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Officers from the Sacramento Police Department in California were investigating a report of vandalism when they encountered Stephon Clark, an unarmed 22-year-old African American male in the backyard of his grandmother’s house. For reasons which defy logic and basic humanity, Stephon died in a hail of 20 rounds fired from police revolvers, 8 of the bullets hit Stephon; 6 of the bullets tore into his back from behind. Whether the officers responsible for executing Stephon are ever indicted on criminal charges is uncertain, but most certainly his family will have the right to pursue civil rights violation claims against the Sacramento Police Department and its responsible officers. This is because the Constitution of the United States of America guarantees freedom from overreaching and abusive conduct by our police and other public employees of federal, state, and local government. These same rights exist here in New Jersey.

 I. Constitutional Guarantees Against Police Abuse

The 4th Amendment and 14th Amendments of the U.S. Constitution promise, respectively:

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     Most people are familiar with school yard bullies either because they were a bully, been bullied, and/or witnessed bullying. Bullying has always been prevalent in our schools such that some nostalgically view it as a ‘rite of passage.’  This old-school way of thinking has given away over time to a zero tolerance to bullying approach based on empirical studies evidencing the severe psychological damage caused to children by childhood bullying, as well as highly publicized cases where bullying had fatal consequences. In New Jersey, the suicide of Rutgers University student named Tyler Clementi served as a clarion call to do something about bullying in our schools.  Tyler was just 18 years old when he jumped from the George Washington Bridge to his death after being cyber-bullied by his roommate due to Tyler being a gay man. Statistics from the National Bullying Prevention Center show that about 20% of students report being bullied. However, that number increases drastically when a student has a ‘distinguishing characteristic,’ such as African American students (25%), those with a disability (35.3%), or identify as LGBTQ+ (74.1%). Bullying has been shown to lead to feelings of depression, anxiety and isolation, and victims of bullying are 2.6 times more likely to attempt suicide.

     In response to these stomach churning statistics, and stories like Tyler’s, New Jersey passed what has been deemed by many as the strongest anti-bullying law in the nation, The Anti-Bullying Bill of Rights Act, N.J.S.A., 18A:37-13 (“ABBRA”). ABBRA prohibits ‘Harassment, Intimidation and Bullying’ (HIB) in school, on school buses, at school sanctioned events, and even off school grounds in certain circumstances. The law also mandates procedures to investigate and report HIB, requires consequences and remedial responses where HIB has been found, and an appeals process for any decision. It creates at least three new roles within each school district to handle investigations, oversite, and HIB education. ABBRA gives a broad definition of what constitutes HIB. It can be a gesture, physical act or inaction (such as isolation). It can be communicated verbally; in writing; or electronically through telephone, cell phone, email or social networking websites. HIB can be ongoing or a single incident. For a school district to find HIB under ABBRA, the incident must be reasonably perceived or actually be motivated by some specific characteristic such as, race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability or by any other distinguishing characteristic. This can include characteristics such as obesity, scrawniness, or having lice – much broader protections than those provided by most civil rights laws.

     ABBRA provides a remedy for students who have been bullied due to a protected class characteristic (e.g., race/color, sex/gender, national origin/ancestry, religion/creed, disability, or sexual orientation), and the school has not taken adequate action to address the problem. ABBRA specifically permits a student, parent, guardian, or organization to file a complaint with the New Jersey Division of Civil Rights under the New Jersey Law Against Discrimination (NJLAD) against a school district that does not follow the ABBRA’s intensive procedure to deal with an accusation of HIB.

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Employers enjoy tremendous freedom to impose restrictions on their employees. Employment contracts, company handbooks, company policies, and even oral communications, are all mechanisms an employer may use to restrict the actions of their employees. This control may extend even after an employee leaves a company through the employer’s use of restrictive covenants. Merriam-Webster defines a “covenant” to mean a contract or agreement entered by two or more parties. A “restrictive covenant” in the employment context refers to an agreement between an employer and an employee under which the employee agrees not to engage in certain specified activities deemed competitive with the employer after the employment relationship has ended. The most common, and commonly problematic restrictive covenants, are those that impose non-compete, non-solicitation, and non-disclosure of trade secrets or proprietary information restrictions on the employee. A restrictive covenant will typically specify the duration and geographic limits of the restrictions imposed, as well as the scope of the activities prohibited by the agreement.

Although disfavored in the law, post-employment restrictive covenants may be enforceable. Strong public policy interests in fostering competition, creativity, and ingenuity, as well as the importance of not inhibiting employee mobility or consumer freedom, are the chief reasons that restrictive covenants are disfavored by the courts. Maw v. Advanced Clinical Communications, Inc., 197 N.J. 439, 447 (2004). However, the courts will consider a restrictive covenant to be reasonable and enforceable when it, “simply [1.] protects the legitimate interests of the employer, [2.] imposes no undue hardship on the employee, and [3.] is not injurious to the public.” Solari Industries, Inc. v. Malady, 55 N.J. 571, 576 (170).

In addressing the validity of a post-employment restriction preventing an employee from competing against his former employer for a period of 5 years and covering a geographic area encompassing every state “east of the Mississippi”, the New Jersey Supreme Court in Whitmyer Bros., Inc. v. Doyle, 58 N.J. 25 (1971), declared that although, “The employer has no legitimate interest in preventing competition as such … the employer has a patently legitimate interest in protecting his trade secrets as well as his confidential business information and he has an equally legitimate interest in protecting his customer relationships.” 58 N.J. at 33. In reversing the trial court’s imposition of preliminary restraints on the employee, the Court found the employer, Whitmyer Bros., had failed to show the extensive restraints it sought to impose on employee Doyle were, “necessary to protect its legitimate interests and that it would not impose undue hardship on the employee or injure the public.” Id. at 37.

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A person infected with HIV or AIDS cannot be denied medical treatment in a hospital or clinic, nor denied treatment by a medical practice or physical therapy group. HIV or AIDS under New Jersey’s Law Against Discrimination (NJLAD), N.J.S.A., 10:5-1 to 10:5-42, and its accompanying regulations have evolved to provide ever greater levels of protection for the disabled victimized by discrimination. Before a discussion of the law, let’s dispel any misconceptions about how HIV or AIDS is spread. HIV or AIDS is not spread through touch, tears, saliva, or urine. www.webmd.com/hiv-aids/top-10-myths-misconceptions-about-hiv-aids#1. You cannot catch it by: breathing the same air; touching a toilet seat or door knob or handle; drinking from a water fountain; hugging, kissing, or shaking hands; sharing eating utensils; or using exercise equipment at a gym. Id.  However, HIV or AIDS can be spread from infected blood, semen, vaginal fluid, or breast milk. Id.

The NJLAD provides in N.J.S.A., 10:5-4: All persons shall have the opportunity to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation without discrimination because of disability, subject only to conditions and limitations applicable alike to all persons. That opportunity is recognized as and declared to be a civil right. It is unlawful discrimination to refuse, withhold, or deny that opportunity, or to discriminate in furnishing it, because of disability. N.J.S.A.,10:5-12(f)(1); N.J.A.C. 13:13-4.3.

The NJLAD forbids “any owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation directly or indirectly to refuse, withhold from or deny to any person any of the accommodations, advantages, facilities or privileges thereof, or to discriminate against any person in the furnishing thereof. . . .” N.J.S.A., 10:5-12(f).  To prove a claim of unlawful discrimination under the NJLAD, a claimant must show that he or she (1) had a disability; (2) was otherwise qualified to participate in the activity or program at issue; and (3) was denied the benefits of the program or otherwise discriminated against because of his or her disability.

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Many mid-level to large companies use an attorney handbook or direct employees during the new hire onboarding process to an employee intranet site where the employer communicates its  company philosophy, policies, procedures, behavioral expectations, and worker benefits. The question often raised by employees is whether the employer is legally bound to fulfill the representations made in the handbook. Typically, not so long as the employer prominently displays a disclaimer in the handbook making clear the relationship between employer and employee is strictly a noncontractual at-will relationship, meaning the company has the right to terminate the employment relationship at any time, for any reason, or for no reason whatsoever. See generally Woolley v. Hoffman-La Roche, 99 N.J. 284 (1985). However, a recent unpublished New Jersey Appellate Division decision states that depending on the wording of the handbook disclaimer, an inroad may exist for employees to argue that the handbook disclaimer does not serve to waive an employee’s right to claim that the employer violated its policies or code of conduct by failing to put a stop to the employee being harassed or bullied in the workplace. Maselli v. Valley National Bancorp., No. A-0440-16T1, Super. Ct. N.J. slip op. (Oct. 2, 2017)

Most employees in the country are hired on an “at-will” basis. This means an employee can be fired for any reason (or no reason) so long as the reason does not violate, law, public policy, or a valid contract. English v. College of Medicine & Dentistry, 73 N.J. 20, 23 (1977). Prior to 1985, a handbook was viewed as not creating either an express or implied contractual promise whether a disclaimer was placed in the handbook or not. In Woolley, supra., the New Jersey Supreme Court held that a provision contained in the employee handbook converted the plaintiff’s employment from at-will employment to for-cause, and was enforceable against the employer. 99 N.J. 284, 289. The Court looked to the reasonable expectations of the employee and found that the handbook constituted a unilateral contract, the consideration being continued employment after receiving the handbook. Id. at 295. Woolley opened the door for various contract claims regarding different provisions of employee handbooks. However, Woolley also made clear that an employer could avoid liability for the representations and promises if it placed in the handbook a “clear” and “prominent” disclaimer explaining the policies in the handbook do not constitute a contract. Id. at 285.

In Maselli, supra., the plaintiff on appeal of a motion dismissing her complaint, argued that her former employer’ s handbook disclaimer was not worded in a manner sufficient to prevent her from pursuing a breach of contract claim stemming from her employer’s repeated failure to enforce anti-harassment provisions contained within its Code of Ethics. Although the appellate court agreed with the former employer that its disclaimer was sufficient to bar breach of contract claims related to a termination of employment (i.e., security of employment), the court found the disclaimer language sufficiently ambiguous as to make the employee’s interpretation of the disclaimer plausible, that is, the disclaimer did not bar claims for failure to enforce an anti-harassment policy established by the Bank’s Code of Ethics during her employment. Id. at * 3.  An ambiguity in a contract should be resolved against the party drafting the contract, and in favor of the employee’s interpretation of the disclaimer language. In Re Miller, 90 N.J. 210, 221 (1982). A lesson to be drawn from Maselli is that when an employee claims he or she has been bullied and harassed on the job by their boss, but the harassment was not motivated by a discriminatory animus or whistleblowing retaliation, the employer’s handbook, code of ethics, and/or conduct needs to be closely read to determine whether the disclaimer language contained within it provides an opening to allege in good faith a breach of contract claim.

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In New Jersey an employer cannot recover damages from their employee caused by the employee’s negligent errors or omissions.  Incredibly, this was not always the case. At one time, our New Jersey courts permitted employers to sue their employees to recover monies it the employer had to pay to third parties for damages caused by the employee’s negligence.  Frank Martz Coach Co. v. Hudson Bus Transportation Co, 23 N.J. Misc. 342 (N.J. Sup. Ct. 1945).  However, 16 years later in Eule v. Eule Motor Sales, 34 N.J. 537 (1961), the New Jersey Supreme Court found the proposition that an employer could seek indemnification from its employees to be “anachronistic”:

“The theoretical liability of an employee to reimburse the employer is quite anachronistic. The rule would surprise the modern employer no less than his employee. Both expect the employer to save harmless the employee rather than the other way round, the employer routinely purchasing insurance which protects the employee as well. ***”

The change in law articulated in Eule, has been applied by our New Jersey courts since then.  See e.g., Fried v. Aftec, Inc., 246 N.J. Super. 245 (App. Div. 1991) (New Jersey does not permit an employer to seek indemnity from an employee for acts of negligence causing the employer losses); Brown v. United Cerebal Palsy/Atlantic & Cape May, Inc., 278 N.J. Super. 208, (N.J. Law Div.  1994) (“The employee should not, therefore, be required to bear that cost by way of indemnification to the employer.”)

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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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Employers can be held liable under Title VII of the Civil Rights Act of 1964, the American with Disabilities Act (ADA) and New Jersey’s Law Against Discrimination (“LAD”) for discriminating against an employee because of the employee’s association with a member of a protected group (e.g., sex, race, national origin, religion, disability, etc.).  This means an employer is prohibited from taking adverse employment action against a worker in the form of a hostile work environment, demotion, failure to promote, cut in pay, wrongful discharge, etc., where for example: (a) a Caucasian worker married an African American or other person of color; (b) a worker gets engaged to a Muslim; (c) a female employee gives birth to a child with disabilities; or (d) an employee’s spouse becomes afflicted with a potentially terminal disease.

Courts have found protection against “association discrimination” under New Jersey’s LAD”.  See e.g. Downs v. U.S. Pipe & Foundry Co., 441 F. Supp. 2d 661, 665 (D.N.J. 2006) (“In the absence of any contrary authority, this Court concludes that the New Jersey Supreme Court would hold that NJLAD bars employment discrimination based upon a person’s association with a person with a disability”) (citing O’Lone v. N.J. Dep’t of Corr., 313 N.J. Super. 249 (App. Div. 1998) and Berner v. Enclave Condo. Ass’n, Inc., 322 N.J. Super. 229 (App. Div. 1999), cert. denied, 162 N.J. 131 (1999)); see also Pailleret v. Jersey Constr. Inc., 2011 U.S. Dist. LEXIS 42364 *22 (D.N.J. Apr. 19, 2011) (“The NJLAD affords protection to both disabled persons as well as individuals associated with disabled persons”).

In O’Lone, the New Jersey Appellate Division held “where the plaintiff is wrongfully discharged for associating with a member of a protected group, that it is the functional equivalent of being a member of the protected group”.  O’Lone, 313 N.J. Super. at 255 (emphasis added).  Downs, supra., is very instructive in this matter.  In that case, the pertinent facts were set forth as follows:

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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. ScheringPlough 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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Under the federal Title VII of the Civil Rights Act of 1964 and New Jersey’s Law Against Discrimination (LAD) workers are protected from sexual harassment in the workplace. There are two kinds of sexual harassment; (1) quid pro quo –agreement to perform sexual favors to receive a benefit (promotion, raise, continued employment, etc.); or (2) a sexually hostile work environment, where, for example, a co-worker makes unwelcome and offensive sexual comments and/or advances.

Showing harassment through a hostile work environment requires a plaintiff to show: (1) objectively, a reasonable person would find such an environment hostile or abusive; (2) subjectively, the plaintiff perceives the environment as hostile or abusive; (3) the hostile environment is so severe or pervasive that someone can’t function or perform work properly; and (4) the hostile work environment was sexually motivated, in other words because of a characteristic protected by Title VII and LAD. There are two ways with which a workplace environment can be considered so hostile that someone can’t function or perform work properly; (1) a single incident occurred that was extraordinarily severe/egregious; or (2) a series of incidents was sufficiently continuous and concerning to have altered the conditions of the working environment.

If an employer has workplace policies in place to prevent and rectify harassment and the employee must take advantage of those procedures before bringing a harassment claim. This is known or referred to as the “Faragher-Ellerth defense”. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Such procedures can include having a Human Resources department which accepts and reviews harassment complaints, and if concluding that harassment took place, acts appropriately against those perpetrating the harassment. However, if an employee does complain about harassment, and management, concluding harassment took place, does not move to rectify, and prevent future harassment, then the employer can be held liable for the harassment which took place.