New Jersey Employment Attorneys Blog

EMPLOYEES ALLEGING TO BE THE VICTIM OF A DISCRIMINATORY HOSTILE WORK ENVIRONMENT WHO ENGAGE IN THE SAME COMPLAINED OF BEHAVIOR ARE LESS LIKELY TO PREVAIL.

Published on: May 5, 2022 | by Mashel Law, L.L.C.

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.

SECONDHAND OFFENSIVE COMMENTS IN THE WORKPLACE MAY CREATE A HOSTILE WORK ENVIRONMENT

Published on: April 22, 2022 | by Mashel Law, L.L.C.

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,

MASHEL LAW CONGRATULATES JUDGE KETANJI BROWN JACKSON ON HER APPOINTMENT TO THE SUPREME COURT OF THE UNITED STATES

Published on: April 8, 2022 | by Mashel Law, L.L.C.

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.

EMPLOYERS WHO FAIL TO PAY EMPLOYEES EARNED COMMISSION MAY BE HELD LIABLE FOR VIOLATING NEW JERSEY’S WAGE PAYMENT LAW

Published on: April 6, 2022 | by Mashel Law, L.L.C.

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).

A BAD FAITH INTERNAL INVESTIGATION MADE AGAINST AN EMPLOYEE MAY CONSTITUTE AN ADVERSE EMPLOYMENT ACTION UNDER NEW JERSEY’S WHISTLEBLOWER LAW

Published on: March 24, 2022 | by Mashel Law, L.L.C.

Retaliatory adverse employment actions are not only limited to termination. If an employer engages in a bad faith or a sham internal investigation against an employee after the employee blew the whistle about conduct, he or she reasonably believed violated the law, was fraudulent, or was contrary to public policy, such an employee may have a viable claim under New Jersey’s Conscientious Employee Protection Act (“CEPA”). Generally, New Jersey state courts have held that an employer’s investigation of an employee does not in itself constitute a “retaliatory action.” Beasley v. Passaic City., 377 N.J. Super. 585, 608 (App. Div. 2004). However, if an employee makes a strong showing that an investigation was illegitimate or in bad faith, then the investigation may qualify as an “adverse employment action,” permitting the aggrieved employee to file an affirmative CEPA claim. Id.

To establish a prima facie CEPA claim, a plaintiff must satisfy four elements:

(1) that he . . . reasonably believed that his . . . employer’s conduct was violating either a law or a rule or regulation promulgated pursuant to law;

AN EMPLOYEE WHO VOLUNTARILY QUITS WORK IN THE FACE OF REASONABLY IMMINENT DISCHARGE MAY QUALIFY FOR NEW JERSEY UNEMPLOYMENT BENEFITS.

Published on: March 3, 2022 | by Mashel Law, L.L.C.

If you are unemployed and you left your New Jersey job because you reasonable believed you would be fired or laid off, you may still be eligible for unemployment benefits. Generally, employees who voluntarily quit working may not qualify for unemployment benefits because “the purpose of the New Jersey Unemployment Compensation Act [UCA] is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own….” Battaglia v. Bd. of Review, 14 N.J. Super. 24, 27 (App.Div.1951); see also Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 375 (1989). The specific language in the UCA states, an individual employee shall be disqualified for benefits if he or she has left work voluntarily “without good cause attributable to such work.” “Good cause attributable to such work” means a reason related directly to the individual’s employment, which was so compelling as to give the individual no choice but to leave the employment.” N.J.A.C. 12:17-9.1(b). Put differently, the employer must be “at fault” for the employee’s quitting. This can be further conceptualized in two ways.

First, an employee who leaves work for a personal reason, or a reason not connected directly to the work, would likely be ineligible for unemployment benefits. The statute references several examples of what would constitute leaving work for personal reasons such as: a lack of transportation; care of children or other relatives; school attendance; self-employment; lack of housing; relocating to another area for personal reasons; relocating to another area to accompany a spouse, a civil union partner, or other relatives; voluntary retirement; to accept other work; or incarceration. N.J.A.C. 12:17-9.1(b)

Second, an employee who leaves work because of mere dissatisfaction with working conditions will likely be ineligible for unemployment benefits unless the work conditions are so unsafe or unhealthy that no reasonable person could withstand working in such an environment, and no remedial action was taken by the employer upon the employees’ complaint of the condition. N.J.A.C. 12:17-9.1(b). To illustrate the distinction, an office employee who complains of the office they work in being too warm or cold could not leave for good cause for such a reason because most reasonable employees would consider office temperature to be a slight discomfort. By contrast, if a construction worker were required to operate an electrical equipment to fix leaky roof may leave work for good cause if the worker can show they complained to their employer about the danger of being electrocuted and the employer made no effort to fix the condition.

VICTIMS OF WORKPLACE SEXUAL HARASSMENT OR ASSAULT MAY NO LONGER BE FORCED TO ARBITRATE THEIR CLAIMS

Published on: February 23, 2022 | by Mashel Law, L.L.C.

Recently the United States Senate amended the Federal Arbitration Act (the “FAA”) by passing S. 2342, known as “The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” (the “Amendment”). The Amendment was passed with bipartisan approval and is expected to be signed into law by President Biden. Senate Judiciary Chair Dick Durbin (D-IL), stated the overall purpose of the Amendment:

“Forced arbitration clauses requires disputes to be decided in secret proceedings where the deck is often stacked in favor of corporations and repeat players. For Americans who have been sexually assaulted or harassed, forced arbitration clauses not only deny survivors a day in court, they require the misconduct be concealed from public view. And that allows the abusers to commit more abuse… The bill before us today would give survivors of sexual assault and harassment a choice to go to court instead of being forced into arbitration under the fine print of contracts signed before the dispute arose…”

Employers often require their workers to sign arbitration agreement where workers are forced to waive their right to sue in court when legal rights provided them by employment laws are violated in the workplace. Instead, the worker must resolve legal disputes through a private binding arbitration process. Arbitration requires parties to use a secretive confidential process where a privately person, typically a practicing lawyer or retired judge, is retained to serve as an arbitrator who functions like a judge outside of court. Critics of arbitration argue the process stacks the odds against the employee because professional arbitrators typically get repeat business from big business employers as compared to individual employee claimant who will typically use an arbitrator on only one occasion during their life. Common sense dictates that that if an arbitrator wants repeat business from an employer, then he or she must avoid hurting that same employer in their corporate pocketbook. According to an article published in May 2017 on the site populardemocracy.org, “Workers in mandatory arbitration win about one fifth of the time (about 21 percent), which is 59 percent as often as they win in federal courts and 38 percent as often as they win in state courts. In other words, employees are 1.7 times more likely to win in federal courts than in arbitration and 2.6 times more likely to win in state courts than in arbitration. Median damage awards in forced employment arbitration are $36,500, compared to $176,400 in federal court employment discrimination cases and $85,600 in state court non-civil rights cases.”

EX MIAMI DOLPHINS HEAD COACH BRIAN FLORES FILES CLASS ACTION ALLEGING THE NFL DISCRIMINATES AGAINST BLACKS WHEN IT COMES TO THE HIRING OF HEAD COACHES

Published on: February 8, 2022 | by Mashel Law, L.L.C.

This past January 2022, Brian Flores was terminated by the Miami Dolphins after what objectively should be considered three successful seasons as its Head Coach. Initially, after Flores was first fired, Mike Tomlin of the Pittsburgh Steelers remained as the sole Black head coach in the NFL. Recently, in just this last week, the Miami Dolphins hired Mike McDaniel (bi-racial) and the Houston Texans hired Lovie Smith, who is Black. Naturally, this begs the question: why are there only three Black head coaches in a league where over 70 percent of its players are Black?

According to a recent federal class action complaint filed by Flores in the Southern District of New York against the NFL, with the New York Giants, Miami Dolphins, and Denver Broncos named as co-defendants, the answer lies in statistics which appear to point to the NFL and its 32 white team owners engaging in racially disparate hiring practices. However, Flores’ portrayal of the NFL as a particularly egregious offender of laws promoting equal opportunity hiring practices may not hold under closer scrutiny.

On February 1, 2022, former Miami Dolphin Head Coach Brian Flores filed a federal class action, claiming the clubs failed to hire him based on his Black race. Flores alleges in the complaint violations of both Federal law, Title VII of the 1964 Civil Rights act as well as State law, New Jerseys Law Against Discrimination (the “LAD”). More specifically, Flores claims that the Denver Broncos in 2019 and New York Giants in 2022 held or scheduled “sham” interviews in order to appear compliant with the NFL’s “Rooney Rule.”

A NEW JERSEY EMPLOYER CANNOT FIRE OR SUSPEND THEIR WORKERS FOR USING MARIJUANA WITHOUT ESTABLISHING THE EMPLOYEE WAS USING OR UNDER THE INFLUENCE OF MARIJUANA WHILE AT WORK

Published on: December 28, 2021 | by Mashel Law, L.L.C.

The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) signed into law by Governor Phil Murphy on February 22, 2021 brought new employment protections for job applicants and employees who lawfully use cannabis recreationally while not at work, namely, employees cannot be subject to an adverse employment action simply because a blood or urine test comes back positive for marijuana use. Prior to enactment of CREAMMA, protections in the workplace for those using marijuana was limited to those possessing a medical marijuana card pursuant to the Jake Honig Compassionate Use Medical Cannabis Act (the Honig Act). Under the Honig Act, it is “unlawful to take any adverse employment action against an employee who is a registered qualifying patient based solely on the employee’s status as a registrant with the Cannabis Regulatory Commission” (“Commission”). An “adverse employment action” is defined as “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.” N.J.S.A., 24:61-3. Now that CREAMMA is the law, employees in New Jersey can no longer be denied employment or otherwise subject to an adverse employment action solely for using marijuana recreationally outside of work. Put differently, a failed drug test for marijuana by itself is an insufficient reason under CREAMMA for taking an adverse employment action against an employee. This means an employer would have to establish that the employee engaged in some conduct prohibited under the law, such as using marijuana at work, or being under the influence of marijuana at work, or otherwise unlawfully possessing selling or transporting marijuana in the workplace or during work hours.

Importantly the protections provided by CREAMMA apply with respect to all employees regardless of their job classifications or the nature of their job duties and responsibilities, including employees who work in safety-sensitive job positions. Furthermore, while CREAMMA preserves an employer’s right to conduct drug testing of its workforce it places a new obligation on employers to have employees suspected of using cannabis to undergo a physical evaluation by a person who has successfully attained certification as a Workplace Impairment Recognition Expert (WIRE) permitting him/her to determine the employee’s level of impairment while engaged in performing job duties. However, because the Commission has yet to adopt standards for a WIRE certification program no physical evaluation of an employee being drug tested in accordance with CREAMMA is currently permitted.

A major failing of CREAMMA is found in the fact that it does not expressly provide a private right of action for violations of the law. This means it appears an employee subjected to an adverse employment action for testing positive for marijuana use would have to claim a violation of another employment law which does permit an employee to sue in court. For example, if an employee objected to being suspended by their employer for testing positive for marijuana because there was no evidence the employee used marijuana on the job or was under the influence of marijuana in the workplace, and then was fired for having done so, the employee maybe able to pursue a claim as a whistleblower under the New Jersey Conscientious Employee Protection Act (“CEPA”). CEPA is remedial legislation that, in relevant part, protects an employee from retaliation if he “[d]iscloses or threatens to disclose” to a supervisor or a public body an employer’s “activity, policy or practice” that the employee “reasonably believes” “is in violation of a law, or a rule or regulation promulgated pursuant to the law…” N.J.S.A. 34:19-3. A plaintiff in a CEPA case may receive compensation for lost pay and benefits, as well as mental distress damages. They can also win costs for the suit and attorney’s fees. Additionally, punitive damages, which are meant to punish the wrongdoer and deter them from any similar action in the future, are available when the employer has acted especially egregiously and/or outrageously. Damages available under CEPA are not capped by statute.

EMPLOYERS WHO ARE ON NOTICE OF AN EMPLOYEE’S DISABILITY MAY HAVE TO ENGAGE IN AN INTERACTIVE DIALOGUE TO ACCOMMODATE AN EMPLOYEE EVEN AFTER THEY ARE TERMINATED

Published on: December 4, 2021 | by Mashel Law, L.L.C.

If you have notified your employer of your disability and are then terminated, your employer may be obligated to engage in an interactive dialogue to determine if they can accommodate you even after you are terminated. Put plainly, employers can be held liable for failing to accommodate an employee even if the employer learns of the employee’s accommodation request after the employee is terminated.

Generally, the LAD prohibits employers from subjecting employees, either perceived to be or who are in fact injured, sick, or disabled, to adverse employment actions, because the employee appears less useful than the employer would like them to be. More specifically, LAD requires employers to “make a reasonable accommodation to the limitations of an employee . . . who is a person with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.” Clarke v. Atl. City Bd. of Educ., No. A-5344-07T4, 2010 N.J. Super. Unpub. LEXIS 1801, at *11 (App. Div. July 28, 2010).

To establish a prima facie case for failure to accommodate under the LAD, the plaintiff is required to demonstrate that: