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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.

In East Bay Drywall, LLC v. Department of Labor & Workforce Development 2022 N.J. LEXIS 671 (2022) the New Jersey Supreme Court reaffirmed that an alleged employer must satisfy each element of the ABC Control test to establish they properly classified their workers as independent contractors as opposed to employees. N.J.S.A. 43:21-19(i)(6)(A) to (C).  The specific question before the Supreme Court was whether a drywall installation company named East Bay Drywall had properly classified its workers hired on a per job basis as independent contractors under New Jersey’s Unemployment Compensation Law. Following an audit performed by the Department of Labor and Workforce Development (DLWD) finding some of those working for East Bay Drywall were improperly classified as independent contractors, the company appealed the findings which made its way to the Commissioner of the DWLD who concluded that the sixteen workers at issue were misclassified by East Bay Drywall as independent contractors. Further appeals of the Commissioner’s decision eventually ended up before our state’s highest court where it was concluded that East Bay Drywall failed its burden to satisfy each element of the ABC test.

The text of N.J.S.A. 43:21-19 establishing the ABC test reads as follows:

Services performed by an individual for remuneration shall be deemed to be employment . . . unless and until it is shown to the satisfaction of the division that:

In Okakpu v. Irvington Bd. of Education, 2022 N.J. Super. Unpub. LEXIS 1297 (decided July 18, 2022), our Appellate Division was asked to decide whether a triable issue was created by the Irvington Board of Education (“IBOE”) stating that one of the reasons it decided not to renew the contract of non-tenured Nkemdilum Okakpu was her conduct in displaying the flag of Nigeria, her country of origin, outside her classroom.  In doing so, the Appellate Division reversed the trial court below which granted the IBOE’s motion for summary judgment on the basis that the plaintiff had “failed to establish that [the Board’s] decision to non-renew her was based on anything other than a bona fide evaluation of her job performance and disciplinary issues.”

On appeal the Plaintiff argued, in part, that the IBOE “listing the flag of Nigeria outside her classroom” on her non-renewal paperwork was “inherently discriminatory on its face” and, therefore, direct evidence of national origin discrimination which by itself should have been sufficient to defeat the IBOE summary judgment motion. In opposition, the IBOE argued “the plaintiff failed to prove their conduct was discriminatory toward Nigerians or created an animus towards her protected class.” The Appellate Division then reviewed the different analytic approaches a court must take depending on whether the employment claim is based on purely circumstantial evidence as opposed to the existence of direct evidence of discrimination. A review of the court’s insightful discussion in this regard is found to be edifying.

The Appellate Court began by explaining how an employee who commences an action seeking redress for an alleged violation of the LAD “may attempt to prove employment discrimination by either direct or circumstantial evidence.”  Bergen Com. Bank v. Sisler, 157 N.J. 188, 208 (1999)). Determining which analytical framework controls an LAD claim “depends upon whether the employee attempts to prove employment discrimination by . . . direct or circumstantial evidence.” Grande v. Saint Clare’s Health Sys., 230 N.J. 1, 16 (2017).

Be careful what you post on social media sites on the internet because it may cost you your job. Recently, our New Jersey Appellate Division issued an opinion holding that neither the First Amendment nor Article I, paragraph 6 of the New Jersey Constitution prevents a private employer from terminating an at-will employee for posting racially insensitive comments about the Black Lives Matter (BLM) movement on her personal Facebook account.

In McVey v. AtlantiCare Medical System Incorp, et al., 2022 N.J. Super. LEXIS 70 * (App. Div., May 20, 2022), McVey, a nurse who rose through the ranks at Atlantic Care Regional medial Center to become its Corporate Director of Customer Service. Using her private Facebooks account, McVey posted that she found BLM to be racist arguing that it causes segregation writing, “Have you ever hear[d] of ‘white lives’ matter or ‘[J]ewish’ lives matter[?] No. Equal opportunity.” According to the court opinion she further stated:  “[T]hey are not dying . . . they are killing themselves.” McVey later posted that she “support[ed] all lives . . . as a nurse they all matter[,] and [she] d[id] not discriminate.” McVey added she did “not condone the rioting that ha[d] occurred in response to ‘this specific [B]lack man[‘]s death.'” *5. An AtlantiCare administrator later discovered McVey’s Facebook posts and she was later fired following the completion of an internal investigation.

McVey filed a wrongful discharge lawsuit claiming she was unlawfully punished for exercising her federal and state constitutional rights to freedom of speech. AtlantiCare filed a motion to dismiss arguing that a wrongful termination complaint against a private employer cannot be based on a constitutional free speech claim in cases where, as here, there is no state action. *6-*7. Following argument, the trial court rendered an oral decision, accepting AtlantiCare’s contention and dismissing McVey’s complaint. McVey appealed.

Our Appellate Division recently made clear it would not be receptive to sex based hostile work environment claims where it is established that the Plaintiff “gave as good as she got” while working in an environment rife with foulmouthed name calling and invectives. In Bouziotis v. Iron Bar, 2022 N.J. Super. Unpub. LEXIS 635, at *2 (App. Div. Apr. 19, 2022) an appellate court affirmed a trial court’s decision to grant the employer’s motion for summary judgement against a former female employee who alleged she was the victim of a hostile work environment based on her sex.

In September 2016 the Plaintiff-Employee, Lauren Bouziotis (“Bouziotis”) started working as a part-time bartender for Defendant-Employer Iron Bar (“Iron Bar”). Id. Shortly thereafter, Iron Bar’s part owner, Darrell Remlinger (“Remlinger”) stopped addressing Bouziotis by her proper name and instead started referring to her by “alternate names” used to describe someone with an oversized posterior or buttocks area. Id.  Curiously, the court felt that it would be too insensitive of it to actually state in its written decision what the “alternate name” used was.

Specifically, Remlinger used “alternative names” to refer to Bouziotis when publishing the weekly schedule, as well as on six out of forty of Bouziotis’s pay envelopes. In February 2017 Bouziotis complained about Remlinger calling her “alternate names” to General Manager Dave Monllor (“Monllor”), who also reported to Remlinger. Over the course of a year Bouziotis had complained approximately complained thirty (30) times to Monllor. However, Bouziotis never directly asked Remlinger to stop addressing her by these “alternate names.” In May 2018, Bouziotis submitted her two-week notice and a letter of resignation. Bouziotis’s resignation letter failed to state a reason for her resignation nor did the letter make any mention of Bouziotis’s belief she was the victim of sex discrimination. Afterwards, Bouziotis nevertheless proceeded to file a lawsuit against Iron Bar. Bouziotis alleged in her filed complaint that she was the victim of discrimination and wrongful termination, hostile work environment, retaliation, and aiding and abetting harassment under the LAD. Id. at *3. Ironbar answered and subsequently moved for summary judgement as a matter of law against Bouziotis’s claim. Id.

If you are a New Jersey employee and you overhear or learn secondhand that someone is using offensive language to disparage you or others based on protected class characteristics such as race, age, sex, disability, sexual orientation, etc., you may qualify as a victim of a discriminatory based hostile work environment under New Jersey’s Law Against Discrimination (the “LAD”).  This may be true even if the prejudiced language is not directed at a protected class you are a member of.

Generally, when a Plaintiff-Employee alleges a hostile work environment under the LAD based on a legally protected class characteristic (i.e., age, race, sex, national origin, etc.) The Plaintiff-Employee must demonstrate that the Defendant-Employer’s conduct,

(1) would not have occurred “but-for” the Plaintiff-Employee’s protected characteristic,

We congratulate soon-to-be Associate Justice Ketanji Brown Jackson on the Senate vote yesterday confirming her appointment to the Supreme Court of the United States. Justice Brown Jackson, who will be the first woman African American appointed to the Court, is extremely well qualified for the position. Having graduated magna cum laude from Harvard University in 1992 she went onto to Harvard Law School and became supervising editor of the Harvard Law Review.  After law school she served as a law clerk for a United States District Judge, a Judge of the U.S. Court of Appeals for the First Circuit and then for retiring Supreme Court Justice Stephen Breyer.  After her clerkship with Justice Breyer, she went into private legal practice with a couple of law firms and eventually took a position as an assistant federal public defender in Washington D.C. In 2009, Judge Brown Jackson was nominated by President Obama to serve on the United States Sentencing Commission.  This was followed by her appointment in 2012 as a sitting judge to the United District Court for the District of Columbia and then in 2021 to a seat on the United States Court of Appeals for the D.C. Circuit.  Suffice to say Judge Brown Jackson’s well-rounded legal career has been a very illustrious one and we are confident she will be an effective and valued member of the United States Supreme Court once sworn in.

Judge Brown Jackson’s historic appointment to the Court brings to mind the late Martin Luther King, Jr.’s astute observation that, “the arc of the moral universe is long, but it bends toward justice.”  This statement is especially apropos given 155 years have passed since then Chief Justice of the U.S. Supreme Court Roger B. Taney, a virulent racist and slaveowner, read from the bench on March 6, 1857, the decision he authored in Dred Scott v. Sandford 60 U.S. 393 (1857) where he declared Scott, then a slave, “had no rights which the white man was bound to respect” and therefore had no standing to bring a lawsuit in a court of law. By way of background, in 1846, an enslaved Black man named Dred Scott and his wife, Harriet, sued for their freedom in the St. Louis Circuit Court claiming that they should be deemed free persons due to their residence in Missouri, a free territory in the North where slavery was prohibited. Their lawsuit started an 11-year legal battle culminating in Chief Justice Taney reading the most abhorrent decision ever issued by the Supreme Court of the United States.

Taney framed the question before the Court as to whether a black person whose ancestors were brought into this country, and sold as slaves, could be entitled to all the rights, and privileges, and immunities, guaranteed by the Constitution of the United States to any of its citizens. The Court in a 7-2 decision concluded that people of African ancestry were not intended by the founder of this country to be considered as “citizens” as the word is used in the Constitution and therefore could not claim any of the right and privileges which the Constitution provides for its citizens.  Dred Scott further held that because slaves were property, not citizens, the Missouri Compromise of 1820 prohibiting slavery north of the 36’30 line was unconstitutional because it violated citizens’ constitutional rights prohibiting unlawful seizure of property. Many historians believe this decision which virtually made it impossible to stop the spread of slavery in the United States and was widely decried in the North served to hasten the onset of the Civil War. In 1868, the Fourteenth Amendment granting citizenship and equal civil and legal rights. to all persons born in the Unites States, regardless of color, effectively overturned the Dred Scott decision.

New Jersey employees compensated on a commission basis maybe considered wage earners who are afforded the same legal protections as hourly or salaried employees under the New Jersey Wage Payment Law (the “NJWPL”). Consequently, when employers fail to pay employees the full value of commissions earned an employer may be liable for violating the NJWPL because the statute requires employers to pay the full value of wages due to their employees on regular paydays. Specifically, the NJWPL defines “wages” as:

“the direct monetary compensation for labor or services rendered by an employee, where the amount is determined on a time, time, task, piece, or commission basis excluding any form of supplementary incentives and bonuses which are calculated independently of regular wages and paid in addition thereto.”

N.J.S.A. 34:11-4.1(c).

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