Articles Posted in Workplace Retaliation

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Mashel Law, L.L.C. recently filed a class action lawsuit in the United States District Court of New Jersey against Lyft, Inc. (Lyft) on behalf of current and former Lyft drivers who entered contracts with Lyft to receive a portion of the fare Lyft charges customers, that is, the fare charged the rider less Lyft’s applicable commission fee, and any applicable charges such as service fees, cancellation fees, damage fees, tolls, surcharges, and taxes, but who did not receive the contracted driver’s fee, and who opted out of arbitration. Lyft is a “ridesharing” business that originated in San Francisco, California in 2012, and whose chief competitor is Uber. Lyft operates in at least 33 other states in the United States.

Under this straightforward common law breach of contract action, the proposed class consists of all persons nationwide who entered contracts with Lyft to provide transportation services to customers (riders) of Lyft in exchange for a portion of the fare Lyft charges riders, to wit, the fare charged the rider (plus tips if applicable) less applicable charges such as service fees, cancellation fees, damage fees, tolls, surcharges, taxes, and who opted out of arbitration. The complaint also asserts common law claims of breach of the implied covenant of good faith and fair dealing, fraud, and unjust enrichment.

A class action lawsuit is appropriate when large numbers of similarly situated people have suffered same or similar injuries by the acts or omissions of a wrongdoer, typically a large corporation. Under the Federal Rules of Civil Procedure, a class may be certified if the requirements of Rule 23 are met, including: (1) numerosity; (2) commonality of law or fact; (3) typicality between the class claims and those of the named parties; and (4) adequacy of representation by the named parties and class counsel. Fed. R. Civ. P. 23(a).  “[T]he proposed class must also satisfy at least one of the three requirements listed in Rule 23(b).” Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2548 (2011). A party seeking certification pursuant to Rule 23(b)(3), must show that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3).

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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.

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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: