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The issue of whether an employee has suffered a requisite “adverse employment action” under our state’s whistleblower law when transferred out of his longstanding job into another after he blows the whistle on his employer’s violations of law or public policy, was recently addressed by the New Jersey Appellate Division in Jeffrey Scozzafava v. Somerset County Prosecutor’s Office, 2018 N.J. Super. LEXIS 1125, (App. Div. decided May 14, 2018). There, the appellate court significantly expanded employee protections within the meaning of New Jersey’s Conscientious Employee Protection Act (CEPA) by providing clarity on the issue of lateral transfers.

In Scozzafava, the Appellate Division reversed a trial court’s decision dismissing Detective Jeffrey Scozzafava’s complaint against his employer. The Court held that Detective Scozzafava’s transfer from his long-time service in the Somerset County Prosecutor’s Office’s forensic unit to the Office’s fugitive squad, constituted an adverse employment action by the employer stemming from Scozzafava’s whistle-blowing conduct of filing complaints against the forensic unit and supervisor for improper and deficient evidence collection and casework.

To establish a New Jersey whistleblower claim, a plaintiff must satisfy four elements:

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Having a new baby is an exciting time of life but can bring many anxieties regarding the logistics of coming back to work after delivery. New mothers coming back to work after giving birth are faced with a multitude of questions, concerns, and uncertainties, including how they will continue breastfeeding their infant. Although a very personal parenting and health decision, the medical benefits of breastfeeding have been shown to cause fewer illnesses in children, reduced risk of asthma or allergies.  After new moms decide they want to continue the breastfeeding relationship with their babies after going back to work, they may wonder what their rights are to do so in the workplace.

For employees considered “nonexempt” under the Fair Labor Standards Act (“FLSA”), meaning they are entitled to earn overtime pay, federal law requires a break time for mothers to express milk, and a location shielded from view other than a bathroom. Since the Affordable Care Act (“ACA”) was signed into law on March 23, 2010, section 7 of the FLSA was amended to require employers provide reasonable break time for an employee to express breast milk for one year after childbirth.  See 29 C.F.R. 207(r).  This law is also known as the “Break Time for Nursing Mothers Law.” Employers are also required to provide a place other than a bathroom that is shielded from view and free from intrusion from coworkers and the public.  All employers are subject to the FLSA break requirement unless the employer can show that (1) they have 50 or fewer employees, and (2) compliance would pose an undue hardship.

In New Jersey breastfeeding is a protected act under the New Jersey Law Against Discrimination (“LAD”) (N.J.S.A. 10:5-2 et. seq.). On January 8, 2018, the LAD was amended to include all breastfeeding mothers (with no one-year time limitation as in the FLSA).  It is now illegal for employers to refuse to hire, take adverse employment action and discriminate against an employee because of breastfeeding. Employers must also make available to the employee reasonable accommodations including reasonable break time each day and a suitable private location other than a toilet stall, in close proximity to the work area to allow the employee to express milk. N.J.S.A. 10:5-2(s). There is an exception if the employer can demonstrate that providing the accommodation would be an undue hardship on their business operations. Courts will examine the overall size of the business, number of employees, number and type of facilities, budget, type of operations, structure of workforce, cost of the accommodation needed, and the essential requirements of the job.  Id.

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On May 2, 2018, New Jersey Governor Phil Murphy signed into law the Paid Sick Leave Act requiring all public and private employers in the State of New Jersey, regardless of their size, to offer paid sick leave. The law is scheduled to go into effect on October 29, 2018.

Under the Paid Sick Leave Act, an employee shall be permitted to paid sick leave as follows:

(a) Diagnosis, care, treatment, recovery and/or preventive care for the employee’s own mental or physical illness or injury or the employee’s family member’s mental or physical illness or injury;

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After overwhelming support and passage through the New Jersey Senate and Assembly, New Jersey Governor Phil Murphy signed into law a historic and sweeping equal pay legislation that is being deemed the strongest equal pay law in America.  The new law affords equal pay protections to all minorities and protected classes, not just women.

 
Although New Jersey already has a law prohibiting discrimination in pay based on sex under N.J.S.A. 34:11-56.2, the new Equal Pay Act goes even further and extends to equal pay protections to all protected classifications of sex, race/ color, national origin/ancestry, religion/creed, disability, age, pregnancy, marital status, sexual orientation, gender identity,  N.J.S.A. 10:5-12(a).  The Equal Pay Act also has a six (6) year statute of limitations, where LAD only has a two (2) year statute of limitations. Under the new law a discriminatory compensation decision or other employment practice that is unlawful under the New Jersey Law Against Discrimination (LAD) occurs each time that compensation is paid in furtherance of that discriminatory decision or practice – effectively making each paycheck another instance of discrimination.

 
When the Equal Pay Act takes effect on July 1, 2018, it will be an unlawful employment practice for employers to pay less in wages, benefits, or compensation to members of a protected class for “substantially similar work, when viewed as a composite of skill, effort and responsibility” as those not in a protected class. In other words, if an employer pays one employee more than another who falls under a protected classification, the employer will have to show permissible exceptions for the pay disparities.  Such exceptions include a seniority system, a merit system or a bona fide factor other than the characteristics of the members of the protected class.  “Bona fide factors” can include training, education, experience, performance, productivity, and skill sets.

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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.

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The New Jersey Workers’ Compensation Act, N.J.S.A., 34:15–1 to -146 (Workers Compensation Act), protects and allows workers who are injured on the job to receive compensation and be made whole for their injuries. This protection generally extends to third parties as well. For example, if an employer (IT, security, or custodial firm etc.) farms out their employees for use by a third party, the third party can be held liable to the employee for common-law personal-injury or wrongful-death claims. N.J.S.A., 34:15–40.  This is true even after the employee received workers’ compensation benefits from his or her original-direct employer.

Some employers and third-parties have tried to protect themselves from third party claims by requiring prospective and current employees to sign waivers releasing the company from third-party liability for workers’ compensation in the event the employee is injured while working for those third parties. Recently, the New Jersey Supreme Court held that such waivers violate New Jersey public policy, and therefore, are invalid and unenforceable.

In Vitale v. Schering–Plough Corp., No. 078294, 2017 WL 6398725 (N.J. Dec. 11, 2017), Plaintiff, Philip Vitale (Vitale), was hired by Allied Barton Security Services (Allied Barton), as a security guard. When it hired Vitale, Allied Barton required him to sign an agreement entitled “Worker’s Comp Disclaimer” (“Disclaimer”) as a condition of his employment. In the disclaimer, Vitale agreed to “waive and forever release any and all rights” that he may have had to assert a claim “against any customer … of Allied Security to which [Vitale] may be assigned, arising from or related to injuries which are covered under the Workers’ Compensation statutes.” Id. at *3.

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To deny an employee a transfer to a lateral employment position because of his or her protected class characteristic, e.g., race/color, religion/creed, sex/gender, national origin/ancestry, age, disability, or sexual orientation, is a violation of The Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e et, seq. (1964) (“Title VII”) and the New Jersey Law Against Discrimination (the “NJLAD”). An employee demonstrating that they were the victim of discrimination needs to establish the existence of three elements: (1) that they are part of a protected category (race, sex, religion, color, or national origin); (2) they suffered an adverse action; and (3) causality, that is, they suffered adverse action from their employer because of their protected class characteristic(s). Once these three elements are established, discrimination can be found even when an employer merely withholds a benefit and the harm is not necessarily concrete or directly harmful to the employee. For example, if an employer does not give an (minority, religious, etc.) employee a particular promotion/benefit, which had otherwise been given to other, similarly placed (non-protected category) employees, it can be discrimination. This may apply even when the employer is not obligated to give those benefits/opportunities to the employees and the protected employee is not necessarily in a worse position than they were prior to being denied the requested benefit.

Recently, the D.C. Circuit in Ortiz-Diaz v. United States HUD, No. 15-5008, 2016 U.S. App. LEXIS 23805, at *1 (D.C. Cir. Aug. 2, 2016), limited prior precedent, reversed summary judgment, and remanded back to trial determination on the issue of whether a supervisor’s denial of a Hispanic employee’s lateral transfer request was discrimination under Title VII. Plaintiff, Samuel Ortiz-Diaz, worked for the Washington, D.C. Office of Inspector General and applied for a transfer to the Albany, New York, or Hartford offices. Ortiz-Diaz wanted to work at the Albany or Hartford offices to obtain a new “good” supervisor and remove himself from the control of his current supervisor who Ortiz-Diaz perceived as racially and ethnically biased. Ortiz-Diaz was even willing to take a pay cut just to get away from his biased boss, and thereby improve his career prospects, but his supervisor denied Ortiz-Diaz’s transfer request without explanation. Ortiz-Diaz sued claiming the denial of his lateral transfer was an act of discrimination. In agreeing that Ortiz-Diaz deserved to have his claims decided by a jury at trial, the D.C. Circuit Court distanced itself from prior court precedent where it was found that denial of a lateral transfer is not discrimination.  In doing so, the D.C. Circuit Court concluded that since Ortiz-Diaz was denied the opportunity to advance his career by a supervisor who he perceived discriminated against him because of Ortiz-Diaz’s Hispanic heritage, his Title VII claim of discrimination was deemed legitimate and deserving of a jury trial.

The Ortiz-Diaz decision demonstrates how some federal courts continue to expand the protection of federal employment discrimination laws. Our courts in New Jersey often look to federal law as a key source of interpretive authority when assessing allegations of unlawful discrimination. Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97 (1990). Given the liberality typically accorded the interpretation and application of the NJLAD, it may be fairly predicted that our state courts would likely follow the D.C. Circuit Court by prohibiting discriminatory employment practices which take the form of denying an employee a lateral transfer.

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People get aches and pains all the time. Your back hurts, your stomach is upset, or you are coughing and congested from a bad cold. Generally, that’s what sick days are for. And then there are times when someone sustains an injury or illness that temporarily prevents them from physically, mentally,or emotionally doing their job. In such instances, under the federal American with Disabilities Act (“ADA”), and the New Jersey Law against Discrimination (“LAD”), an employee is entitled to be reasonably accommodated by their employer. Under the LAD and ADA employees are even entitled to be accommodated for temporary disabilities. Temporary conditions that meet the definition of disability may be covered by the LAD and ADA. See, Failla v. City of Passaic, 146 F.3d 149 (3d Cir. 1998); Clowes v. Terminix Int’l, Inc., 109 N.J. 575 (1988); Enriquez v. West Jersey Health Systems, 342 N.J. Super. 501, 519 (App. Div. 2001) (observing that LAD “is very broad and does not require that a disability restrict any major life activities to any degree”); see also, Summers vs. Altarum Institute Corp., No. 13-1645 (4th Cir. January 23, 2014), (ruling that a temporary and severe impairment does in fact qualify as a disability under the ADA, thus, persons with temporary and severe impairments are protected by the ADA)

For an employee to be entitled to a reasonable accommodation for a disability, the ADA and LAD requires the injured or 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” is a very fact specific question. For example, if the essential functions of a job require heavy lifting and the employee can no longer lift heavy objects, the employer does not have to accommodate the employee.Furthermore, the ADA and LAD require an employer to reasonably accommodate a temporarily disabled employee by offering the employee, if available, the opportunity to fill a preexisting light duty position; in doing so the employee is helped to transition back to their original job.

In a landmark case, the United States Supreme Court in Young v. UPS ruled that under the federal Pregnancy Discrimination Act (“PDA”) (where under federal law pregnancy is not inherently a disability) an employer must accommodate a pregnant employee with accommodations the employer gives to other workers who are similarly disabled. There, a pregnant Ms. Young was ordered by her doctor not to lift objects weighing more than 20 pounds. UPS refused to accommodate Young and move her to an available “light duty” job. Instead, UPS required Ms. Young to use up her vacation days, and when those ran out, to take an extended unpaid leave of absence. The Supreme Court found that if other similarly disabled UPS workers with lifting restrictions were being accommodated by the giving of light duty assignments,so too was Ms. Young entitled to the same light duty accommodation from UPS.

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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).

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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.

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