New Jersey Employment Attorneys Blog

IF YOU ARE A VICTIM OF DISCRIMINATORY MOTIVATED HARASSMENT AT WORK, AND DON’T REPORT IT, YOU MAY BE BARRED FROM RECOVERY

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

If your employer has a widely disseminated anti-harassment policy and you are a victim of harassment on the job, you must follow the victim reporting mechanism or procedures in the policy because failure to do so may bar you from recovering damages for the harassment you were forced to endure. The New Jersey Supreme Court decision in Aguas v. State of New Jersey, 220 N.J. 494 (2015) is instructive on this point. Ilda Aguas worked as a corrections officer for the New Jersey Department of Corrections (DOC). The DOC had in place a widely disseminated written anti-harassment policy which required employees to report sexual harassment or other forms of discrimination in writing. Aguas claimed her supervisor and other officers were sexually harassing her. However, Aguas only reported the harassing conduct verbally, not in writing. Thereafter, Aguas filed a lawsuit against the DOC and her harassers alleging she was sexually harassed in violation of New Jersey’s Law Against Discrimination (LAD). Ilda Aguas’ lawsuit was ultimately dismissed because she failed to follow the DOC’s anti-harassment policy and its requirement that victims of harassment make their complaints in writing.

In its decision affirming the dismissal of Ms. Aguas’ lawsuit, the New Jersey Supreme Court found that when an employer has in place a well-publicized and reasonably effective policy designed to eliminate discriminatory harassment in the workplace, and an employee fails to comply with the policy, the employer may avoid liability for the harassment perpetrated by its supervisors or the victim’s co-workers. This is called the “Ellerth-Faragher Defense” which gets its name from two United Supreme Court decisions Faragher v. Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Under the Ellerth-Faragher Defense an employer can avoid liability to a victim of harassment if no tangible job action was taken against the employee (such as a firing or demotion) and: (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher, supra., 524 U.S. at 807; Ellerth, supra,, 524 U.S. at 765.

Many victims of work related harassment are reluctant to report it for fear of retaliation; this is especially true if the harasser is a supervisor. Nonetheless, the Aguas decision instructs that failure to report the harassment could bar the victim from being able to sue an employer to recover damages for any physical, mental or emotional harms caused by the harassment. However, if you are a victim of harassment and fear retaliation if you report the harassment, you should consider that the LAD makes it unlawful for an employer, “to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.” N.J.S.A. 10:5-12(d). Simply put, if your employer retaliates against you for reporting the harassment, you can and should sue them under the LAD for having done so. Victims of harassment and retaliation must do whatever is necessary to protect their right to sue in court to hold their employer and the harasser(s) accountable for the damage and harm caused by their unlawful actions.

A Victim of Sexual Harassment and Other Intentional Harms May Pursue Both Discrimination and Workers’ Compensation Claims

Published on: August 10, 2016 | by Mashel Law, L.L.C.

Lisa is a new probationary employee with a New Jersey company who has been the target of sexually offensive remarks by Doug, a male co-worker. Doug’s harassing behavior includes, but is not limited to, asking Lisa: a) to sit on his lap; b) what her bra cup size is; c) to wear short skirts to work; d) to have a drink with him after work after she already declined to do so; and e) to take a “selfie” with him at her desk. Lisa’s complaints to her boss and Human Resources about Doug’s incessant behavior has not stopped his unwelcome antics. As a result, Lisa finds herself constantly fearful, anxious, sad, irritable, crying; she is distracted and having trouble focusing both at work and home. Her appetite has greatly decreased and she is having trouble sleeping. Lisa went to see her doctor and was informed her blood pressure was elevated and she was suffering from anxiety and depression. In addition to prescribing her medicine, the doctor has recommended Lisa immediately go on disability and consult with a mental health professional. Lisa tells the doctor that as a new employee she will not be eligible for health insurance for another two months, she has no personal savings, and has so far paid very little money into the state disability insurance program. She is both sick and fearful of losing her job and doesn’t know what to do. What Lisa needs to do is to call both an employment lawyer and a workers compensation lawyer.

The employment lawyer will immediately do everything necessary to protect Lisa’s legal interests as a victim of workplace sexual harassment including, if necessary, filing a lawsuit on her behalf asserting claims for violation of New Jersey’s Law Against Discrimination (LAD). The workers compensation lawyer will immediately place the employer on notice that Doug’s unstopped harassment has caused Lisa to suffer mental health injuries arising out of her course of employment and will demand that she immediately receive authorized medical treatment and workers compensation temporary disability benefits. If the employer fails to provide such benefits, the workers compensation lawyer will then file a workers compensation claim petition with the New Jersey Department of Labor and Workforce Development, Division of Workers Compensation Workers and file a motion with the workers compensation court seeking to compel the employer (and its insurance company) to provide Lisa with authorized medical treatment and temporary disability benefits. Assuming Lisa has suffered a partial permanent psychiatric injury, the workers compensation lawyer will eventually petition the workers compensation court to award Lisa money for her disabling injuries.

New Jersey law permits Lisa to file a LAD discrimination claim with the New Jersey Superior Court while at the same time pursuing a workers compensation claim before the New Jersey Division of Workers Compensation. This is because LAD claims and other intentionally caused harms are claims not subject to the exclusivity provision of the Workers Compensation Act. In 1997, our State Supreme Court affirmed that employees could bring both a workers compensation claim and a collateral discrimination and/or intentional infliction of emotional harm claim arising out of similar sets of facts and circumstances against the same employer where intentional acts by co-workers or the employer cause psychological disability to the employee. Schmidt v. Smith, 294 N.J. Super. 569, 584 (App Div. 1996) aff’d 155 N.J. 44 (1997) (“If the Legislature had intended workers compensation to be the exclusive remedy for victims of harassment and discrimination in the workplace it would not have provided for a jury trial as well as compensatory and punitive damages.”); Gardenshire v. N.J. Manufacturers Ins. Co., 333 N.J. Super. 219, 230 (Law Div. 2000).

Holding Employers Liable For the Discriminatory or Retaliatory Acts of Supervisors and Co-Workers – Cat’s Paw to the Rescue

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

Amir is an American born Muslim of Pakistani descent. Amir has recently obtained an entry level administrative position at ABC, Inc., a large pharmaceutical company. Two white co-workers in Amir’s department, Billy and Bob, who similarly hold entry level positions at ABC, dislike Muslims. As a result, Billy and Bob scheme to get Amir fired by falsely reporting to their department manager Tony having seen Amir stealing drug samples used by the company’s sales team. Relying on what Billy and Bob reported to him, Tony decides to fire Amir. Thereafter, Amir retains an employment lawyer and files a wrongful discharge discrimination lawsuit against ABC. While the lawsuit is pending, Billy and Bob’s discriminatory scheme is uncovered. Will Amir and his attorneys be able to hold ABC liable for Manager Tony having fired Amir based on what Billy and Bob reported? Under the so-called “cat’s paw” theory of liability, the answer appears to be yes.

Our United States Supreme Court in a case entitled Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011), held that “an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make the ultimate decision.” Id. at 1187. Prior to this ruling, lower federal courts had favorably applied the cat’s paw theory in discrimination cases. Abramson v. William Paterson College, 260 F.3d 265, 286 (3d Cir. 2001) (“it is sufficient if those exhibiting discriminatory animus influenced or participated in the decision to terminate.); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5^th Cir. 2000) (“If the employee can demonstrate that others had influence or leverage over the official decision maker . . . it is proper to impute their discriminatory attitudes to the formal decision maker.”); Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1^st Cir. 2000) (stating that “discriminatory comments . . . made by . . . those in a position to influence the decision maker” can be evidence of pretext); Griffin v. Washington Convention Ctr., 142 F.3d 1308, 1312 (D.C. Cir. 1998) (“Evidence of a subordinate’s bias is relevant where the ultimate decision maker is not insulated from the subordinate’s influence”). Similarly, the New Jersey Appellate Division adopted the cat’s paw theory from Staub and applied it under New Jersey’s whistleblowing law known as the Conscientious Employee Protection Act, or CEPA. Battaglia v. United Parcel Service, 2011 N.J. Super. Unpub LEXIS 2180 at * 29 (App. Div. Aug. 12, 2011); see also Lowe v. Medco Health Solutions of Willingboro, LLC, 2012 U.S. Dist LEXIS 59137 at *48-49 (D.N.J. Apr. 27, 2012) (“it appears likely that New Jersey will adopt a standard similar to the “cat’s paw’ theory enunciated in Staub”).

In Burlington v. News Corp., 55 F. Supp. 3d 723 (E.D. Pa. 2014), the United States District Court for the Eastern District of Pennsylvania concluded the “cat’s paw” theory of imputed causation in discrimination cases should be extended to situations where the discriminatory animus influencing the decision-maker stemmed from a nonsupervisory employee. Id. at 738; see also Harris v. Warrick Cnty. Sheriff’s Dep’t., 666 F.3d 444, 448 (7^th Cir. 2012) (noting that co-worker “cat’s paw” liability might have been available had the plaintiff established causation); Keefer v. Olin Corp., No. 09-cv-23-WDS, 2011 WL 4474966, at *3 (S.D. Ill. Sept. 26, 2011) (“Plaintiff has to show that there is supportable evidence that the unidentified ‘nurse’ somehow actually influenced the decision maker . . . or that the nurse was in a supervisor capacity.”); Johnson v. Koppers, Inc., No. 10 C 3404, 2012 WL 1906448, at *6-7 (N.D. Ill. May 25, 2012) (expressly extending the cat’s paw doctrine to co-workers).

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.

LITIGANT DENIED RELIEF DUE TO RUNNING OF STATUTE OF LIMITATIONS

Published on: April 14, 2016 | by Mashel Law, L.L.C.

The Statute of Limitations dictates the time period in which a plaintiff must file a lawsuit. Failure to file a complaint in court within the statute of limitations will forever bar your ability to file a lawsuit no matter how legitimate your legal claim may have been had it been timely filed. In employment cases, the statute of limitations time begins to run upon the occurrence of a singular event or discrete act resulting in an adverse employment action being taken against an employee. An adverse action usually takes the form, among others, of discharge from employment, suspension, demotion, cut in pay or benefits, unfavorable shift assignment, failure to hire, and failure to promote. For statute of limitation purposes a discrete retaliatory or discriminatory act occurs on the day it happens. However, when the adverse employment action is a hostile work environment the task of identifying the date when the statute of limitations begins to run is much more difficult. This is because a hostile work environment typically results from a pattern of hostile acts which collectively viewed constitute one “unlawful employment practice”, that is, no single act alone is sufficiently severe enough to constitute by itself a hostile work environment. The Continuing Violation Doctrine can save an otherwise untimely filed hostile work environment claim so long as one of the hostile acts comprising the offending pattern of conduct falls within the applicable Statute of Limitations. The attempt to use the Continuing Violation Doctrine to stave off dismissal of an otherwise untimely filed lawsuit was recently discussed in Fujita v. Kingo Yamanashi.

Plaintiff Fujita was employed at Yama Seafood, Inc. from November 1988 until August 2011. Over the course of her employment, Fujita claimed Yama Seafood’s founder Kingo Yamanashi often insulted her about her age and sex. Yamanashi would frequently refer to Fujita as “baba,” meaning “old woman. On March 18, 2010, Yamanashi told Fujita, “You are already sixty (60) years old. Why are you here at this company now? You are such an old woman. You should not be working here.” Yamanashi added “Leave this company right now. Take your stuff and don’t leave anything here.” Fujita did not leave and continued working for Yama Seafood. However, Fujita eventually found the continuing insults to be intolerably hostile, and chose to submit her resignation in August 2011.

On August 6, 2012, Fujita filed a complaint in the New Jersey Superior Court against Yamanashi and Yama Seafood, Inc. alleging violations of the New Jersey Law Against Discrimination (“LAD”) and the New Jersey Equal Pay Act (“EPA”). LAD has a two (2) year statute of limitations. Fujita based her legal claims on discriminatory comments alleged to have occurred more than two years prior to the filing of her August 2012 lawsuit. Fujita argued that the comments could still form the basis of a viable discrimination case by application of the Continuing Violation Doctrine. To include events occurring before the two-year period in a hostile work environment claim, a plaintiff must show a continuum of harassment sufficient to show a continuing violation claim. Toto v. Princeton Twp., 404 N.J. Super. 604, 613 (App. Div. 2009). A plaintiff who experiences a “continual, cumulative pattern of tortious conduct” may pursue an action if at least one of the discriminatory acts occurred within the statutory period. Roa v. Roa, 200 N.J. 555, 556 (2010). However, “the doctrine does not permit . . . the aggregation of discrete discriminatory acts for the purpose of reviving an untimely act of discrimination that the victim knew or should have known was actionable.” Ibid. at 569. Fujita could not show a continuing violation sufficient in the eyes of the court to sustain the viability of her legal claims. Accordingly, her lawsuit was dismissed.

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.

NEW JERSEY APPELLATE DIVISION STRIKES DOWN ARBITRATION CLAUSE IN EMPLOYEE HANDBOOK

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

On January 17, 2016, in a published decision, the New Jersey Superior Court, Appellate Division, invalidated a mandatory arbitration clause found in an employee handbook. See Morgan v. Raymours Furniture Co., 443 N.J. Super. 338 (App. Div. 2016). This was a significant victory for employee rights across our State.

Plaintiff Grant W. Morgan worked for Defendant Raymours Furniture Company (“Raymours”) and electronically signed a company handbook which contained a mandatory arbitration clause. The company handbook, like almost every other company or employee handbook signed in this State, also contained a disclaimer provision that read that nothing in the handbook created a promise of continued employment or an employment contract.

After Mr. Morgan electronically signed the company handbook, he started complaining about age discrimination in the workplace. Raymours immediately confronted him with an ultimatum — that he either sign a stand-alone arbitration agreement or his employment would be terminated. Plaintiff refused to sign the stand-alone agreement and Raymours fired him.

HOW DO I KNOW IF I HAVE A QUI TAM CASE?

Published on: March 24, 2016 | by Mashel Law, L.L.C.

How did I Discover the Fraud?

Did someone make a false statement to the government for purposes of getting a claim paid, or for purposes of avoiding paying money back to the government?

If so, who made the false statement, to whom, when, where, why, and how?

10 SCARY THINGS ABOUT THE PATRIOT ACT

Published on: March 24, 2016 | by Mashel Law, L.L.C.

The USA Patriot Act (USAPA) has now been with us for nearly a decade. There are those who insist that it has been a necessary and useful tool against terrorist activities on US soil, and there are those who think it is a dangerous extension of government power over individuals’ lives. In this article, we will explore what may be dangerous or subject to abuse, about the USAPA.

Expanded Access to Personal Information Held by Others. A significant provision in the USAPA gives authorities the ability to force anyone –doctors, financial institutions, libraries, schools, internet providers, etc ., to reveal personal information that they have gathered about your activities. In doing so, it does not even have to be proven that there is any criminal activity connected to these records, and there is no effective judicial oversight for these actions.
Gag Rules Applying to the Above Actions. Having forced an institution or business to give up your personal information, authorities are allowed to forbid said institution or business from telling you of that activity.