The New Jersey Employment Law Firm Blog

January 4, 2016

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

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 27, 2015

Job Applicant Claims Employment Background Check Violates Federal Law in New Jersey Lawsuit

by Resnick Law Group, P.C.

A putative class action is alleging that an internet retailer conducts background checks of job applicants in violation of federal consumer protection law. Information about individuals’ credit history has become critically important for a wide range of purposes. Background checks for criminal history have long been common in the hiring process, but background checks for credit history have also become widespread. The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., governs access to, use of, and disclosure of consumer credit information for various purposes, including employment. The lawsuit claims that the defendant failed to follow the FCRA’s procedures for use of background information in the hiring process. Feldstein v. Amazon.com LLC, et al., No. 3:15-cv-07322, complaint (D.N.J., Oct. 5, 2015).

The FCRA governs activities by both credit reporting agencies (CRAs), which collect consumer credit information and package it in reports, and individuals and companies that obtain these reports and use them to evaluate individual consumers for various purposes. The FCRA defines a “consumer report” as information collected by a CRA about credit history and various personal details, including criminal history, intended for use in decisions about matters like credit, insurance, or employment. 15 U.S.C. § 1681a(d).

Prior to requesting a report from a CRA, an employer must provide “a clear and conspicuous disclosure…in writing to the” job applicant that they intend to obtain a consumer report, and they must obtain the applicant’s authorization. 15 U.S.C. § 1681b(b)(2). If the employer makes an adverse hiring decision based on information in a consumer report, the FCRA requires it to notify the applicant in advance and provide a copy of the report and a written statement of the applicant’s right to dispute its contents. 15 U.S.C. §§ 1681b(b)(3), 1681g(c).

December 18, 2015

New Jersey Woman Alleges Her Employer Fired Her When She Requested Breastfeeding Breaks

by Resnick Law Group, P.C.

Employment discrimination against a person based on pregnancy, medical conditions associated with pregnancy, or recent childbirth is prohibited under state and federal law. The question of whether employers are obligated to provide reasonable accommodations for pregnant workers, or workers who have recently given birth, however, remains unsettled in many jurisdictions. The Fair Labor Standards Act (FLSA) requires employers to allow workers who are breastfeeding their newborns to express breast milk at work, a process that requires a sanitary and private environment. This federal statute does not apply to smaller employers, however, and New Jersey has no statute specifically addressing the issue. The termination of a woman from her job earlier this year, allegedly based on her request for additional breaks during the work day to express milk, has brought renewed attention to this issue.

The Americans with Disabilities Act (ADA) of 1990 requires employers to provide “reasonable accommodations” for workers with disabilities. 42 U.S.C. § 12112(b)(5). Pregnancy is not, by itself, considered a disability under the ADA, but the Pregnancy Discrimination Act (PDA) of 1978 prohibits employers from treating a pregnant employee differently from an employee with a comparable temporary disability. A prohibition on discrimination is different, however, from an obligation to accommodate an employee’s condition. The ADA Amendments Act (ADAAA) of 2008 expanded the definition of “disability” to include many conditions commonly associated with pregnancy, to the extent that they “substantially limit[] a major life activity.” 29 C.F.R. Appendix to § 1630.2(h).

Denying an employee the opportunity to express breast milk while at work does not constitute pregnancy discrimination under the PDA, nor is it a disability for which an employer must make an accommodation under the ADAAA. The Patient Protection and Affordable Care Act (ACA) of 2010 offers some protection. It amended the FLSA to require employers to allow “reasonable break time” for breast milk pumping for up to one year after the child’s birth, and to provide employees with a private location “other than a bathroom” to do so. 29 U.S.C. § 207(r)(1).

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.

November 25, 2015

Pop Singer Sues Producer for Sexual Harassment, Other Claims; Producer Counter-Sues for Extortion

by Resnick Law Group, P.C.

The field of employment law extends beyond claims under statutes like the Fair Labor Standards Act or the New Jersey Wage and Hour Law. Employment law includes almost any legal issue involving an employer-employee relationship or almost any similar relationship. A pair of lawsuits between a pop singer and her producer demonstrate how “employment law” can encompass a wide range of issues. No express employer-employee relationship exists in the cases, but the singer’s lawsuit alleges that the producer has made it essentially impossible for her to work. The producer responded by filing his own lawsuit, alleging breach of contract and other claims.

The singer, who uses the stage name “Kesha” and previously used the name “Ke$ha,” has built a rather extensive body of work as a singer, songwriter, and performer. She released her first full-length album in 2010, but her career has been less active in recent years. She attributes that apparent slowdown in her career to a conflict with her producer, who does business under the name “Dr. Luke.”

In her complaint, Kesha states that she first signed a contract with Dr. Luke in 2005, when she was 18 years old. She alleges that he “has sexually, physically, verbally, and emotionally abused” her for the past decade, “to the point where [she] nearly lost her life.” Sebert v. Gottwald, et al., 1st am. complaint at 2 (Cal. Super. Ct., L.A. Co., Jun. 8, 2015). The allegations include “sexual advances” and “forc[ing her] to take drugs and alcohol in order to take advantage of her sexually while she was intoxicated.” Id. at 7. The “abuse and control” allegedly continued after she got her “big break” in 2010. Id. at 8. She also alleges numerous acts by the producer that have hindered her career in recent years, such as by preventing her from releasing albums or touring.

November 20, 2015

Non-Competition Agreements Under New Jersey Law

by Resnick Law Group, P.C.

The relationship between an employer and an employee is not nearly as simple as an exchange of labor for wages. It involves a complicated set of interests that frequently come into conflict with one another. Employees often gain valuable skills and information during the course of their employment with a particular business, and any business has an interest in preventing competition. Some employers require their employees to sign an agreement restricting their ability to work for a competitor during or after their term of employment. This could be a separate agreement or a clause in an employment contract. While this sort of agreement clearly benefits an employer, employees need to be able to earn a living in their field. New Jersey courts strictly limit the enforceability of non-competition agreements, sometimes called “non-competes.”

Known as a “restrictive covenant” in formal legal terms, a typical non-compete states that an employee may not accept employment from any competitor of the employer, typically within a defined geographic area and for a defined period of time. Employers may be able to obtain injunctive relief and monetary damages against a former employee who violates a non-compete. While non-competes have long appeared in employment contracts for jobs that involve high levels of education, training, or experience, they are reportedly becoming more common in a much wider range of jobs—including sandwich makers and summer camp counselors. As non-competes have become more common, so has litigation challenging their enforceability.

As of the summer of 2015, only four states have enacted statutes banning or severely limiting non-competes. See Cal. Bus. & Prof. Code § 16600; Haw. Rev. Stat. § 480-4(d) (as amended by H.B. 1090, eff. Jul. 1, 2015); N.D. Cent. Code § 9-08-06; 15 Okla. Stat § 15-219A. New Jersey has no statute dealing with the issue, but New Jersey courts have established a set of criteria for determining whether a non-compete is enforceable. Courts will only enforce a non-compete if, first and foremost, it limits the ban on competition to a reasonable geographic area for a reasonable time period. Community Hosp. Group, Inc. v. More, 869 A.2d 884 (N.J. 2005); Solari Industry v. Malady, 264 A.2d 53, 56 (N.J. 1970); Whitmyer Bros., Inc. v. Doyle, 274 A.2d 577 (1971).

November 12, 2015

Digital Journalists in New York Vote to Unionize, Face Opposition from Publication

by Resnick Law Group, P.C.

The digital newsroom at the cable and satellite news network Al Jazeera America (AJAM) voted on whether to unionize in late September 2015. A tally of the votes in early October showed that the vote was overwhelmingly in favor of unionizing, with 32 people voting in favor and five voting against. The journalists will become members of the News Guild of New York (NGNY), which has represented print journalists since the 1930s and has recently begun a major effort to support digital journalists who want to organize. Digital journalists at web publications like Salon, Gawker, and Vice have also recently voted to unionize. AJAM opposed the journalists’ unionization vote and has announced its intention to dispute the eligibility of some who participated in the vote.

The National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., protects the right of employees to organize in order to engage in collective bargaining with the management of their employers. See 29 U.S.C. § 157. The law applies to most employers in the country, defining “employer” as almost any person or organization that employs people, except for the U.S. government, state and local governments, Federal Reserve Banks, and businesses subject to the Railway Labor Act (45 U.S.C. § 151 et seq.). 29 U.S.C. § 152(2). Labor unions, when they act as employers, are also subject to the NLRA. The law created the National Labor Relations Board (NLRB) to enforce its provisions.

AJAM, which is headquartered in Manhattan, launched in 2013 as a competitor to cable news networks like CNN, Fox News, and MSNBC. On September 3, 2015, a majority of employees in the network’s digital newsroom asked the company to voluntarily recognize the NGNY as their representative for collective bargaining purposes. Employees described “a troubling lack of transparency, inconsistent management, and lack of clear redress” from their employer. After several weeks, the company reportedly declined to grant the requested recognition to the union, which led to the employees’ vote.

November 5, 2015

Employment Lawsuit in New Jersey Claims Disability Discrimination Based on Obesity

by Resnick Law Group, P.C.

A New Jersey federal lawsuit, Clem v. Case Pork Roll Co., No. 3:15-cv-06809, complaint (D.N.J., Sep. 11, 2015), alleges unlawful discrimination on the basis of disability under the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12101 et seq., and the New Jersey Law Against Discrimination (NJLAD), N.J. Rev. Stat. § 10:5-1 et seq. The case raises two important points regarding disability discrimination. First, the alleged disability in question is obesity and certain related conditions. No court has ever found obesity, in and of itself, to be a disability covered by the ADA, but recent amendments to that law, as well as court decisions and other developments, raise the possibility that conditions related to obesity could qualify. Additionally, the plaintiff’s husband, not the plaintiff, is the one with the alleged disability, but the ADA allows family members to assert claims in certain circumstances.

The plaintiff’s statement of the case includes a number of unpleasant physical details related to her husband’s condition. She states that her husband worked as the comptroller for the defendant, a pork product manufacturing and distribution company. In 2008, the defendant hired her as a part-time administrative assistant for her husband.

According to the complaint, the plaintiff’s husband, who weighed about 420 pounds at the time, underwent gastric bypass surgery in October 2010. This resulted in multiple side effects, including “extreme gas and uncontrollable diarrhea.” Clem, complaint at 3. The symptoms grew worse, the plaintiff claims, in 2013, resulting in numerous complaints from the company’s president to her and her husband. Both the president and the owner allegedly began harassing the plaintiff about her husband’s condition. The company terminated the plaintiff’s husband at the end of February 2014, and the plaintiff resigned the same day.

October 27, 2015

New Jersey Appellate Court Rules on Enforceability of Employee Arbitration Agreements

by Resnick Law Group, P.C.

Arbitration clauses, by which the parties to a contract agree to submit disputes to an arbitrator or arbitration panel before filing suit, or in lieu of litigation entirely, are becoming increasingly common in both consumer and employment contracts. Arbitration is a form of alternative dispute resolution (ADR) that has some similarities to the litigation process, but it is conducted almost entirely outside the court system. The New Jersey Appellate Division recently issued a ruling that clarifies the requirements for the validity of an arbitration clause in an employment contract, holding that the clause must state a “clear and unmistakable” waiver of an employee’s right to a jury trial. Milloul v. Knight Capital Group, et al., No. A-1953-13T2, slip op. at 15 (N.J. App., Sep. 1, 2015).

New Jersey courts, as a matter of policy, encourage litigants and prospective litigants to use arbitration and other ADR methods. The New Jersey Arbitration Act, N.J. Rev. Stat. § 2A:23B-1 et seq., sets basic guidelines for arbitration. A neutral third party, known as an arbitrator, reviews both sides’ claims and defenses, and he or she may conduct a proceeding that is similar to a trial before rendering a decision. Arbitrators are often former judges with experience in conducting trials, as well as training and certification through various private arbitration organizations. State and federal laws do not require licensing for arbitrators the way they do for attorneys and other professionals, although courts may set their own criteria.

Some arbitration clauses state that the result of an arbitration is binding on the parties. In that case, a court’s authority over the matter is limited to ratifying the arbitration decision, unless it finds evidence of fraud, bias, or misconduct during the arbitration process. See N.J. Rev. Stat. §§ 2A:23B-22, 23, 24. When an arbitration clause appears in an employment contract, much as when one appears in a consumer contract, the employee is often not in a position to negotiate the details of the clause, due to both a lack of bargaining power and a lack of understanding of what the clause means. Arbitration clauses are the subject of much criticism, partly because of this disadvantage.

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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