees, commonly known as “whistleblowers,” by holding employers liable for retaliation. The U.S. Supreme Court recently ruled in Murray v. UBS Securities, a whistleblower case brought under the Sarbanes-Oxley Act of 2002 (“SOX”). This is a federal statute that applies to the financial sector. The court affirmed a trial court’s ruling in the employee’s favor and clarified the burden of proof under the statute.

Congress enacted SOX in response to a series of corporate scandals. The statute addresses recordkeeping and financial disclosure by publicly-traded corporations. It imposes civil and criminal penalties for violations and provides whistleblower protections to encourage employees to report concerns. It prohibits retaliation against employees who engage in certain activities, including:
– Assisting or participating in an internal investigation of suspected wrongdoing under federal fraud statutes or securities regulations;
– Assisting or participating in an investigation by the Securities and Exchange Commission (SEC), Congress, or another federal agency involving alleged fraud or securities violations; and
– Filing a complaint with the SEC.

An employee who alleges unlawful retaliation may bring a lawsuit against their employer after filing a complaint with the Secretary of Labor. The plaintiff has the burden of making “a prima facie showing that [their protected conduct] was a contributing factor in the unfavorable personnel action.” The defendant can obtain dismissal of the lawsuit if it can “demonstrate[], by clear and convincing evidence, that [it] would have taken the same unfavorable personnel action in the absence of that behavior.” This burden of proof was a significant part of the dispute before the Supreme Court in Murray.
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February 16, 2024

EEOC Issues New Proposed Guidance on Workplace Harassment Laws

by Resnick Law Group, P.C.

Harassment in the workplace violates federal and New Jersey employment laws in certain circumstances. The harassment must be based on a protected category like race, sex, or religion. It must negatively impact someone’s employment, such as when it creates a hostile work environment. The Equal Employment Opportunity Commission (EEOC) investigates alleged harassment that violates federal employment laws like the Americans with Disabilities Act of 1990 and Title VII of the Civil Rights Act of 1964. In October 2023, the agency issued a new proposed guidance document on unlawful workplace harassment and sought comments from the public. Should the EEOC decide to issue a final guidance document, it would be the first significant update to its guidance in over twenty years.

When Is Harassment Unlawful?

Offensive conduct rises to the level of unlawful harassment in several situations. First, the conduct must be motivated by a protected characteristic like race or sex. Second, one of the following must apply:
– A worker must endure offensive, unwelcome conduct to maintain their employment;
– The conduct is so severe or pervasive that a reasonable person would consider the work environment to be hostile; or
– The conduct is intended to retaliate against a worker for legally protected activities like reporting alleged discrimination.

What Kinds of Conduct Can Constitute Harassment?

A wide range of behaviors can constitute harassment, including offensive jokes or comments, offensive images or gestures, ridicule, intimidation, threats, or physical assault. It can come from managers, supervisors, co-workers, and non-employees like contractors or customers.
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January 26, 2024

New Jersey False Claims Act Lawsuit Seeks Damages for Alleged Healthcare Fraud

by Resnick Law Group, P.C.

Employees who suspect that their employers are engaging in unlawful acts might hesitate to report what they know for fear of losing their jobs. Federal and New Jersey employment laws address those concerns by prohibiting employers from retaliating against employees, commonly known as whistleblowers, who voice their concerns about allegedly unlawful practices. The federal False Claims Act (FCA) gives whistleblowers an added incentive to go public in cases involving alleged fraud against the federal government. An employee can file a qui tam lawsuit under the FCA on behalf of the United States. The employee is entitled to a percentage of the settlement or award in the case. A lawsuit currently pending in a New Jersey federal court involves a hospital administrator who alleges that his now-former employer defrauded a COVID-19 relief program.

The FCA establishes a civil penalty of $5,000 to $10,000 for various types of false claims and other fraudulent activities targeting the federal government. The government may file suit under the FCA. An individual, known as the “relator,” may file suit on the government’s behalf. Relators are often employees with knowledge of alleged wrongdoing by their employers. The government can intervene and take over the case from the relator. If the government declines to intervene, the relator may continue pursuing the lawsuit on their own.

The relator is entitled to a percentage of any recovery in the lawsuit, whether it comes from a settlement or an award after a trial. If the federal government intervenes and takes over the case, the relator may receive fifteen to twenty-five percent. They are entitled to twenty-five to thirty percent if they pursue the case themselves.
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November 30, 2023

How “Quiet Firing” Might Violate New Jersey Employment Laws

by Resnick Law Group, P.C.

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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