Unlawful Termination

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.

SECONDHAND OFFENSIVE COMMENTS IN THE WORKPLACE MAY CREATE A HOSTILE WORK ENVIRONMENT

Published on: April 22, 2022 | by Mashel Law, L.L.C.

If you are a New Jersey employee and you overhear or learn secondhand that someone is using offensive language to disparage you or others based on protected class characteristics such as race, age, sex, disability, sexual orientation, etc., you may qualify as a victim of a discriminatory based hostile work environment under New Jersey’s Law Against Discrimination (the “LAD”). This may be true even if the prejudiced language is not directed at a protected class you are a member of.

Generally, when a Plaintiff-Employee alleges a hostile work environment under the LAD based on a legally protected class characteristic (i.e., age, race, sex, national origin, etc.) The Plaintiff-Employee must demonstrate that the Defendant-Employer’s conduct,

(1) would not have occurred “but-for” the Plaintiff-Employee’s protected characteristic,

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.

Time’s Up For Sexual Harassers and Employers Who Enable Them

Published on: February 2, 2018 | by Mashel Law, L.L.C.

America is in the middle of a social reckoning. Brave women are standing up and telling their stories of sexual harassment, assault, or other abuses by men in positions of power through use of the hashtag, #MeToo. The #MeToo movement, focused primarily on sharing stories of abuse, evolved into a call for action and female empowerment aptly named #TimesUp. Although there has long been legal recourse found in our federal and state law for victims of sexual harassment in the workplace and/or victims of retaliation for reporting it, women today are being believed and vindicated on a larger scale than ever seen before. Here in New Jersey, our Law Against Discrimination (LAD) employees protects women and men alike from sexual harassment in the workplace. There are two kinds of sexual harassment: (1) quid pro quo, which is an agreement or an offer to receive a benefit (promotion, raise, continued employment, etc.) in exchange for the performance of sexual favors; or (2) a sexually hostile work environment, where, for example, a co-worker makes unwelcome and offensive sexual comments and/or advances. Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993). Any person who aids, abets, or otherwise assists in the harassment is in violation of the LAD. N.J.S.A. 10:5-12(e).

To prove the existence of a hostile work environment under the LAD, an employee must demonstrate that the conduct in question was unwelcome, that it occurred because of his or her sex, and that a reasonable person of the same sex would consider it sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment. Id. However, a victim of harassment should be mindful that the LAD is not intended to be “a ‘general civility’ code” for conduct in the workplace.'” Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 73 (App. Div. 2004) certif. denied, 183 N.J. 213 (2005). “‘[D]iscourtesy or rudeness should not be confused with [protected status-based] harassment.'” Ibid.

The LAD expressly protects workers from retaliation for having reported sexual harassment of themselves or coworkers. This includes retaliation in the form of a hostile work environment, demotion, failure to promote, transfer, cut in pay or benefits, unpaid suspension, wrongful discharge, or even “constructive discharge”. A constructive discharge occurs when an employer takes no official action, but creates a work environment so hostile and unbearable that a reasonable employee would have no choice but to resign.

Employer’s Cannot Avoid Liability under New Jersey’s Disability Discrimination Laws by Arbitrarily Dictating What Constitutes An Essential Job Function

Published on: August 21, 2017 | by Mashel Law, L.L.C.

Under the federal American with Disabilities Act (“ADA”), and the New Jersey Law Against Discrimination (“LAD”), a disabled employee is entitled to be reasonably accommodated by their employer so long as to do so does not create an undue hardship for the employer or coworkers. However, for an employee to be entitled to a reasonable accommodation for a disability, the ADA and LAD requires that the disabled employee can perform the essential functions of their job with or without an accommodation. Put differently, an employer is not required to accommodate an employee who cannot perform his or her essential job functions even with an accommodation. Hennessey v. Winslow Township, 368 N.J. Super. 443, 452 (App. Div. 2004), aff’d, 183 N.J. 593 (2005).

What constitutes an “essential function” requires a very fact specific determination. To do so, the U.S. Equal Employment Commission suggests the following factors be considered: (1) the employer’s job descriptions; (2) whether the position exists to perform that function specifically; (3) the experience of employees who actually hold that position; (4) the time spent performing the function; (5) the consequences of not performing the function; (6) whether other employees are available to perform the function, and; (7) the degree of expertise or skill required to perform the function. However,when looking at the job description factor, the New Jersey Supreme Court in Grande v. Saint Clare’s Health Sys., Nos. A-67, 076606, 2017 N.J. LEXIS 746, at *1 (decided July 12, 2017) recently reaffirmed that an employer cannot arbitrarily define which requirements are “essential” job functions.

Maryanne Grande (“Grande”) was a Registered Nurse who suffered repeated injuries while working at Saint Clare’s causing damage to her shoulders and neck. Following her last medical leave, Grande was cleared by her doctor to return to full-duty. However, before permitting her to do so, Saint Clare’s required Grande to undergo and pass a functional capacity evaluation (an FCE). The FCE concluded that Grande was fit to perform medium category work (occasional lift and work up to 50 lbs.) with certain job alterations to avoid prolonged or repetitive neck movements, and required assistance when performing patient transfers or guarding patients or handling loads greater than 50 pounds. Thereafter, Saint Clare’s informed Grande that they were terminating her employment because they felt she had limitations which prevented her from safely doing her job.

Federal Court Holds That An Employee May Use Medical Leave Time Off For Vacation

Published on: August 3, 2017 | by Mashel Law, L.L.C.

The federal Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654 and New Jersey Family Leave Act (“NJFLA”) N.J.S.A. 34:11B-1 et. seq. permits employees to take 12 weeks of protected unpaid leave when they or their immediate family suffer a serious medical condition or for a new born child. This allows the employee to cope and recuperate from such circumstances. Relatedly, an employer cannot punish an employee for taking FMLA or NJFLA leave. Indeed, the United States Court of Appeals for the 11^th Circuit recently ruled that an employee can use his medical leave time off as vacation time, and cannot be fired for doing so, so long as taking such time off does not directly violate an express company policy. In Jones v. Gulf Coast Health Care of Delaware, LLC, 854 F.3d 1261 (11^thCir. 2017), the 11^th Circuit remanded to the district court to decide whether an employer had subjected his employee to unlawful retaliation by firing him when he did not use his time off within the “spirit” of medical leave – to rehabilitate and recover – and instead vacationed.

In Jones, the employer, Accentia, granted plaintiff Rodney Jones (“Jones”), their Activities Director, 12 weeks of FMLA leave so that he could undergo rotator cuff surgery and fully recover. However, when Jones was scheduled to return, his doctor reported that Jones could not resume physical activity until February 1, 2015. Despite his doctor’s recommendations and his own physical limitations, Jones still wished to return to his job at the end of his FMLA leave. Jones understood his doctor’s report to simply mean that he needed to continue physical therapy, not that he was prohibited from working entirely. Therefore, he asked his supervisor to allow him to return to work on light duty. His requested was denied. In fact, Jones was told he would not be permitted to return to work unless he underwent and passed a fitness-for-duty exam. Because his supervisor was adamant that Jones could not return to work on light duty, Jones did not ask his doctor for a light-duty certification. Jones instead requested additional time off and was granted another 30 days of non-FMLA medical leave to complete his physical therapy.

During the additional leave time, Jones twice visited the Busch Gardens theme park in Tampa Bay, Florida where he spent time walking around and taking pictures of the park’s Christmas decorations. Jones also visited his family in the Caribbean for three days. He posted photos from these trips on his Facebook page, including pictures of himself on the beach, posing by a boat wreck, and in the ocean. When Jones returned to work, his supervisor confronted him with the vacation photos and informed him that “corporate” believed, based on these Facebook posts, Jones had been well enough to return to work without additional leave. Hence, Jones was suspended, and then his employment terminated following an investigation by the company.

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.

New Jersey Workers Are Free From Religious And Political Intimidation On The Job

Published on: April 7, 2016 | by Mashel Law, L.L.C.

Your company is sponsoring a political fundraising luncheon for Donald Trump during work hours and makes clear your attendance is expected. Must you attend? How about if your boss insists that all members of the IT team he heads, and to which you are a member, must attend and participate in a prayer breakfast meeting where the pastor from his church will be speaking. If you refuse to go, are you protected your boss suffer retaliate against you later? The answer to these questions are found in the New Jersey Worker Freedom from Employer Intimidation Act (“the Act”).

The Act, which was signed into law in 2006, forbids employers from requiring employees to attend any employer-sponsored meetings or participate in any communications with an employer and the employer’s agents or representatives where the purpose of the get-together is to hear about the employer’s opinion(s) about religious or political matters. The Act specifically prohibits an employer and its agents and representatives from discharging, disciplining or otherwise penalizing any employee because the employee in good faith reports a violation or suspected violation of the Act.

Any employee who suffers retaliation in violation of the Act may bring a private civil action against the offending employer and its cohorts. The remedies under the Act include:

FORMER STATE TROOPER HAS DOORS TO THE COURTHOUSE SHUT ON HIS RETALIATION CLAIMS

Published on: March 31, 2016 | by Mashel Law, L.L.C.

Many of us would like to believe that if we are the victims of discrimination in the workplace, we will be given the opportunity to one day prove that case before a jury of our peers. Unfortunately, sometimes a judge will step in and strip a deserving litigant of that opportunity. This is what recently happened to retired State Police Trooper Robert Repsha in a discrimination case filed in the New Jersey Superior Court entitled Robert Repsha v. New Jersey State Police, Docket No. A-0414-14T3 (App. Div. Mar. 24, 2016).

Trooper Repsha, a Caucasian, now-retired state trooper, filed a lawsuit against his former employer, the New Jersey State Police (NJSP), alleging he was repeatedly passed over for promotions during the period of 2010-2012 in retaliation for having filed a hostile work environment complaint with the Equal Employment Opportunity Commission (“EEOC”) against an African-American superior officer. Trooper Repsha also alleged that after he suffered a heart attack in October of 2010, the NJSP failed to accommodate him upon his return to work and he was otherwise retaliated against because he sought an accommodation.

No juror ever had the opportunity to hear these allegations of discrimination because a motion judge determined that, among other things, the promotions denied Trooper Repsha after 2010 were “too distant in time” from the 2006 EEOC complaint to be considered actionable. On March 24, 2016, the Superior Court of New Jersey, Appellate Division issued an opinion agreeing with the motion judge noting, “[t]he mere fact that adverse employment action occurs after the alleged protected activity is not alone sufficient to present or suggest a causal link between the two events.” Accordingly, no jury will never hear Trooper Repsha’s story of discrimination and retaliation.