New Jersey Employment Attorneys Blog

Beware: Posting Controversial Comments Online May Get You Fired.

Published on: June 2, 2017 | by Mashel Law, L.L.C.

Expressing ourselves through social media is the norm. Whether it’s a wacky, funny selfie with dog ears on Snapchat, or posting a snarky comment on Facebook; it is a way to express ourselves. However, it is also a quick way for employers to find out about what their employees are thinking and saying.

As a citizen of the United States you have a First Amendment right to freely express a controversial opinion or inflammatory statement in in a public forum. While the United States Constitution and its Bill of Rights protects free speech, this protection only extends to government employees. As far as private employees’ job security is concerned, they do not enjoy similar carte blanche freedom to say whatever they want with impunity, i.e., without being disciplined. This is because New Jersey is an “employment at will” state. This means a private employer can decide to fire an employee for no good reason at all, so long as this decision does not violate the law. For instance, an employee of a private company who criticizes their boss or a customer may be fired for doing so.

In our electronically interconnected viral world, comments typed onto an iPad may impact your job security. Publicly accessible internet posts blur the boundaries between personal and work life, and all that matters are whether a comment, post, tweet, or picture offends your employer. Accordingly, you must be aware that what you post or tweet may set in motion the loss of your job. However, when employees discuss legally protected topics such as discrimination, they can by and large be protected from adverse employment action.

EMPLOYERS MUST PROVIDE DISABLED EMPLOYEES WITH REASONABLE ACCOMMODATIONS IN THE WORKPLACE

Published on: May 26, 2017 | by Mashel Law, L.L.C.

The Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“LAD”) protects physically and mentally disabled employees from discrimination. An employer cannot discriminate in their job applications, hiring, firing, training, pay, promotion, benefits, or leave against a disabled employee. Furthermore, an employer may not harass or retaliate against an employee who has a disability. Most critically, employers must provide disabled employees with reasonable accommodations at work.

When bringing disability claims, the LAD is more inclusive than the ADA. While the ADA does not include pregnancy itself as a disability and only a medical condition or complication due to pregnancy is considered a disability; the LAD includes even pregnancy itself as a disability. Also, the ADA does not protect an employee from an employer who is a private club while the LAD has no such limitation. 42 U.S.C. § 12111 (5)(B)(ii); N.J.S.A. 10:5-5(e).

The ADA and LAD protect employees whose disabilities substantially affect their major life activities. Such activities include hearing, seeing, speaking, thinking, walking, breathing, or performing manual tasks. Further, long-term disabilities/illnesses, such as cancer or diabetes, are still protected even though they are not permanent. However, if a disability is clearly short-term, for instance a cold or a sprain, it is generally not a “disability” which is protected. Finally, an employee’s disability does not need to be constant. Rather, disabilities which cause flair ups, such as chrome’s disease or cancer that is in remission, are also protected.

NEW JERSEY WORKERS MUST BE PAID FOR EACH HOUR WORKED; WORKING “OFF THE CLOCK” IS NOT PERMITTED

Published on: May 22, 2017 | by Mashel Law, L.L.C.

The federal Fair Labor Standards Act (“FLSA”) and the New Jersey Wage and Hour Law (“NJWHL”) protect the wages of New Jersey’s hourly workers. They do this by requiring employers to compensate hourly wage employees for each hour worked at a minimum wage rate (in New Jersey the minimum wage rate in 2017 is $8.44/hour), and to pay overtime wages at 1.5 times an employee’s regular hourly rate for each hour worked in excess of 40 hours in a workweek. This means that an employee is not permitted to work any time “off the clock” without pay even if the employee does so willingly.

Any time an employee is working for the employer he or she is required to be paid even when the employer did not ask the employee to work that time. For example, if the employer asks an employee to do a job and it takes the employee an extra hour to finish the job properly, the employee is entitled to overtime pay for that hour – even if the employer has a policy forbidding overtime pay. And if that hour means that employee has worked 41 hours in the workweek, the employee is entitled to 1.5 times her regular hourly rate for working that extra hour even if the employer has a policy forbidding overtime.

If an employee’s job requires him or her to wait around for an assignment, they must be paid for that time spent waiting. Indeed, even if the job is not to wait but merely to be “on call,” the time the employee is on call is to be considered work time warranting compensation. For example, if a job requires an employee to be available to respond to a security call, the time spent being on call must be compensated by the employer and can be calculated as part of work.

MASHEL LAW FILES A NATIONWIDE COLLECTIVE CLASS ACTION SUIT AGAINST TRANS WORD ENTERTAINMENT CORPORATION

Published on: April 20, 2017 | by Mashel Law, L.L.C.

Mashel Law, L.L.C. filed a nationwide collective class action against Trans World Entertainment Corp., Record Town, Inc. and Record Towns USA, LLC (collectively referred to herein as “Trans World”) on behalf of its client Carol Spack and all similarly situated current and former employees of the Trans World to recover for the Defendants’ willful violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., The New Jersey Wage and Hour Law N.J.S.A., 34:11-56.1 to -56.12 (“NJWHL”) and Pennsylvania’s Minimum Wage Act 35 P.S. § 333.101 et seq. (“PMWA”). Trans World Entertainment Corp. is a chain of entertainment media retail stores in the United States operating just over 300 freestanding and shopping mall-based stores. Trans World united its mall-based portfolio and retail Web site under the F.Y.E. (For Your Entertainment) brand name. In October 2016, the company acquired etailz, Inc., a leading digital marketplace expert retailer. Trans World Entertainment Corp reported total revenue of $147.1 million for Fourth Quarter 2016.

Under the collective action brought under FLSA, the proposed Class consists of all persons employed by the Trans World as Store Managers or Sr. Assistant Managers at any time three years prior to the filing of this action through the entry of judgment who worked over 40 hours per week and were not paid overtime pay at a rate of one and one-half times their regular rate for hours worked in excess of 40 hours during a workweek (the “Nationwide Collective Class”). The complaint also asserts pendent state claims for violations of New Jersey’s Wage and Hour Laws and Pennsylvania’s Minimum Wage Act.

Specifically, as to Sr. Assistant Managers, Plaintiff also complains Trans World violated FLSA by using a fluctuating work week method (FWW) when calculating overtime wages rightfully due Plaintiff and all other members of the proposed Nationwide Collective Class when they worked as Sr. Assistant Managers at Trans World stores nationwide. Under federal law, FWW provides under certain conditions for the payment of an unchanging salary that compensates an employee for all hours worked in a week regardless of whether the employee works fewer or greater than 40 hours a week, and payment for overtime hours at a rate of one-half employee’s regular rate of pay. 29 C.F.R. § 778.114(a).

AN OUT OF STATE WORKER MAY BRING A CLAIM UNDER NEW JERSEY’S WHISTLEBLOWER LAW IF THE EMPLOYER IS HEADQUARTERED IN NEW JERSEY

Published on: April 14, 2017 | by Mashel Law, L.L.C.

New Jersey’s Whistleblowing Law is “remedial social legislation designed to promote two complementary public purposes: ‘to protect and [thereby] encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.”’ D’Annunzio v. Prudential Ins. Co., 192 N.J. 110, 119 (2007) (quoting Yurick v. State, 184 N.J. 70 (2005)).

New Jersey’s public policy to protect whistleblowers is so strong that it even permits an employee working outside of New Jersey to bring a whistleblower claim alleging violations of New Jersey’s Conscientious Employee Protection Act (CEPA). This is exactly what occurred in Moore v. Novo Nordisk, Inc., 2011 WL 1085015 (S.C. Dist. Ct. Mar. 22, 2011). There, Plaintiff Moore, a resident of South Carolina, worked as a sales representative for Novo Nordisk (“Novo”), a global pharmaceutical company, at one of Novo’s locations in South Carolina. Novo maintains its United States corporate headquarters in Plainsboro, New Jersey.

Moore claimed she was told by a supervisor, who was also South Carolina resident, to give autographed basketballs to doctors to increase sales. Such an activity is a violation of the federal pharmaceutical marketing anti-kickback statute, 42 U.S.C. § 1320a-7b(b). Moore did as her supervisor told her to do. However, this unlawful kickback scheme came to the attention of Novo’s corporate counsel who conducted an investigated into the scheme and eventually questioned Moore about it. At first Moore lied to Novo’s corporate counsel denying her involvement, only to later admit she did gift autographed basketballs to doctors, but only at the direction of her supervisor. Moore was later fired by that same supervisor for admitting Moore’s role in the bribery scheme. Novo offered Moore a severance package in exchange for her waiving all legal claims she had against Novo. Moore rejected this, and instead filed a lawsuit against Novo in the United States District Court of South Carolina alleging, among others, that Novo wrongfully terminated her employment in violation of New Jersey’s CEPA law.

The Use of the Fluctuating Work Week (FWW) Formula to Calculate Overtime Wages Has Not Been Adopted in New Jersey

Published on: April 4, 2017 | by Mashel Law, L.L.C.

Bed Bath & Beyond’s (BBB) effort to dismiss a class action lawsuit filed by Mashel Law, L.L.C. has failed. The class action alleges BBB violated New Jersey’s Wage and Hour Laws (NJWHL) by not paying its Assistant Store Managers (ASMs), Customer Service Representatives (CSRs) and Department Managers (DMs) in its New Jersey stores overtime wages at a rate of one and one-half (1 ½ times) an employee’s regular rate of pay. BBB claimed it had the right to pay these class of workers’ overtime at a rate of only one-half (1/2 times) their regular rate of pay through use of a fluctuating workweek method (FWW) when its employees’ work hours fluctuated from week to week. Under federal law, FWW provides for the payment of an unchanging salary that compensates an employee for all hours worked in a week regardless of whether the employee works fewer or greater than 40 hours a week, and payment for overtime hours at a rate of one-half employee’s regular rate of pay. 29 C.F.R. § 778.114(a).

To use FWW, an employer must satisfy five (5) requirements: 1) the employee must work hours that fluctuate week from week; 2) the employee must be paid a fixed salary that serves as compensation for all hours worked; 3) the fixed salary must be large enough to compensate the employee for all hours worked at a rate not less than the minimum wage; 4) the employee must be paid an additional one-half of the regular rate for all overtime hours worked; and 5) there must be a “clear mutual understanding” that the fixed salary is compensation for however many hours the employee may work in a particular week, rather than for a fixed number of hours per week. Id.; See O’Brien v. Town of Agawam, 350 F.3d. 279, 288 (1st Cir. 2003), Griffin v. Wake County, 142 F. 3d. 712, 716 (4^th Cir. 1998). By example, for DMs working for BBB in New Jersey being paid $20.00 per hour, BBB contends by using FWW to calculate overtime wages, it was permitted to pay its DMs overtime wages of only $10.00 per hour rather than $30.00 per hour as Mashel Law, L.L.C. argues is required under NJWHL’s overtime provisions.

FWW does not enjoy uniform acceptance nationally under state wage and hour laws. For instance, while FWW is an accepted methodology for calculating overtime wages under New York’s wage and hour laws, Anderson v. Ikon Office Solutions, Inc., 833 N.Y.S. 2d. 1 (1st Dep’t 2007), it is not permitted under Pennsylvania’s wage and hour laws. See Foster v. Kraft Foods Global, Inc., 285 F.R.D. 343 (W.D. Pa. 2012); Cerutti v. Frito Lay, Inc., 777 F. Supp. 2d 920 (W.D. Pa. 2011). As for New Jersey, no statute has been adopted or amended permitting the use of FWW under state law when calculating overtime wages. Similarly, no New Jersey Department of Labor regulation has been adopted or amended to permit FWW for calculating overtime wages under the NJWHL. While there remains a dearth of New Jersey case law on this topic, there does exist a decision issued by Mark B. Boyd, former Commissioner of the New Jersey Department of Labor entitled New Jersey Department of Labor, Division of Workplace Standards, Office of Wage and Hour Compliance, et. al. v. Pepsi Cola Company, 2000 WL 34401845 (N.J. Adm.) decided August 29, 2000 (hereafter referred to as “the Pepsi-Cola Case”) rejecting the use of FWW for calculating overtime wages under New Jersey law.

MASHEL LAW FILES CLASS ACTION LAWSUIT AGAINST BED BATH & BEYOND, INC.

Published on: November 3, 2016 | by Mashel Law, L.L.C.

New Brunswick, N.J., November 1, 2016 – Brent Carter, Robert Haynes and Kenneth Cuoco, filed a class action lawsuit in Middlesex County Superior Court against Bed Bath & Beyond, Inc. (BBB) on behalf of themselves and all similarly situated current and former employees who worked in BBB stores located in New Jersey to recover for BBB’s failure to pay overtime wages in violation of The New Jersey Wage and Hour Law (NJWHL). The proposed Class consists of all persons employed by Defendant BBB in New Jersey who worked as either a Department Manager, Customer Service Representative, or Assistant Store Manager at any time two years prior to the filing of the lawsuit who worked over 40 hours per week and were not paid overtime pay at a rate of one and one-half times their regular rate for hours worked more than 40 hours during a workweek.

Carter, Haynes and Cuoco specifically complain that rather than Defendant BBB paying Plaintiffs and all other members of the proposed Class overtime pay at a rate of one and one-half times their regular rate for hours worked in excess of 40 hours during a workweek as required by the NJWHL, BBB instead unlawfully paid them and proposed Class members overtime pay based on a calculation which divided an employee’s base weekly salary by all hours worked in the week divided by 2 multiplied by all hours worked over 40 in the week. The Complaint alleges that BBB unlawfully applied this Fluctuating OT formula to avoid paying their Department Managers, Customer Service Representatives and Assistant Store Managers overtime compensation at a rate required by law. Indeed, the Complaint goes on to claim that by using its Fluctuating OT formula, Defendant BBB often paid Class members for hours worked over 40 hours in a week less than the State’s mandated minimum wage rate.

Plaintiffs’ attorney, Stephan T. Mashel, Esquire of the law firm of Mashel Law, L.L.C., located in Marlboro Township, New Jersey, said that his clients seek class certification and an award of money damages because BBB unjustly enriched itself by failing to pay its workers overtime pay at the legal overtime pay rate required under state law. As Mashel explains, “The overtime wage rate requirements contained in New Jersey’s Wage and Hour Laws benefits workers by dissuading employers from forcing employees to work excessively long hours. Such a disincentive has the salutary effect of promoting the health and quality of life of workers who value leisure and family time. Conversely, these same overtime pay requirements afford workers the right to earn extra pay at a time when lower and middle class workers wages have remained stubbornly stagnant. BBB used its Fluctuating OT formula to defeat these public policy goals.”

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 SUPREME COURT UPHOLDS LARGE EMOTIONAL DISTRESS AWARDS WHERE THE PLAINTIFFS NEITHER TREATED WITH A MENTAL HEALTH PROFESSIONAL NOR PRESENTED EXPERT TESTIMONY IN SUPPORT OF THEIR EMOTIONAL DISTRESS CLAIMS

Published on: September 30, 2016 | by Mashel Law, L.L.C.

On September 19, 2016, the New Jersey Supreme Court upheld large emotional distress verdicts in a national origin discrimination case where the plaintiffs, Ramon and Jeffrey Cuevas, neither treated with a mental health professional, nor presented expert testimony at trial in support of their respective claims of emotional distress damages. Ramon Cuevas v. Wentworth Group, 2016 N.J. LEXIS 891 (decided September 19, 2016). The Cuevas brothers filed a lawsuit under the New Jersey Law Against Discrimination against their former employer, the Wentworth Group, alleging they were routinely subject to racially disparaging and humiliating remarks by Wentworth executives; the Cuevas brothers also alleged they were the victims of retaliatory firings. The case was tried before a jury who awarded them $2.5 million in damages, including $800,000 to Ramon and $600,000 to Jeffrey for emotional distress damages. The defendants’ filed a post-trial motion with the court requesting a reduction of the emotional distress damages award because they felt they were unconscionably too high. Defendants’ application to the court for reduction of a jury award is called remittitur. The trial court denied defendants’ motion finding that the award was not “shocking to the conscience.” The Appellate Division affirmed the jury verdict and the trial judge’s denial of defendants’ remitter application. The issue on appeal before the New Jersey Supreme Court was whether the trial court properly denied defendants’ application for remittitur.

In agreeing with the Appellate Division panel below, and relying on its prior 2004 decision in Tarr v. Ciasulli, 181 N.J. 70 (2004), the New Jersey Supreme Court in Cuevas rejected defendants’ argument that, in a LAD case, only nominal damages may compensate for emotional distress when there is no “independent corroborative proof or a showing of resulting physical or psychological symptoms.” In affirming the trial court’s decision to leave intact the jury’s emotional distress verdict, the Court emphasized that, “the Legislature intended victims of discrimination to obtain compensation for mental anguish, embarrassment, and the like, without limitation to severe emotional or physical ailments.” (emphasis in original) quoting Tarr, supra., at 81. In doing so, the Court in Cuevas noted that a number of courts have upheld high emotional-distress LAD awards in the absence of expert testimony from mental-health experts. See, e.g., Rendine v. Pantzer, 141 N.J. 292, 311-13 (1995) (affirming trial court’s denial of remittitur and upholding jury’s emotional-damages awards of $105,000 and $125,000 for two plaintiffs in LAD gender-discrimination wrongful-termination case); Quinlan v. 36 Curtiss-Wright Corp., 409 N.J. Super. 193, 217 (App. Div. 2009) (upholding emotional-distress damages of $187,128 in LAD gender discrimination failure-to-promote case), rev’d on other grounds, 204 N.J. 239 (2010); Lockley v. Turner, 344 N.J. Super. 1, 12-14 (App. Div. 2001) (upholding $750,000 emotional-damages award), aff’d in part and modified in part on other grounds, 177 N.J. 413 (2003).

The Court further made clear that trial judges should be reticent to invade the province of the jury in determining what is a fair and reasonable damages verdict for a victim of proven discrimination. This is because a jury’s verdict is cloaked with a “presumption of correctness” quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977). The Court went on to opine that, “The unique nature of each case and the suffering of each plaintiff is the reason why juries are told that, in fixing a monetary amount for emotional-distress damages, there is ‘no better yardstick for your guidance than your own impartial judgment and experience.’” Model Jury Charges (Civil) § 2.36, 34 “Past and Future Emotional Distress in an Employment Law Case” (2014).

SECOND CIRCUIT ADOPTS CAT’S PAW THEORY TO HOLD EMPLOYERS LIABLE FOR THE RETALIATORY ACTS OF SUPERVISORS AND CO-WORKERS ALIKE

Published on: September 16, 2016 | by Mashel Law, L.L.C.

In our blog article posted on August 3, 2016, we discussed the growing trend of court jurisdictions throughout the country adopting the cat’s paw causation theory to conclude that employers can be held liable for the discriminatory or retaliatory acts of supervisors and subordinate co-workers. To remind, under the cat’s paw theory of legal causation, also known as the “subordinate bias” theory, an employer may be held legally responsible to a complainant/plaintiff for employment discrimination or unlawful workplace retaliation based on the discriminatory or retaliatory animus of an employee who influenced the decision-maker (typically a managerial level employee), but who him or herself, did not make the employment decision adversely impacting the complainant/plaintiff. Recently, a federal court sitting in the Second Circuit’s Southern District of New York adopted the cat’s paw theory in a sexual harassment case entitled Vasquez v. Empress Ambulance Service, Inc., (decided August 26, 2016).

The facts in Vasquez explain why the court there felt constrained to rule in the employer’s favor. Andrea Vasquez worked on an ambulance crew for Empress Ambulance as an emergency medical technician. A male dispatcher named Gray worked for Empress as a dispatcher. After Gray met Vasquez, he began to pursue a romantic or sexual relationship by asking her out on dates, putting his arm around her and touching her shoulders. Vasquez made clear to Gray that she was not interested in such a relationship with him and tried to ignore him. Not wanting to take no as an answer, Gray thought he could woo Vasquez by texting her a picture of his erect penis with the message “Wat u think” (sic). Vasquez was disgusted by Gray’s text and informed her supervisor about the unwanted text message. The supervisor instructed Vasquez to type up a complaint and send it to Empress’ human resources department and her supervisors. Meanwhile, having caught wind of Vasquez’s complaints about him and fearing the loss of his job, Gray began to create the false impression that he and Vasquez were involved in an intimate personal relationship. Deceitfully, Gray was able to manipulate his iPhone so that the record of a conversation with someone else containing consensual sexual text banter appeared to have taken place between Gray and Vasquez. Gray gave printed screen shot portions of such text conversation to Empress Management. Gray was also able to contrive a racy photograph of a woman he purported was Vasquez claiming she sent it to him in response to his erect penis photo. Gray’s effort to mislead Empress proved successful as Vasquez was fired by Empress based on the Empress Management Committee’s misapprehension that she had communicated a false sexual harassment claim against Gray.

Following her termination, Vasquez filed a sexual harassment discrimination and retaliation claims against Empress under federal Title VII and the New York State Human Rights Law. Empress moved to dismiss Vasquez’s complaint arguing, in part, that a cat’s paw claim is only viable when the biased person who influences the adverse employment discrimination is the plaintiff’s supervisor, and not like Gray, a mere co-worker. In rejecting Empress’ argument, the court stated that a subordinate’s biased recommendation to a decision-maker supports a cat paw’s theory of liability when the biased person acts within the scope of his or her employment, or when the biased subordinate acts as the employer’s agent although not formally delegated the authority to do so. Under either of these possibilities, the biased person by virtue of their position or relationship with the decision-maker(s) must occupy a position of confidence sufficient to corrupt the decision making process. Applying these principles, the court concluded that Gray’s manipulative conduct fell outside the scope of his employment, Gray was not delegated authority to act for the company, and no evidence was presented showing Gray occupied a position of confidence in the eyes of the employer sufficient to corrupt the decision to terminate Vasquez’s employment. Because the court found an insufficient basis to impute Gray’s retaliatory intent to Empress, it dismissed the claims brought against Empress.