About Frank Custode

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So far Frank Custode has created 59 blog entries.

What Is A Retaliation Claim Under the Family and Medical Leave Act?

In my last blog, I discussed interference claims under the Family and Medical Leave Act (“FMLA”).  (See http://custodelaw.com/leave-of-absence/interference-claim-fmla).  This blog focuses on the basis for retaliation claims under the Family and Medical Leave Act.  The Family and Medical Leave Act establishes a “minimum labor standard for leave.”  Churchill v. Star Enters, 183 F. 3d 184, 192 (3d Cir. 1999).  The purposes of the Family and Medical Leave Act are “(1) to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity; [and] (2) to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse or parent who has a serious health condition.”  Sommer v. Vanguard Group, 461 F.3d 397, 399 (3d Cir. 2006).   As such, it is important for employees to understand what constitutes retaliation under the Family and Medical Leave Act.

Under the Family and Medical Leave Act, “[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by [the FMLA].”29 U.S.C. § 2615(a)(2).  To establish a retaliation claim under the Family and Medical Leave Act, “a plaintiff must demonstrate that: he or she is protected under the FMLA, (2) he or she suffered an adverse employment action, and (3) the adverse action was causally related to the plaintiff’s exercise of his or her FMLA rights.”  Erdman v. Nationwide Ins. Co., 582 F3d 500, 508 (3d Cir. 2009).

If you have any questions about retaliation in the workplace or the Family and Medical Leave Act, please contact the Law Office of Frank A. Custode, LLC.

What is An Interference Claim Under the FMLA?

In general, the Family Medical and Leave Act (“FMLA”) allows eligible employees of covered employers to take unpaid, job-protected leave for certain specified family and medical reasons, including an employee’s own serious health condition.  As such, it is important for employees to understand their rights under the FMLA.

Among the protections afforded by the FMLA is that it is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided by the Family and Medical Leave Act.  To prevail on an interference claim, an employee need only show that the employee was entitled to benefits under the FMLA and that the employer denied such benefits.  The most obvious interference with the exercise of an employee’s rights is an employer’s refusal to authorize FMLA leave.  Interference may also include requiring an employee on leave to perform work during the employee’s leave period.

If you have any questions about the Family and Medical Leave Act, please contact the Law Office of Frank A. Custode, LLC.

When Are Staffing Agencies Considered Employers Under the New Jersey Law Against Discrimination?

In general, the New Jersey Law Against Discrimination prohibits unlawful discrimination by employers against employees in compensation, or in the terms, conditions or privileges of employment.  In today’s economy, temporary employment through staffing agencies has become common.  Thus, this blog discusses whether a staffing agency may be considered an employer for purposes of the New Jersey Law Against Discrimination when it places an individual at an employment site and the individual suffers from unlawful discrimination at the employment site.

In such a scenario, the staffing agency and the employment placement site may be considered joint employers.  “To determine whether a plaintiff is an employee, courts consider whether, under common law of agency, the defendant has ‘the right to control the manner and means by which the product is accomplished.’”  Davis v. Moreng Metal Products, Inc., et al., 2015 U.S. Dist. LEXIS 170160 (D.N.J., December 18, 2015).  Therefore, depending on the facts, an individual may have discrimination claims under the New Jersey Law Against Discrimination against not only the temporary place of employment, but also the staffing agency.

If you have suffered from workplace discrimination and/or believe that you have a claim under the New Jersey Law Against Discrimination, please contact the Law Office of Frank A. Custode, LLC.

Court Affirms That New Jersey Law Against Discrimination Protects Employees In The Process of Divorce

In June 2014, in Smith v. Millville Rescue Squad, the New Jersey Appellate Division held that the New Jersey Law Against Discrimination prohibits workplace discrimination against employees who are in the process of divorce.  (See www.custodelaw.com/discrimination/does-the-new-jersey-law-against-discrimination-protect-divorcing-employees).  On June 21, 2016, in an important victory for employees, the New Jersey Supreme Court affirmed that marital status protection under the New Jersey Law Against Discrimination includes employees in the process of divorce.

In so doing, the Court held that protections under the New Jersey Law Against Discrimination are not limited to being married or single.  Indeed, the New Jersey Law Against Discrimination prohibits discrimination against a prospective or current employee based on their status as separated, in the process of divorce, or divorced.  In rendering this decision, the Court noted that an employee should not be in fear that a decision to be married or divorced will trigger an adverse employment action, such as loss of employment.  Accordingly, this decision expands the scope of the New Jersey Law Against Discrimination, and offers protection in the workplace to employees in the process of divorce.

If you have any questions about this decision and/or are suffering from workplace discrimination, please contact the Law Office of Frank A. Custode, LLC.

Employers Cannot Shorten Time To File Action Under The New Jersey Law Against Discrimination

In a significant victory for employees, on June 15, 2016, the New Jersey Supreme Court in Rodriguez v. Raymours Furniture Company, Inc. held that employers cannot shorten the two-year statute of limitations period for claims arising under the New Jersey Law Against Discrimination by way of private agreement.  When plaintiff Sergio Rodriguez was hired by Raymour & Flanigan, he signed a job application that stated as follows: “I agree that any claim or lawsuit relating to my service with Raymour & Flanigan must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit.  I waive any statute of limitations to the contrary.”  Nearly seven months after his employment termination, Mr. Rodriguez filed suit, alleging actual or perceived disability discrimination under the New Jersey Law Against Discrimination.

Based on the above language in the job application, the trial court dismissed Mr. Rodriguez’s lawsuit as untimely.  He subsequently filed an appeal with the New Jersey Appellate Division, which affirmed the trial court’s decision (see http://custodelaw.com/discrimination/can-my-employer-shorten-the-statute-of-limitations-for-employment-law-claims).   Mr. Rodriguez then appealed to the New Jersey Supreme Court, which, as set forth above, reversed the Appellate Division’s decision, finding that, as a matter of law, an employer cannot shorten the time to file an action under the New Jersey Law Against Discrimination.

To pursue relief under the New Jersey Law Against Discrimination, an individual may file a complaint with the New Jersey Division on Civil Rights within six months of the alleged violation or may file a lawsuit in Superior Court within two years of the alleged violation.  Given that there are two available avenues of relief, the Court found that public policy requires a period of time greater than six months to obtain relief under the New Jersey Law Against Discrimination.   Thus, the Court determined that shortening the two-year statute of limitations period thwarts the New Jersey Law Against Discrimination’s legislative scheme.  Additionally, the Court found that shortening the statute of limitations period would eliminate claims and frustrate the public policy of uniformity and certainty, may compel attorneys to file premature lawsuits, and would not give employers an adequate opportunity to investigate and resolve complaints before the filing of lawsuits under the New Jersey Law Against Discrimination.

This is an important decision for the protection of employees’ rights in the workplace since it strictly prohibits employers from shortening and manipulating the statute of limitations period enacted by the Legislature for claims arising under the New Jersey Law Against Discrimination.  If you have suffered from workplace harassment, discrimination or retaliation, please contact the Law Office of Frank A. Custode, LLC.

What Employees Need To Know About the Defend Trade Secrets Act of 2016

On May 11, 2016, the Defend Trade Secrets Act became a law.  In essence, the Defend Trade Secrets Act creates a federal cause of action for trade secret theft, as long as the trade secrets at issue relate to products or services that are used in, or intended to be used in, interstate or foreign commerce.   The purpose of this blog is to briefly examine the whistleblower immunity protections of the law for employees.

In general, the Defend Trade Secrets Act insulates whistleblowers from criminal or civil liability for the disclosure of trade secrets (1) in confidence to government officials, or to an attorney for the purpose of reporting or investigating unlawful activity; or (2) in a complaint or other document filed with a court in connection with a lawsuit or other proceeding, if the document is filed under seal.  In addition, the whistleblower immunity provision of the Defend Trade Secrets Act requires employers to provide notice of the immunity provision to employees in “any contract or agreement with an employee that contains provisions governing the use of a trade secret or other confidential information.”  Failure to do so precludes an employer from the recovery of certain damages, such as the recovery of attorneys’ fees, in any action brought against an employee under the Defend Trade Secrets Act.

If you have any questions about the Defend Trade Secrets Act and/or restrictive covenant agreements, please contact the Law Office of Frank A. Custode, LLC.

 

The New Jersey Supreme Court Affirms That Treating Physicians May Establish Disability For Claims Under The New Jersey Law Against Discrimination

As a part of establishing a disability discrimination claim under the New Jersey Law Against Discrimination, a plaintiff must demonstrate the existence of an actual disability recognized under the law.   Accordingly, it is important for potential victims of workplace disability discrimination to understand how to prove the existence of a disability under the New Jersey Law Against Discrimination.

In Delvecchio v. Township of Bridgewater, decided on April 28, 2016, the New Jersey Supreme Court, for the first time, examined whether a plaintiff may rely on the testimony of a treating physician (as opposed to  a witness designated as an expert) to establish a disability under the New Jersey Law Against Discrimination.

In analyzing this issue, the Court held that the testimony of a treating physician is admissible at trial to support a plaintiff’s disability claim under the New Jersey Law Against Discrimination, as long as the proponent of the testimony gives notice of the testimony to the adverse party, responds to discovery requests in accordance with the New Jersey Rules of Court, and the testimony satisfies the New Jersey Rules of Evidence.   However, the Court noted that the treating physician’s testimony must be limited to issues relevant to diagnosis and treatment.  Therefore, if a particular claim requires medical testimony beyond the scope of patient care, expert testimony may be required.

If you have any questions about disability discrimination in the workplace and/or failure to accommodate disabilities in the workplace, please contact the Law Office of Frank A. Custode, LLC.

Does the New Jersey Law Against Discrimination Prohibit Harassment In The Workplace By Non-Employees?

Among other protections, the New Jersey Law Against Discrimination prohibits unlawful discrimination and “hostile work environment” harassment in the workplace.  To state a cause of action for “hostile work environment” harassment in the workplace, an employee must allege conduct which would not have occurred but for the employee’s gender, and was severe or pervasive enough to make a reasonable person believe that the working environment is hostile, abusive, intimidating, or offensive.

Generally speaking, harassment in the workplace is most commonly attributed to the acts of employees in the workplace.  However, New Jersey courts recognize harassment in the workplace for the acts of non-employees.  Specifically, employers may be liable under the New Jersey Law Against Discrimination for any acts of harassment by non-employees while conducting business in the employer’s work environment or while the employee is conducting company business if the employer is aware (or should be aware of) the harassment and fails to take the appropriate corrective action.   See Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 269 (App. Div. 1996).

If you have any questions about the New Jersey Law Against Discrimination, and/or harassment/discrimination in the workplace, please contact the Law Office of Frank A. Custode, LLC.

When Do Non-Compete Agreements Impose An Undue Hardship?

As technology becomes more sophisticated and competition increases, employers are taking preventative steps to protect their confidential and proprietary business information.  As such, many employers are requiring their employees to sign non-compete agreements.  Therefore, it is important for employees to understand the ramifications of signing non-compete agreements.

Under New Jersey law, a non-compete agreement is enforceable if it is “reasonable in view of all the circumstances of a particular case.”  Solari Indus., Inc. v. Malady, 55 N.J. 576 (1970).  A non-compete agreement is reasonable when it (1) protects the employer’s legitimate interests; (2) imposes no undue hardship on the employee; and (3) does not injure the public.   In all cases, “[t]he validity and enforceability of a covenant against competition must be determined in light of the facts of the case.”  Graziano v. Grant, 326 N.J. Super. 328, 343 (App. Div. 1999).  The focus of this blog is on when a non-compete agreement imposes an undue hardship on employees.

A restrictive covenant imposes an undue hardship on a former employee if it erodes the employee’s ability to earn a living after leaving a place of employment.  See Coskey’s T.V. & Radio Sales v. Foti, 253 N.J. Super. 626, 636 (App. Div. 1992).   Indeed, if a restrictive covenant binds a former employee to the former employer “by a golden handcuff,” it imposes an undue hardship on the employee.  See id.  Likewise, if a restrictive covenant makes a former employee “little more than a highly-paid indentured servant,” it is unenforceable.  See id.  Thus, a determination of whether a non-compete agreement imposes an undue hardship on an employee is very fact-sensitive.

If you have any questions about non-compete agreements and/or when non-compete agreements impose an undue hardship on an employee, please contact the Law Office of Frank A. Custode, LLC.

Does The New Jersey Conscientious Employee Protection Act Recognize Individual Liability Against Supervisors?

The New Jersey Conscientious Employee Protection Act (“CEPA”) is remedial legislation that protects whistleblowers in the workplace.  Specifically, CEPA is designed to protect employees who report illegal or unethical activities and to discourage employers from retaliating against such employees in the workplace.  Therefore, it is important for employees to understand their rights under CEPA.

A frequent question that arises is whether liability may be imposed against an individual supervisor under CEPA.   Under N.J.S.A. 34:19-2(a), CEPA defines “employers” as “any individual, partnership, association, corporation or any person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent and shall include all branches of State Government, or the several counties and municipalities thereof, or any other political subdivision of the State, or a school district, or any authority, commission, or board or any other agency or instrumentality thereof.”  (Emphasis added).  As such, courts have held that defendants may be individually liable under CEPA if they are a “person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent.”  See e.g., Palladino v. VNA of Southern New Jersey, Inc., 68 F. Supp. 2d 455, 474 (D.N.J. 1999).

If you have any questions about CEPA and/or individual liability under CEPA, please contact the Law Office of Frank A. Custode, LLC.