Recent Case Law

FIRST AMENDMENT FREE SPEECH PROTECTION WON’T PROTECT YOU FROM BEING FIRED FOR AN INSENSITIVE SOCIAL MEDIA POST

Published on: May 24, 2022 | by Mashel Law, L.L.C.

Be careful what you post on social media sites on the internet because it may cost you your job. Recently, our New Jersey Appellate Division issued an opinion holding that neither the First Amendment nor Article I, paragraph 6 of the New Jersey Constitution prevents a private employer from terminating an at-will employee for posting racially insensitive comments about the Black Lives Matter (BLM) movement on her personal Facebook account.

In McVey v. AtlantiCare Medical System Incorp, et al., 2022 N.J. Super. LEXIS 70 * (App. Div., May 20, 2022), McVey, a nurse who rose through the ranks at Atlantic Care Regional medial Center to become its Corporate Director of Customer Service. Using her private Facebooks account, McVey posted that she found BLM to be racist arguing that it causes segregation writing, “Have you ever hear[d] of ‘white lives’ matter or ‘[J]ewish’ lives matter[?] No. Equal opportunity.” According to the court opinion she further stated: “[T]hey are not dying . . . they are killing themselves.” McVey later posted that she “support[ed] all lives . . . as a nurse they all matter[,] and [she] d[id] not discriminate.” McVey added she did “not condone the rioting that ha[d] occurred in response to ‘this specific [B]lack man[‘]s death.'” *5. An AtlantiCare administrator later discovered McVey’s Facebook posts and she was later fired following the completion of an internal investigation.

McVey filed a wrongful discharge lawsuit claiming she was unlawfully punished for exercising her federal and state constitutional rights to freedom of speech. AtlantiCare filed a motion to dismiss arguing that a wrongful termination complaint against a private employer cannot be based on a constitutional free speech claim in cases where, as here, there is no state action. *6-*7. Following argument, the trial court rendered an oral decision, accepting AtlantiCare’s contention and dismissing McVey’s complaint. McVey appealed.

EMPLOYEES ALLEGING TO BE THE VICTIM OF A DISCRIMINATORY HOSTILE WORK ENVIRONMENT WHO ENGAGE IN THE SAME COMPLAINED OF BEHAVIOR ARE LESS LIKELY TO PREVAIL.

Published on: May 5, 2022 | by Mashel Law, L.L.C.

Our Appellate Division recently made clear it would not be receptive to sex based hostile work environment claims where it is established that the Plaintiff “gave as good as she got” while working in an environment rife with foulmouthed name calling and invectives. In Bouziotis v. Iron Bar, 2022 N.J. Super. Unpub. LEXIS 635, at *2 (App. Div. Apr. 19, 2022) an appellate court affirmed a trial court’s decision to grant the employer’s motion for summary judgement against a former female employee who alleged she was the victim of a hostile work environment based on her sex.

In September 2016 the Plaintiff-Employee, Lauren Bouziotis (“Bouziotis”) started working as a part-time bartender for Defendant-Employer Iron Bar (“Iron Bar”). Id. Shortly thereafter, Iron Bar’s part owner, Darrell Remlinger (“Remlinger”) stopped addressing Bouziotis by her proper name and instead started referring to her by “alternate names” used to describe someone with an oversized posterior or buttocks area. Id. Curiously, the court felt that it would be too insensitive of it to actually state in its written decision what the “alternate name” used was.

Specifically, Remlinger used “alternative names” to refer to Bouziotis when publishing the weekly schedule, as well as on six out of forty of Bouziotis’s pay envelopes. In February 2017 Bouziotis complained about Remlinger calling her “alternate names” to General Manager Dave Monllor (“Monllor”), who also reported to Remlinger. Over the course of a year Bouziotis had complained approximately complained thirty (30) times to Monllor. However, Bouziotis never directly asked Remlinger to stop addressing her by these “alternate names.” In May 2018, Bouziotis submitted her two-week notice and a letter of resignation. Bouziotis’s resignation letter failed to state a reason for her resignation nor did the letter make any mention of Bouziotis’s belief she was the victim of sex discrimination. Afterwards, Bouziotis nevertheless proceeded to file a lawsuit against Iron Bar. Bouziotis alleged in her filed complaint that she was the victim of discrimination and wrongful termination, hostile work environment, retaliation, and aiding and abetting harassment under the LAD. Id. at *3. Ironbar answered and subsequently moved for summary judgement as a matter of law against Bouziotis’s claim. Id.

A BAD FAITH INTERNAL INVESTIGATION MADE AGAINST AN EMPLOYEE MAY CONSTITUTE AN ADVERSE EMPLOYMENT ACTION UNDER NEW JERSEY’S WHISTLEBLOWER LAW

Published on: March 24, 2022 | by Mashel Law, L.L.C.

Retaliatory adverse employment actions are not only limited to termination. If an employer engages in a bad faith or a sham internal investigation against an employee after the employee blew the whistle about conduct, he or she reasonably believed violated the law, was fraudulent, or was contrary to public policy, such an employee may have a viable claim under New Jersey’s Conscientious Employee Protection Act (“CEPA”). Generally, New Jersey state courts have held that an employer’s investigation of an employee does not in itself constitute a “retaliatory action.” Beasley v. Passaic City., 377 N.J. Super. 585, 608 (App. Div. 2004). However, if an employee makes a strong showing that an investigation was illegitimate or in bad faith, then the investigation may qualify as an “adverse employment action,” permitting the aggrieved employee to file an affirmative CEPA claim. Id.

To establish a prima facie CEPA claim, a plaintiff must satisfy four elements:

(1) that he . . . reasonably believed that his . . . employer’s conduct was violating either a law or a rule or regulation promulgated pursuant to law;

TO TRIGGER THE PROTECTIONS OF THE FAMILY MEDICAL LEAVE ACT AN EMPLOYEE NEED ONLY INFORM AN EMPLOYER THAT THEY ARE SUFFERING FROM A SERIOUS MEDICAL CONDITION

Published on: December 16, 2019 | by Mashel Law, L.L.C.

The Family and Medical Leave Act (“FMLA”) allows eligible employees to take up to twelve (12) workweeks of leave in any twelve-month period if a “serious health condition . . . makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). Therefore, it is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right” that the FMLA affords. 29 U.S.C. § 2615(a)(1). However, for an employee to invoke their right to FMLA leave, he or she must first show they provided their employer with legally sufficient notice of their need for FMLA leave. Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 401 (3d Cir. 2007). Furthermore, while “[t]he regulations provide some guidance as to what sort of notice is sufficient[,] [i]t is clear that an employee need not give his employer a formal written request for anticipated leave.” Id. at 402. “[T]he employee need not use any magic words… [only] reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA.” Id.; 29 C.F.R. § 825.302(c); See also Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1049 (8th Cir. 1999) (employees don’t need to specifically mention FMLA leave, only that leave is needed or may be needed).

Recently, the United States District Court of New Jersey in Cipully v. Lacey Twp. Sch. Dist., 2019 U.S. Dist. LEXIS 206442, (Decided Nov. 27, 2019), was presented with the question of whether an employee is entitled to FMLA benefits if they inform their employer of their serious health condition, but never explicitly request or state a need for time off, but rather continue to report to work. In Cipully, plaintiff was a school district employee who gave her supervisor advance notice that she was scheduled for spine surgery and would need some time off for the surgery and to convalesce. Her supervisor permitted Cipully to take leave “so long as [she] return[s] before school starts.” Even though her doctor did not release her to return to work by the time school started, Cipully returned any way, claiming she felt intimidated by her employer to do so.

After returning to work, Cipully informed her employer on numerous occasions that she was still in pain and that her doctor had not approved her return to work. Id. at *2. However, she never made another request to take off from work or stated that she needed or may need to take time off from work because of her back condition. Soon after, Cipully’s employment was terminated for alleged “poor performance and inappropriate conduct.” Cipully sued the Lacey Twp. Board of Education (LBOE) alleging, amongst others, that her firing was in retaliation for her attempting to take FMLA leave. The LBOE immediately moved to dismiss her complaint arguing, “that because the Complaint contains no allegations that Plaintiff unequivocally requested and was denied FMLA leave, Plaintiff’s allegations are insufficient to establish proper notice of her intention to take such leave.” Id. at *4.

NEGATIVE PERFORMANCE REVIEWS ALONE MAY BE ENOUGH TO CONSTITUTE ADVERSE EMPLOYMENT UNDER NEW JERSEY’S WHISTLEBLOWING LAW.

Published on: December 9, 2019 | by Mashel Law, L.L.C.

New Jersey’s whistleblowing law is known as the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. (“CEPA”). To prove a CEPA case, an employee must show that because they disclosed, objected, and/or or refused to participate in activities engaged in by their employer or their coworker(s) that they reasonably believed to be a violation of law, were fraudulent or were contrary to public policy, they suffered an adverse employment action. CEPA defines an adverse employment action, i.e., to be a “discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.” N.J.S.A. 34:19-2(e). Although our courts in New Jersey recognize that retaliatory action can take the form of “many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct.” Green v. Jersey City Bd. of Educ., 177 N.J. 434, 447 (2003), the question of whether the issuance of poor performance evaluations may be viewed as an adverse employment action under CEPA is not so clear.

The courts in New Jersey did not always consider an employee who received poor performance evaluations to have suffered retaliation under CEPA. See Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366 (2002) (finding negative performance evaluations were not an adverse employment action where plaintiff was told her job was safe). However, for repeated negative performance evaluations to qualify as an adverse employment action under CEPA, our historically an employee to either 1) prove that the evaluation(s) were used as the direct basis for their termination, suspension, demotion or reduction in pay/benefits; or 2) show that the evaluation(s) was so harsh, unjust, and offensive that it caused them to suffer severe physical or psychological symptoms which forced them to take a leave of absence or resign. Id.; See also Green v. Jersey City Bd. of Educ., 177 N.J. 434 (2003); Donelson v. DuPont Chambers Works, 206 N.J. 243 (2011)

Recently, however, the Unites District Court of New Jersey in Goode v. Camden City Sch. Dist., U.S. Dist. 2019 LEXIS 203303 (November 22, 2019), held that negative performance reviews alone may be enough to constitute an adverse employment action under CEPA. In Goode, the plaintiffs were teachers who sued their school district, as well as their respective individual principals, for violations of CEPA and other statutes. They alleged that the superintendent implemented a policy to use a new evaluation system as pretext to pressure teachers over the age of forty (40) to retire. Id. at *4. Under the new evaluation method, superintendents were required to forward tenure charges of inefficiency to the Commissioner of Education if they received consecutive annual teacher performance evaluations with scores of “partially effective” or “ineffective.” The teacher as then subject to being terminated, suspended, demoted, or receive a deduction in pay/benefits if the Commissioner sustained the tenure charges.

THE THIRD CIRCUIT MAKES CLEAR THAT BEFORE PROVIDING AN ACCOMMODATION FOR AN EMPLOYEE’S DISABILITY, AN EMPLOYER MUST ENGAGE THE EMPLOYEE IN A GOOD FAITH INTERACTIVE PROCESS TO IDENTIFY AVAILABLE REASONABLE ACCOMMODATIONS

Published on: September 23, 2019 | by Mashel Law, L.L.C.

The Americans with Disabilities Act of 1990 (“ADA”) protects physically and mentally disabled employees from discrimination. Under the ADA, employers who fail to provide reasonable accommodations to people with disabilities may be found liable for discrimination. See Colwell v. Rite Aid Corp., 602 F.3d 495, 504-05 (3d Cir. 2010). As a rule, courts generally construe the New Jersey Law Against Discrimination (LAD) more liberally than the ADA. See Failla v. City of Passaic, 146 F.3d 149, 154 (3d Cir. 1998) (noting that LAD provides a ‘lower standard’ than ADA because ‘the LAD definition of ‘handicapped’ does not incorporate the requirement that the condition result in a substantial limitation on a major life activity’)

When an employee notifies an employer of their disability and requests accommodations, employers are obligated to engage in a good faith interactive process with them in identifying reasonable accommodations. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 319 (3d. Cir. 1999). In fact, according to a recent Third Circuit decision in Lewis v. Univ. of Pa., 2019 U.S. App. LEXIS 23818 (3^rd Cir. 2019), an employer cannot arrive at an accommodation for an employee’s disability without first seeking and considering in good faith the employee’s input.

In Lewis, a University of Pennsylvania (“UPenn”) Police Officer suffered from the skin condition Pseudofolliculitis Barbae (“PFB”). PFB is a common condition of the beard area occurring in up to 60% African American men and other people with curly hair. The problem results when highly curved hairs grow back into the skin causing inflammation and a foreign body reaction; often this takes the form of keloidal scarring. https://www.aocd.org/page/PseudofolliculitisB. Because of his PFB condition, Lewis requested UPenn to accommodate his disability by permanently exempting him from their grooming policy requiring him to periodically shave his face and neck.

THIRD CIRCUIT SAYS UBER DRIVERS MAY BE EXEMPT FROM ARBITRATION AGREEMENTS IF THEY CAN SHOW THEY ARE ENGAGED IN INTERSTATE COMMERCE

Published on: September 17, 2019 | by Mashel Law, L.L.C.

Employment Arbitration Agreements typically force employees to resolve legal disputes with their employer through an opaque process controlled by a privately retained arbitrator, rather than publicly through our relatively transparent jury-based court system. These privately retained arbitrators often favor the large corporation employers who provide them repeat business as opposed to the typical “one and done” worker. Further, arbitrators are not bound by the same rules, legal precedents, and public oversight that judges are when making their decisions. Usually the only issue of arbitration that can be resolved by our courts is the “gateway dispute about whether the parties are bound by a given arbitration clause” Howsam v. Dean Witter Reynold, 537 U.S. 79, 84 (2002), that is, whether the parties entered into a valid and binding arbitration agreement.

In a limited response to the unfairness forced arbitration agreements impose on employees, Congress included a provision in the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16 exempting certain employees from its authority. Section 1 of the FAA provides that “nothing herein shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign interstate commerce.” Id. Our courts often hold that transportation workers fall into the “class of workers engaged in foreign interstate commerce” that are excluded from FAA coverage, and thus are not bound by arbitration agreements. However, recently, in Singh v Uber Techs. Inc., 2019 U.S. App. the Third Circuit was asked to determine the limits of this exemption.

In Singh, an Uber driver in New Jersey brought a class action lawsuit in District Court against Uber for misclassifying their drivers as independent contractors as opposed to employees claiming such a misclassification deprives the drivers from receiving overtime pay. Based on an arbitration agreement between the parties, Uber moved the District Court to dismiss the case under the FAA and have Singh resolve the matter by bringing it to an arbitrator. Singh argued that the District Court did not have the authority to compel arbitration under the FAA as he was a transportation worker excluded from FAA coverage as “any other class of worker engaged in interstate foreign commerce” under Section 1. Uber argued, and the District Court agreed, that only transportation workers that transport goods, not those who transport passengers, are excluded by the residual clause of Section 1 in the FAA. Id. at *13. (“a court must be satisfied that this clause does not apply before making an order that the parties proceed to arbitration”).

AN EMPLOYEE HANDBOOK MAY CREATE AN ENFORCEABLE CONTRACT

Published on: February 23, 2018 | by Mashel Law, L.L.C.

Many mid-level to large companies use an attorney handbook or direct employees during the new hire onboarding process to an employee intranet site where the employer communicates its company philosophy, policies, procedures, behavioral expectations, and worker benefits. The question often raised by employees is whether the employer is legally bound to fulfill the representations made in the handbook. Typically, not so long as the employer prominently displays a disclaimer in the handbook making clear the relationship between employer and employee is strictly a noncontractual at-will relationship, meaning the company has the right to terminate the employment relationship at any time, for any reason, or for no reason whatsoever. See generally Woolley v. Hoffman-La Roche, 99 N.J. 284 (1985). However, a recent unpublished New Jersey Appellate Division decision states that depending on the wording of the handbook disclaimer, an inroad may exist for employees to argue that the handbook disclaimer does not serve to waive an employee’s right to claim that the employer violated its policies or code of conduct by failing to put a stop to the employee being harassed or bullied in the workplace. Maselli v. Valley National Bancorp., No. A-0440-16T1, Super. Ct. N.J. slip op. (Oct. 2, 2017)

Most employees in the country are hired on an “at-will” basis. This means an employee can be fired for any reason (or no reason) so long as the reason does not violate, law, public policy, or a valid contract. English v. College of Medicine & Dentistry, 73 N.J. 20, 23 (1977). Prior to 1985, a handbook was viewed as not creating either an express or implied contractual promise whether a disclaimer was placed in the handbook or not. In Woolley, supra., the New Jersey Supreme Court held that a provision contained in the employee handbook converted the plaintiff’s employment from at-will employment to for-cause, and was enforceable against the employer. 99 N.J. 284, 289. The Court looked to the reasonable expectations of the employee and found that the handbook constituted a unilateral contract, the consideration being continued employment after receiving the handbook. Id. at 295. Woolley opened the door for various contract claims regarding different provisions of employee handbooks. However, Woolley also made clear that an employer could avoid liability for the representations and promises if it placed in the handbook a “clear” and “prominent” disclaimer explaining the policies in the handbook do not constitute a contract. Id. at 285.

In Maselli, supra., the plaintiff on appeal of a motion dismissing her complaint, argued that her former employer’ s handbook disclaimer was not worded in a manner sufficient to prevent her from pursuing a breach of contract claim stemming from her employer’s repeated failure to enforce anti-harassment provisions contained within its Code of Ethics. Although the appellate court agreed with the former employer that its disclaimer was sufficient to bar breach of contract claims related to a termination of employment (i.e., security of employment), the court found the disclaimer language sufficiently ambiguous as to make the employee’s interpretation of the disclaimer plausible, that is, the disclaimer did not bar claims for failure to enforce an anti-harassment policy established by the Bank’s Code of Ethics during her employment. Id. at * 3. An ambiguity in a contract should be resolved against the party drafting the contract, and in favor of the employee’s interpretation of the disclaimer language. In Re Miller, 90 N.J. 210, 221 (1982). A lesson to be drawn from Maselli is that when an employee claims he or she has been bullied and harassed on the job by their boss, but the harassment was not motivated by a discriminatory animus or whistleblowing retaliation, the employer’s handbook, code of ethics, and/or conduct needs to be closely read to determine whether the disclaimer language contained within it provides an opening to allege in good faith a breach of contract claim.

EMPLOYEES NEED NOT PROVE ACTUAL OR CONSTRUCTIVE DISCHARGE IN ORDER TO RECOVER UNDER NEW JERSEY’S WHISTLEBLOWER LAW

Published on: November 2, 2016 | by Mashel Law, L.L.C.

A constructive discharge occurs when conditions at work become so unlawfully and intolerably hostile an employee is left with no choice but to resign. Previously, to recover under New Jersey’s Whistleblower Law – the Conscientious Employee Protection Act (CEPA) – a litigant was required to prove actual or constructive discharge. This changed when the New Jersey Supreme Court in Donelson v. DuPont Chambers Works expanded the scope of liability and broadened potential litigants’ avenues of recovery in holding that an employee who files suit under CEPA may recover back and front pay, even if the employee was not fired or constructively discharged. This can be done if the employee shows he or she became mentally disabled because of the employer’s retaliation. Such retaliation typically takes the form of a hostile work environment.

In Donelson, Plaintiff, John Seddon, a thirty-year employee of DuPont Chambers Works, filed complaints with DuPont management and the Occupational Safety and Health Administration regarding unsafe conditions in the workplace. Seddon believed that after he engaged in whistleblowing activities, DuPont retaliated by placing him on an involuntary short-term disability leave. Following his return to work, DuPont required that Seddon work twelve-hour shifts in an isolated work assignment, a requirement that he characterized as “torture.” Consequently, Seddon sought psychiatric treatment and took a voluntary six-month leave of absence. After his six-month leave, Seddon retired with a disability pension from DuPont.

In his lawsuit, Seddon alleged that DuPont retaliated against him for complaining about workplace safety concerns, and as result of DuPont’s retaliatory actions, he suffered a mental breakdown rendering him unable to hold gainful employment. Following a trial, a jury rendered a verdict in favor of Seddon awarding him $724,000 for economic losses and $500,000 in punitive damages. However, on appeal the Appellate Division reversed, determining a lost wage claim under CEPA is not cognizable unless actual or constructive discharge was proved.

NEW JERSEY HIGH COURT HOLDS THAT LAD PLAINTIFF CAN PROVE DISABILITY WITH TREATING PHYSICIAN TESTIMONY.

Published on: May 17, 2016 | by Mashel Law, L.L.C.

Victims of disability discrimination no longer need to shoulder the burden and high expense of retaining a pricey medical expert to come to court to render an opinion establishing their physical, mental and/or emotional disability in question; they can now use their treating doctor for this purpose. So said our New Jersey Supreme Court in a recently decided case entitled Delvecchio v. Township of Bridgewater, — N.J. —, 2016 N.J. LEXIS 335 (2016) where the Court affirmed the reversal of a jury’s verdict of no cause of action against a former dispatcher of the Township of Bridgewater Police Department (the “Bridgewater PD”).

In 2003, Mrs. Delvecchio developed inflammatory bowel syndrome (“IBS”), and began treatment with Dr. Gary Ciambotti (Ciambotti), a gastroenterologist. Dr. Ciambotti wrote to plaintiff’s supervisors and stated that her symptoms were under control as long as she worked regular daytime hours, but would be exacerbated by an assignment to the midnight shift. After repeatedly declining assignments to the midnight shift, Mrs. Delvecchio was asked to resign from her position. She then accepted a lower-paying job as a records clerk for the Township. Plaintiff used more than her allotted sick days, and the Township terminated her employment.

Thereafter, Mrs. Delvecchio filed a New Jersey Law Against Discrimination (the “LAD”) disability discrimination complaint against the Township, Bridgewater PD and individual defendants. She contended, among other claims, that her IBS constituted a disability for purposes of LAD and that defendants failed to provide a reasonable accommodation for that disability when they set the schedule for her work as a police dispatcher. Mrs. Delvecchio disclosed in pretrial discovery that she intended to present the testimony of Dr. Ciambotti to establish his diagnosis of IBS. However, the trial court barred the testimony of Dr. Ciambotti on the grounds that he had not been retained and identified by plaintiff in pretrial discovery as an expert witness and had not prepared an expert report containing his findings. Without the testimony of a physician establishing the nature and extent of her disability, the jury was left with no choice but to conclude that Mrs. Delvecchio had failed to establish that she had a disability preventing her from working midnight shifts.