First New Jersey Court Opinion Regarding Employers' Responsibility to Protect Employees From COVID-19
By: Glen D. Savits
On November 2, 2020, the firm defeated a motion to dismiss in the case of Loeb v. Vantage Custom Classics, et al. The case has been filed on behalf of a former COO of the defendants. In March of 2020, the plaintiff was insisting that the company follow certain protocols for dealing with Covid-19. When an employee contracted the virus, he stated that workers who came in contact with the employee should be notified of possible exposure. The defendants resisted fearing that it would cause employees to leave work. The parties agreed to ask the company's lawyers what to do, but right before the phone call was to take place, the plaintiff was fired. The firm filed a Complaint claiming that the plaintiff was fired in retaliation for opposing the company's decision not to inform employees in violation of the New Jersey Conscientious Employee Protection Act ("CEPA"). The defendants moved to dismiss the case, claiming that the plaintiff did not object based on any current law, rule, regulation or a "clear mandate of public policy." The Court denied the motion stating that the plaintiff had cited numerous standards, regulations and executive orders which established that not telling workers that they may have been exposed to a highly contagious and deadly disease was, in fact, a violation of a clear mandate of public policy affecting the health and safety of the public. This may be the first opinion of a court in New Jersey upholding a claim based on CEPA due to complaints involving failure to protect employees from Covid-19. A copy of the Court's decision is attached.
New Jersey Supreme Court's Employment Decisions Over The Last 18 Months Have Been Mostly Pro-Employee
By: Jon Green
1) Aguas v. State of New Jersey, 220 N.J. 494 (February 2015). In this case, the New Jersey Supreme Court ruled that an employee who suffers illegal workplace harassment by a supervisor only (i.e. is not fired, demoted, transferred, etc) must bring notify the employer of the harassment so that the employer can make it stop if a legal claim is to be brought. This was a change in the law in that the employer was considered automatically liable if a supervisor illegally harassed an employee. However, the employer still has the burden of proof to show that it adopted an effective anti-harassment policy and that the harassed employee did not act reasonably when he/she failed to report the harassment. The implications of this decision and Dunkley decision referenced immediately below for workplace harassment victims will be discussed on our blog page.
2) Dunkley v. Coralazzo Petroleum Transporters, 441 N.J. Super. 322 (App. Div. 2015) certif. den. 224 N.J. 120 ( January 2016). This case was a follow-up to the Aguas decision. Based on Aguas, the New Jersey Appellate Division ruled that the harassed employee's failure to report to the HR manager the harassment he claims he suffered as required by the employer's anti-harassment policy knocked out his claim. The Appellate Division held that the employer acted reasonably under the circumstances. Employee appealed that decision to the New Jersey Supreme Court, who in turn decided not to hear the appeal. When doing so, the Supreme Court clarified the Appellate Division's decision by stating that an employer cannot defeat a workplace harassment claim if it did not adopt a "meaningful and effective" anti-harassment policy; in that case, the Supreme Court concluded that the employer had done so.
3) Lippman v. Ethicon Inc., 222 N.J. 362 (July 2015). In this case, the New Jersey Supreme Court was asked to decide whether a compliance officer or watchdog employee for a pharmaceutical company was a whistleblower when he complained about defective products being sold. The employer argued that he was a merely doing his job and thus was not a whistleblower under the New Jersey Conscientious Employee Protection Act. The Court rejected the employer's contention by ruling that the whistleblower statute's provisions explicitly covers all employees who report, complain, object to or refuse to particpate in activities that are illegal, fraudulent and/or unsafe under the law. The impact of this decision was that employers cannot require employees to report illegal wrongdoing as part of their job descriptions in order to evade New Jersey's whistleblower statute.
4) Rodriguez v. Raymours Furniture Company, Inc., ____ N.J. _____ (June 15, 2016). The issue to be resolved in this case is whether an employer could legally shorten the deadline from two years to six months either through a contract, employer manual or employment application, i.e., statute of limitations, by which a discrimination victim could file suit under the New Jersey Law Against Discrimination. The Supreme Court ruled against the employer and in favor of the employee on the basis that such employer action would undermine the effectiveness of New Jersey's anti-discrimination statute.
5) Smith v. Millville Rescue Squad, ____ N.J.________ (June 21, 2016). In this case, a director of the Millville Rescue Squad was in the middle of divorce proceedings with his wife. The employee's supervisor believed that the divorce was going to be "ugly" with no chance of reconciliation. Because of the ongoing divorce process, the supervisor believed that the employee/director's performance was suffering and recommended his termination. The Supreme Court held that if the employee's divorce was a substantial factor in the decision to terminate the employee/director, that would violate the New Jersey Law Against Discrimination's prohibition against marital status discrimination.
5) Griffin v. City of East Orange, ____N.J._____ (June 22, 2016). This case involved the admissibility of witness testimony in a sexual harassment case. At trial, the trial judge would not allow a witness/East Orange employee to testify about statements made to her by the Mayor of East Orange in which he allegedly told the witness to lie to an investigator about the harasser's and alleged harassment victim's character. The jury ruled against the employee who claimed sexual harassment. The Supreme Court reversed and sent the case back for a new trial reasoning that the statements made by the Mayor to the witness/employee were relevant to prove the sexual harassement claims and were not hearsay under New Jersey's Rules of Evidence. This ruling makes proving illegal employer conduct much easier as will be discussed in upcoming blogs.
New Jersey Supreme Court Strengthens Employee Rights
By: Jon Green
On July 17, 2013, the New Jersey Supreme Court handed down a decision, i.e. Battaglia v. United Parcel Service, Inc., that not only puts employers on notice to show zero tolerance towards demeaning and condescending treatment of women in the workplace but also makes it easier for employees to prove illegal treatment by an employer both under New Jersey’s anti-discrimination statute and its whistleblower law.
First, the Supreme Court reinstated a jury verdict in favor of a male employee under the anti-retaliation provision of the New Jersey Law Against Discrimination who alleged that he was demoted because he objected about 1) his male supervisor’s offensive, vulgar and derogatory language about women to other male managerial employees even though there were no women present, and 2) the same male supervisor was having an affair with another female employee. Although there was no evidence of sex discrimination or sexual harassment in the workplace, the Court unanimously ruled that an employer cannot retaliate against a male employee who objects to offensive and derogatory language towards women that included 1) using the “c” word to refer to several women; 2) using the phrase "f**cking b****" to refer to another female employee; 3) using references to a female administrative staff member’s breast size; 4) expressing his wishes to engage in sexual activity with another female employee; and 5) repeatedly referring to a female employee named Regina as "vagina". The decision also stated that an employer cannot retaliate against an employee who points out to his/her employer that an affair between his supervisor and a co-worker violated company policy because the employee believed it may be a form of sex discrimination.
Second, although the New Jersey Supreme Court overturned the jury’s whistleblower verdict in favor of the plaintiff — because he did not raise in sufficient detail issues of employee’s fraudulent use of company issued credit cards in an anonymous letter and a verbal comment — the Court actually made it easier to find liability against an employer both in retaliation and discrimination cases. The Court did so by ruling that an employer may be held liable for illegal retaliation or discrimination where even if only one of its employees who decides to terminate, demote or otherwise take action against an employee that affects that affects the terms or conditions of employment is tainted with an illegal motive and that tainted decision-maker gives input recommending the negative action against the plaintiff.
On December 2, 2010, the Supreme Court of New Jersey reversed an Appellate Division decision and re-instated a more than $9.1 million verdict in favor of a Human Resources Director who sued her former employer for gender discrimination and retaliation. Glen Savits submitted an amicus (friend of the court) brief on behalf of the National Employment Lawyers Association of New Jersey. The position advocated in the brief was that the Court adopt a balancing test to determine when employees are entitled to legal protections for providing confidential company documents to their attorneys in connection with discrimination, harassment or retaliation claims. While the parties and the other organizations appearing as amicus proposed bright-line rules, the Supreme Court of New Jersey adopted a balancing test that incorporated the factors suggested by the Green Savits, LLC attorneys in the amicus brief. This decision is an important one for employees across the State of New Jersey because it makes clear that employees do not necessarily lose the protections under the Law Against Discrimination for sharing certain confidential company information with their attorneys.
Restaurant Shuts 13 NJ Locations Without Warning
On Monday, November 15, 2010, the popular chain restaurant Charlie Brown’s closed 13 separate restaurant locations in New Jersey without providing notice to or otherwise warning their employees. Employers with 100 or more employees are required to provide at least 60 days’ advance notice to employees or their representatives before closing down a covered employment site or doing a covered mass layoff under the New Jersey Warn Act.
Mommy-Track Lawsuit Settled
November 8, 2010 — A former vice president for Goldman Sachs has settled her lawsuit against the Wall Street giant Goldman Sachs in which she alleged that she was discriminated against for taking FMLA leave and discriminated against on the basis of her gender and pregnancy. Essentially, the plaintiff in that case claimed that she was discriminated against after she returned to work following her first maternity leave when she was demoted, stripped of her office, pushed into a position with compromised earning and advancement potential, and excluded from operational and social functions. In short, she claimed that she was relegated to a "mommy-track". According to the complaint, the plaintiff was terminated less than two weeks before she was expected to return to work after her second maternity leave.
Lawsuit Alleging Religious Discrimination Filed
November 8, 2010 — A lawsuit was filed against AutoZone alleging that a former employee was discriminated against because of his Sikh religion and retaliated against because of his complaints of discrimination. According to the lawsuit, the plaintiff, while employed at AutoZone, was asked by his manager if he was a terrorist, if he intended to blow up the store, and if he had joined Al Qaeda. The Complaint further alleges that AutoZone (1) did not take any measures to stop co-workers or store customers when they referred to the plaintiff as Bin Laden or when they directed terrorist jokes at him, (2) failed to accommodate his religious beliefs by refusing to allow him to wear a turban and a religious bracelet – both of which are required of people who practice his religion, and (3) fired the plaintiff because of his religion and for complaining about discrimination. Discrimination on the basis of religion and retaliation for complaining about such discrimination are illegal.
Suit Alleges Koran Burning Not Proper Grounds for Termination
November 5, 2010 – A lawsuit was brought against New Jersey Transit on behalf of a former employee who was terminated for breaching the agency’s code of ethics when he burned a Koran during the recent anniversary of the 9/11 attacks. Essentially, the lawsuit alleges that New Jersey Transit violated the plaintiff’s constitutional rights when it terminated him for exercising his right to free speech.
The Dangers of Using Work Computers, Internet or E-Mail Systems To Communicate With Your Attorneys
In Stengart v. Loving Care Agency, Inc., 201 N.J. 300 (2010), the Supreme Court held employers’ policies do not trump the attorney-client privilege and that, therefore, employees have a reasonable expectation of privacy in e-mails sent to their attorneys through personal, password-protected, web-based e-mail accounts even if those e-mails are accessed on computers belonging to their employers. Employees should never communicate via their employers’ e-mail, Internet, computer or phone systems with their attorneys or anyone else about a potential legal claim they may have arising from their employment.
Court Suggests That Employer’s Failure to Accommodate May Ae Actionable Even Without Adverse Employment Action
In September 2010, the Supreme Court held that it is likely that a failure to accommodate unaccompanied by any other adverse employment action (such as a termination, demotion or transfer) constitutes disability discrimination under the Law Against Discrimination (LAD). Victor v. State of New Jersey, 2010 WL 3526480 (N.J. Sept. 13, 2010).
Unequal Pay Claim Based Upon Gender (Sex) and Age Pending Before Supreme Court
In Alexander v. Seton Hall Univ., 410 N.J. Super. 574 (App. Div. 2009), the Appellate Division affirmed the dismissal of plaintiffs’ complaint alleging sex and age discrimination in violation of the Law Against Discrimination (LAD). The Appellate Division, in adopting Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), held that a pay claim is time-barred if the decision to discriminate in regard to pay was made outside the period of limitations regardless of the lasting effects of that decision as long as the employer did not act with discriminatory intent during the limitations period. In reaching this conclusion the Appellate Division acknowledged the existence of the Lilly Ledbetter Fair Pay Act of 2009 (FPA) but concluded that the FPA was inapplicable to cases brought under the LAD because the New Jersey legislature has not enacted similar legislation.
This case is currently pending before the Supreme Court, who heard oral argument on this matter on September 13, 2010.
Earlier this year the Supreme Court held that post-termination retaliatory acts are actionable under the LAD. Roa v. Lafe, 200 N.J. 555 (2010). This means that an employer who retaliates against an employee who engaged in protected conduct by, for example, falsely stating to unemployment that the employee was terminated for misconduct or gross misconduct may be held liable for a violation of the law.
An employee engages in protected conduct by complaining about, objecting to or refusing to participate in an act that the employee reasonably believes violates the New Jersey Law Against Discrimination or the Conscientious Employee Protection Act (the law that protects employees who blow the whistle on wrongful conduct).
Causing Employees’ Disability Will Not Necessarily Put Employers on the Hook for Damages
This year, the Appellate Division held that a plaintiff suing under the New Jersey Conscientious Employee Protection Act (New Jersey’s whistleblower law) cannot be awarded post-employment economic damages without proving either actual involuntary termination of employment or constructive discharge, even if the defendant’s unlawful conduct caused the plaintiff to become medically disabled from working, resulting in a disability retirement. The Supreme Court has granted plaintiff’s petition for certification on this issue and the case remains pending before the Supreme Court. Donelson v. DuPont Chambers Works, 412 N.J. Super. 17 (App. Div.), certif. granted, 203 N.J. 95 (2010).
Non-Renewal of Employment Contract is a Termination
In Nini v. Mercer County Community College, 202 N.J. 98 (2010), the Supreme Court held that non-renewal of a term employment contract is equivalent to discharge of an at-will employee in the context of the New Jersey Law Against Discrimination’s provision allowing employers to refuse to hire or promote employees over seventy years of age. In other words, an employer can be sued for age discrimination based on its refusal to renew the contract of an employee over the age of seventy, because that non-renewal is construed as a dismissal rather than a failure-to-hire.
Plaintiffs Suing Under the Law Against Discrimination Are Not Necessarily Required to Undergo Psychiatric Examinations
On August 23, 2010, the Law Division held that plaintiffs suing under the New Jersey Law Against Discrimination do not put their mental state in controversy so as to be required to submit to an independent psychiatric examination merely by asserting claims for emotional distress damages. This important Law Division case will have widespread application in all cases where employees seek emotional distress damages as a result of the unlawful conduct to which they were subjected by their employers. McGhee v. Pathmark Stores, Inc., Docket No. ATL-L-2459-08.