New Jersey Employment Attorneys Blog

The New Jersey Supreme Court has yet to decide whether an out-of-state remote worker who worked for a New Jersey-based company is protected by New Jersey’s laws prohibiting workplace discrimination. This is why the New Jersey District Court for the District of New Jersey in Schulman v. Zoetis, Inc., 2023 U.S. Dist. LEXIS 121702 (decided July 14, 2023) was required to predict how the New Jersey Supreme Court rule if faced with this same question. The District Court of New Jersey answered this question in the affirmative concluding that our New Jersey Supreme Court would hold that New Jersey’s Law Against Discrimination (LAD) protected out-of-state employees who worked for New Jersey based companies.

Schulman was a New Hampshire resident who worked remotely from home for defendant Zoetis, a company headquartered in New Jersey.  She sued Zoetis under, among others, New Jersey’s LAD law claiming she received less than her male counterparts performing same or similar work. Defendant filed a Motion to Dismiss arguing that the LAD did not extend to protect Schulman, a New Hampshire resident, who worked for the company from her home in New Hampshire.

The District began its analysis by acknowledging that our Appellate Division had already held that LAD protected a non-New Jersey resident who worked for a New Jersey employer from workplace discrimination where he was denied a promotion to a position in New Jersey employer’s and then was allegedly wrongfully discharged in violation of the LAD by the same New Jersey employer’s non-New Jersey subsidiary. Calabotta v. Phibro Animal Health Corp., 460 N.J. Super. 38 (App. Div. 2019). The Court in Calabotta reasoned that LAD protects “all persons” — and “[t]he statute’s plain language … does not limit the definition of ‘person’ to New Jersey residents or employees.” Id. at 61. The appellate court further noted that other relevant statutory terms defined in the LAD such as “employer” and “any individual,” did not purport to limit the statute’s coverage to those who work or live in New Jersey. Id. at 61-62.

Plaintiff Kalloo, age 61, worked for New York New Jersey Rail, LLC (NYNJR) for some 13 years as a train engineer.  He got into a physical altercation with a coworker who was only 23 years old. Witnesses seemed to corroborate that Kalloo was the instigator. Kalloo was terminated for cause for allegedly violating work safety rules. After Kalloo was fired his engineering duties were assigned to an existing NYNJR employee with engineer experience who was also much younger than him. Kalloo filed a lawsuit alleging he was wrongfully discharged because of his age in violation of the New Jersey Law Against Discrimination because he was replaced by a much younger coworker. The trial court granted summary judgment to NYNJR finding as a matter of law that there were legitimate nondiscriminatory reasons for Kalloo’s firing. Kalloo appealed.

In affirming the trial court below, the Appellate Division first reviewed the elements necessary for a plaintiff to successfully assert a prima facie claim of age discrimination. The appellate court stated that a plaintiff must show that: (1) [he] was a member of a protected group; (2) [his] job performance met the ’employer’s legitimate expectations’; (3) [he] was terminated; and (4) the employer replaced, or sought to replace, [him].” Nini v. Mercer Cnty. Cmty. Coll., 406 N.J. Super. 547, 554 (App. Div. 2009) (quoting Zive, 182 N.J. at 450). Satisfaction of the fourth element “require[s] a showing that the plaintiff was replaced with ‘a candidate sufficiently younger to permit an inference of age discrimination.'” Bergen Com. Bank v. Sisler, 157 N.J. 188, 213, (1999) (quoting Kelly v. Bally’s Grand, Inc., 285 N.J. Super. 422, 429, (App. Div. 1995)). The court went onto to state that the plaintiff must also show that age played a role in the decision-making process and that it had a determinative influence on the outcome of that process.” Garnes v. Passaic Cnty., 437 N.J. Super. 520, 530 (App. Div. 2014) quoting Bergen Com. Bank, 157 N.J. at 207. “Although the discrimination must be intentional, an employee may attempt to prove employment discrimination by using either direct or circumstantial evidence.” Ibid. (quoting Bergen Com. Bank, 157 N.J. at 208). Upon plaintiff’s demonstration of a prima facie case, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for the adverse employment action. Bergen Com. Bank, 157 N.J. at 209-10. If a defendant shows a legitimate non-discriminatory reason for the adverse action, the burden shifts back to the plaintiff to show the employer’s proffered reasons were pretextual. Id. at 210-11.

In siding with the NYNJR, the appellate court found Kalloo failed to meet the second prong of the LAD prima facie case because plaintiff failed to meet defendant’s expectations through his job performance, based on the physical altercation, threats and hostile working environment corroborated by co-workers. Plaintiff also failed to demonstrate that he was replaced by a younger employee as required under the fourth prong. Rather, his duties were reassigned to an existing employee who was already trained as an engineer. *11.  The court also concluded that even had Kalloo proved a prima facie case of age discrimination, his claims still fell short due to lack of proof that NYNJR’s nondiscriminatory reason for firing Kalloo, i.e., fighting, was pretextual.  In doing so, the court stated, “To prove pretext, a plaintiff may not simply show that the employer’s reason was false but must also demonstrate that the employer was motivated by discriminatory intent.” Zive, 182 N.J. at 449 (citing Viscik, 173 N.J. at 14). The plaintiff must persuade the court “he was subjected to intentional discrimination.” Ibid. (citing Baker v. Nat’l State Bank, 312 N.J. Super. 268, 287, (App. Div. 1998)). *12. No pretext was found because Kalloo failed to offer proof to the court supporting his contention of discriminatory intent nor did he create a genuine dispute of fact as to the physical altercation he had with a coworker. *13.

In a case of first impression, Judge O’Hearn of the United Stated District Court of the District of New Jersey (USDNJ) concluded that there is neither an express or implied cause of action under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”), N.J.S.A. 24:6I-52. Judge O’Hearn likewise held that New Jersey common law does not recognize a cause of action based on an employer’s failure to hire.  These decisions resulted in a putative class action lawsuit entitled Zanetich v. Wal-Mart being dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a cause of action upon which relief could be granted.

Plaintiff Zanetich brought his lawsuit on behalf of himself, and others similarly situated, after a job offer to work for Walmart in its Asset Protection Department was rescinded after he failed a pre-employment drug test due to positive findings of marijuana.  Zanetich argued in opposition to Walmart’s Motion to Dismiss that even though CREAMMA did not expressly provide for a private right to sue for violations of the statute, an implied private cause of action existed, and further, that his common law cause of action was also cognizable as both a wrongful termination and failure to hire claim. Zanetich made these arguments premised in part on the fact that the language of CREAMMA states, “No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items …”

In determining that CREAMMA did not create an implied cause of action for violations of the statute, Judge O’Hearn applied the three-part test established by the United States Supreme Court in Cort v. Ash, 422 U.S. 66 (1975).  This was required because the language of CREAMMA is silent as to whether it permits a person the right to sue for violations of the statute. Prior thereto, no court had considered whether CREAMMA creates an implied cause of action. After finding Zanetich had established the first Cort factor of being a member of the class for whose special benefit the CREAMMA statute was enacted, Judge O’Hearn went on to conclude that Zanetich had failed to establish the other two Cort factors, that is, he failed to establish that the New Jersey Legislature in passing CREAMMA intended the statute to provide for a private cause of action, and relatedly, failed to establish the legislative scheme embodied within CREAMMA supported an inference that an implied private cause of action existed under the statute. In making these findings Judge O’Hearn heavily weighed the fact that the State Legislature in drafting CREAMMA empowered the Cannabis Regulatory Commission (CRC) to regulate, investigate, and prosecute all violations of the statute.  Considering this wide encompassing role of the CRC and given the lack of any provision in CREAMMA as to how its employment provision can be enforced, by whom, and what remedies, if any, are available under the statute as written, “in and of itself, negates the argument that the Legislature intended for an individual to bring a private cause of action under CREAMMA.”

Recently the New Jersey Appellate Division held that a 60-year-old electronics systems engineer and computer programmer with a Ph.D. did not make out a case for age or disability discrimination under New Jersey’s Law Against Discrimination (LAD) after refusing a temporary assignment as a field telephone pole lineman. In Estate of Zoto v. Cellco Parternship, 2023 N.J. Super. Unpub. Lexis 466 (App. Div. decided March 29, 2023), Plaintiff Zoto was working his job for Cellco, which is owned by Verizon, “managing computer systems and data” when he, and other Cellco employees, were given so-called emergency work assignments (EWA) outside their usual job assignments to cover for Verizon union employees who were on strike. According to Verizon, EWAs are mandatory and may only be avoided if a form is completed and submitted through an online portal and an exception is found by the company which may be based on medical and non-medical reasons.  Although Zoto admitted he did not request through the portal an exception for his EWA assignment conceded during discovery he was in relatively good health, he nonetheless argued that at age 60 he could not safely perform the vigorous physical functions performed by a field telephone pole lineman. The Motion Court granted the defendants summary judgment and Zoto appealed.

In concluding that Zoto could not prove a LAD disability discrimination claim as a matter of law the Appellate Division discussed how our state courts have consistently held that the LAD “requires an employer to reasonably accommodate an employee’s handicap.” Tynan v. Vicinage 13 of Superior Ct., 351 N.J. Super. 385, 396 (App. Div. 2002); see also Viscik v. Fowler Equp. Co., 173 N.J. 1, 11 (2002). A failure to accommodate claim is a subset of a NJLAD discrimination claim. Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 90-91 (App. Div. 2001). To prove a failure to accommodate claim against an employer, a plaintiff must demonstrate that they: (1) “had a LAD handicap; (2 [were] qualified to perform the essential functions of the job, with our without accommodation; and (3) suffered an adverse employment action because of the handicap.” Id. at 91. “An employer’s duty to accommodate extends only so far as necessary to allow ‘a disabled employee to perform the essential functions of [their] job. It does not require acquiescence to the employee’s every demand.'” Tynan, 351 N.J. Super. at 397 (quoting Vande Zande v. State of Wis. Dep’t of Admin., 851 F. Supp. 353, 362 (W.D. Wis. 1994)).

Furthermore, an employee’s request for accommodation need not be in writing or even use the phrase “reasonable accommodation.” Tynan  at 400 (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (1999)). The employee is not required to use magic words or expressly state they are seeking accommodation, but they “must make clear that . . . assistance [is desired] for [their] . . . disability.” Ibid. (first alteration in original) (quoting Jones v. United Parcel Serv., 214 F.3d 402, 408 (3d Cir. 2000)). The employer must engage in “an informal interactive process with the employee.” Ibid. (citing 29 C.F.R. § 1630.2(o)(3)). This requires the employer to identify the potential reasonable accommodations that could be adopted to overcome the employee’s precise limitations resulting from the disability.  Once a handicapped employee has requested assistance, it is the employer who must make the reasonable effort to determine the appropriate accommodation. Ibid. *15 -*16  (internal citations omitted).]

The New Jersey Wage and Hour Law (WHL) and the New Jersey Wage Payment Law (WPL) require that New Jersey workers be timely paid for all wages earned including, but not limited to, being paid an overtime rate of 1½ times their regular rate of pay for all hours worked in excess of 40 during a workweek. On August 9, 2019 New Jersey adopted the Wage Theft Act (WFT) which effectively amended the WHL and WPL to permit recovery of unpaid wages from two (2) years to a six (6) year prior to the commencement of a lawsuit seeking to recover such unpaid wages and stated that employees are permitted to recover of all wages due “… plus an amount of liquidated damages equal to not more than 200 percent of the wages lost or of the wages due, together with costs and reasonable attorney’s fees as are allowed by the court …” (emphasis added).

While employed by IEW Construction Group (IEW) as laborers Mashel Law’s clients Christopher Maia and Sean Howarth complained to the company that they were not being paid for pre-shit and post-shift work they were directed to perform. Their complaints were ignored, and therefore, Messrs. Maia and Howarth continued to perform pre-shift and post-shift duties without pay until their employment with IEW ended.

On April 13, 2022, over two and a half years after the WTA amendments of August 6, 2019, Mashel Law filed a Class Action Complaint and Jury Demand in the Superior Court of New Jersey, Middlesex County against IEW on behalf of Messrs. Maia and Howarth and those similarly situated workers alleging, among others, that IEW violated the WHL and WPL by failing to pay Plaintiffs Maia and Howarth and the putative class members for pre-shift and post-shift work. Even though Plaintiffs filed their Complaint after the WTA was enacted, IEW filed a motion to partially dismiss Plaintiffs’ Complaint alleging Plaintiffs could not recover damages prior to the August 6, 2019 and cannot use the six-year look back period provided by the WTA.

In New Jersey an employee can prove they were the victim of workplace discrimination in violation of New Jersey’s Law Against Discrimination (LAD) or unlawful whistleblowing retaliation in violation of New Jersey’s Conscientious Employee Protection Act (CEPA) by presenting evidence that an equal or subordinate coworker influenced the employer to fire [or use another form of adverse employment action] him/her.  Indeed, the recent updated version of the New Jersey Model Civil Jury Charge recognizes that “unlawful employment discrimination … can be predicated on claims that a non­-decisionmaker’s discriminatory views impermissibly influenced the decisionmaker to take an adverse employment action against an employee.” (emphasis added) quoting Meade v. Twp. of Livingston, 249 N.J. 310, 336 (2021).

Our New Jersey Supreme Court first addressed this issue of indirect influence causing the claimed unlawful workplace discrimination or retaliation in its 1998 decision in Spencer v. Bristol-Meyers Squibb Co., 156 N.J. 455 (1998). In Spencer, the Court affirmed an employee’s introduction of her supervisor’s statement into evidence to show that an outside individual’s racial animus influenced her employer’s decision not to hire her. Id. at 456-58, 466. The employee alleged that she was denied the position because — according to what the company’s Director of Human Resources had allegedly told her — a person who was “very influential in the company” had expressed concern that the plaintiff would be his daughter’s supervisor if hired because he “would be a little concerned about the idea of having a black female of your age as her role model.” Id. at 457-58. Although the Court’s focus was on the admissibility of the statement attributed to the director under the Rules of Evidence, it is significant for our discussion because the Court affirmed the admission of the statement, which was proffered to show that the outside individual’s racial animus influenced the decision not to hire the employee Id. at 466.

In its 2013 decision in Battaglia v. United Parcel Serv., Inc., 214 N.J. 518 (2013), our State Supreme Court concluded that evidence of indirect influence could support a CEPA claim. Battaglia involved an employee who was demoted after complaining about his supervisor’s misuse of credit cards and inappropriate remarks about women in the workplace. Following his complaint, the employee was reprimanded for poor performance, placed on paid leave, and demoted. The employee brought a claim against his employer alleging that the employer violated CEPA and the LAD. In its decision the Court that when determining whether a plaintiff had established the necessary causal link between the employee’s protected conduct and the employer’s adverse employment action a jury could find that the employee had demonstrated the requisite causal link indirectly by showing proof that a supervisor who did not have the authority to subject the complaining employee  to a  retaliatory employment action but who prepared a biased evaluation because of the employee’s CEPA-protected complaints, might have sufficiently tainted the view of the actual decision maker to support relief.” Id. at 559.