Mashel Law filed a Complaint in the Middlesex County Superior Court on behalf of a client, whose initials are Q.B., alleging she was constructively terminated by out of state defendants because of her protected whistleblowing activities in violation of New Jersey’s Conscientious Employee Protection Act (CEPA).  Q.B. was hired by the defendants to be their Senior Human Resources Operations Manager tasked with performing payroll duties. During the course of her employment, the Defendants requested Q.B. to remove overtime hours from non-exempt hourly staff persons’ timesheets. As nonexempt hourly employees, the federal Fair Labor Standards Act (FLSA) and the New Jersey Wage and Hour Law require that employees be compensated at a rate of not less than one-and-one-half times their regular rate for all hours worked in excess of forty (40) hours in a workweek. See 29 U.S.C. § 207(a) and N.J.S.A., 34:11-56a4b. Q.B. refused to participate in the unlawful activity of removing overtime hours from Defendants’ staff members. The Defendants then side stepped around Q.B. and directly removed the overtime hours from their employee timesheets. Furthermore, Q.B. also objected to the Defendants’ unlawful practice of misclassifying certain staff as 1099 independent contractors when they were in fact W-2 employees; this too, was done to unlawfully avoid paying overtime wages. In response to Q.B.’s objections to Defendant’s violation of wage and hour laws and her refusal to engage in or facilitate such illegal practices, the Defendants retaliated against Q.B. by demoting and decreasing her salary and verbally reprimanding her. Because of this retaliation and the intolerably hostile work environment it created for her, Q.B. involuntarily resigned her position of employment with the Defendants (i.e., constructive discharge) and hired Mashel Law to file a CEPA based whistleblowing lawsuit against the Defendants.

In response to the Complaint filed on Q.B.’s behalf, the Defendants immediately filed a motion with the Court seeking to dismiss the Complaint by arguing, among others, that the Defendants did not do business in New Jersey and that their only contact with New Jersey was employing Q.B. who worked for them from her home in New Jersey, was insufficient as a matter of law to form the minimum contacts necessary for the New Jerseys courts to exercise personal jurisdiction over the Defendants.  In opposing the motion to dismiss, Mashel Law countered by arguing that New Jersey had sufficient minimum contacts with the Defendants because they: 1) chose to employ Q.B. to work for them from her New Jersey home, 2) provided Q.B. with company-issued equipment, including a laptop, a monitor, and a docking station, in New Jersey to perform her job functions remotely, 3) deducted New Jersey state income taxes, as well as New Jersey disability insurance, New Jersey unemployment insurance and New Jersey family leave insurance from Q.B.’s pay, 4) frequently communicated with Q.B. from her home in New Jersey using videoconferencing, email and telephone, 5) demanded that Q.B. commit violations of federal and state wage and hour laws from her home in New Jersey and 6) received Q.B.’s whistleblowing complaints which she communicated to them from her home in New Jersey.

In deciding whether the court had specific jurisdiction over the Defendants, the Superior Court Judge deciding the Motion to Dismiss was required to consider that decades ago in International Shoe Co. v. Washington, 326 U.S. 310, 316-17 (1945), the United States Supreme Court had instructed that a nonresident defendant must have certain “minimum contacts” with the forum state, “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). As the Court more recently explained, the “primary focus of [the] personal jurisdiction inquiry is the defendant’s relationship to the forum state.” Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773, 1779 (2017). In line with United States Supreme Court precedent, New Jersey courts have held that “courts may exercise personal jurisdiction over a non-resident defendant consistent with due process of law.’” Baanyan Software Servs., 433 N.J. Super. at 473 (quoting R. 4:4-4(e)).  Therefore, “a nonresident defendant must have certain ‘minimum contacts’ with the forum state, ‘such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.’” Jardim v. Overley, 461 N.J. Super. 367, 375 (App. Div. 2019) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). “[T]he fact-specific nature of the jurisdictional assessment…must be conducted on ‘a case-by-case basis.’” Jardim, 461 N.J. Super. at 377 (quoting Bayway Ref. Co., 333 N.J. Super. at 429). The court must consider “the burden on the defendant, the interests of the forum State and the plaintiff’s interest in obtaining relief.” Asahi Metal Indus., 480 U.S. at 113. New Jersey courts have “focused upon whether the contacts in question ‘resulted from the defendant’s purposeful conduct and not the unilateral activities of the plaintiff.’” Jardim, 461 N.J. Super. at 377-78 (quoting Lebel, 115 N.J. at 323). So too has the United States Supreme Court. “The plaintiff’s claims…’must arise out of or relate to the defendant’s contacts’ with forum.” Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., U.S., 141 S. Ct. 1017, 1020 (2021) (quoting Bristol-Myers, 137 S. Ct. at 1780). “[T]here must be ‘an occurrence between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.’” Bristol-Myers, 137 S. Ct. at 1781 (quoting Goodyear, 564 U.S. at 919).

After considering all motion papers submitted by the parties and having heard the oral argument of the attorneys of record. the Superior Court Judge denied Defendants’ motion to dismiss and held that:

“Plaintiff [Q.B.] has provided to this court competent evidence that there are adequate contacts with New Jersey in order for this matter to proceed in New Jersey. Specifically, Plaintiff resides in New Jersey. She performed her duties for Defendant’s remotely while living in New Jersey and the Defendants were aware of this. Defendant delivered to New Jersey equipment for Plaintiff to perform her work on behalf of Defendants. NJ taxes were taken out of Plaintiff’s salary and were paid to NJ. There are adequate contacts in NJ for this court to have jurisdiction of this matter.”

At Mashel Law LLC, we are experienced in handling whistleblowing claims and New Jersey Wage Payment and Wage and Hour Law claims. If you believe your employer unlawfully withheld regular or overtime wages you were legally entitled to and/or retaliated against you for blowing the whistle on what you reasonably believed were/are the employer’s unlawful activities, call the attorneys at Mashel Law (732) 536-6161, or fill out the contact form on this page for immediate help in assessing whether you have a viable claim against your employer. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.

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