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So far Frank Custode has created 59 blog entries.

Understanding Failure To Hire Claims Under The New Jersey Law Against Discrimination

Generally speaking, the New Jersey Law Against Discrimination (“LAD”) prohibits employers from taking adverse employment actions against employees based on the protected characteristics of their employees (i.e., age, race, gender, etc.)   The most common type of adverse employment action is an employment termination.   However, an employer’s failure to hire a prospective employee based on unlawful discrimination is prohibited under the LAD.  Therefore, it is important for prospective employees to understand their rights under the LAD.

To establish a prima facie case of failure to hire under the LAD, an individual must demonstrate that: (1) the individual belongs to a protected group; (2) the individual applied and was qualified for the position sought; (3) despite the individual’s qualifications, the individual was rejected; and (4) after the rejection, the position remained open and the employer continued to seek applicants.  If the individual establishes a prima facie case, the burden shifts to the employer to demonstrate a legitimate, non-discriminatory reason as to why it failed to hire the individual at issue.  If the employer satisfies this burden, the prospective employee must demonstrate that the employer’s explanation was a pretext for discrimination.  See Martinez v. NBC, 877 F. Supp. 219, 227 (D.N.J. 1994).

If you have any questions about employee rights under the LAD and/or have suffered from discrimination in applying for prospective jobs, please contact the Law Office of Frank A. Custode, LLC.

What Is Associational Discrimination?

On its face, the New Jersey Law Against Discrimination (“LAD”) does not prohibit an employer from taking an adverse employment action against an employee based on the employee’s association or relationship with an individual with a disability.  However, courts have held that the LAD is broad enough to recognize claims for associational discrimination.   See Downs v. U.S. Pipe & Foundry Co., 441 F. Supp. 2d 661 (D.N.J. 2006).

Associational discrimination occurs when an employee suffers an adverse employment action (i.e. a termination, demotion or other tangible loss) based on unfounded assumptions that the employee’s relationship and/or association with an individual with a disability would affect the employee’s job performance.  In such a scenario, courts will treat the employee as the “functional equivalent” of the disabled person, who is protected under the LAD.   The most common example of associational discrimination occurs when an employer takes an adverse employment action against an employee who is taking care of a sick family member, due to the employer’s concern that the care-giving will impact the employee’s job performance.

If you have suffered from associational discrimination in the workplace, please contact the Law Office of Frank A. Custode, LLC.

NJ Supreme Court Declines To Review Gender Stereotyping Discrimination “Borgata Babes” Case

On January 19, 2016, the New Jersey Supreme Court denied certification to review Schiavo v. Marina Dist. Dev. Co., 442 N.J. Super. 346 (App. Div. 2015) (“the Borgata Babes case”).   This is a significant development given that the Appellate Division’s decision, which will stand, permits employers to maintain personal appearance standards that appear to be facially non-discriminatory, but may impact males and females differently.  Therefore, this decision remains an impediment for plaintiffs alleging gender stereotyping discrimination.

The plaintiffs in Schiavo were present or former female “Borgata Babes,” which are “costumed beverage servers” at the Borgota Casino Hotel & Spa.  Upon hiring, both male and female Borgata Babes were contractually obligated to adhere to personal appearance standards (“PAS”), such as requirements to appear physically fit, maintain weight proportional to their height, and have a clean, healthy smile.   In February 2005, the Borgata announced a “clarification” to its requirement that the Borgata Babes maintain weight proportional to their height.  Specifically, the Borgata announced that, barring medical reasons, the Borgata Babes could not increase their baseline weight, as established when hired, by more than 7%.  Plaintiffs subsequently brought suit under the New Jersey Law Against Discrimination (“the LAD”), alleging gender stereotyping, sexual harassment, disparate treatment and disparate impact.  The Borgata prevailed at the trial court level.  The Appellate Division affirmed in part; specifically the Appellate Division found that the personal appearance standards did not violate the LAD.

In so doing, the Appellate Division recognized that, an employer’s “reasonable workplace appearance, grooming and dress standards” do not violate Title VII or the LAD if they prohibit discrimination, even if they contain sex-specific language.  Therefore, the Appellate Division stated that it “cannot read the LAD to bar as discriminatory an employer’s appearance policy requiring an associate, representing a casino business to the public, must remain fit and within a stated weight range, such as required by the PAS.”

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

Appellate Division Determines That Fitness-for-Duty Examination Order Violates ADA

In a case of first impression entitled In the Matter of Paul Williams, Township of Lakewood, decided on January 25, 2016, the New Jersey Appellate Division found that an employer’s directive that an employee undergo a psychological fitness-for-duty examination was not reasonably justified under the Americans with Disabilities Act (“ADA”).  Specifically, the Appellate Division reversed the administrative decision of the Civil Service Commission finding that Mr. Williams was guilty of insubordination for refusing to comply with the employer’s directive to undergo the fitness-for-duty examination.   This is an important decision for employees since it is instructive as to when an employer’s request that an employee undergo a psychological fitness-for-duty examination is lawful.

In rendering its decision, the Appellate Division set forth the criteria for ordering an employee to undergo a lawful psychological fitness-for-duty examination. Specifically, the Appellate Division found that psychological fitness-for-duty examinations are “medical examinations” under the ADA, and thus, are lawful if they are “job-related and consistent with business necessity.”  “In other words, the employer must reasonably believe, either through direct observation or through reliable information received from credible sources, that the employee’s perceived medical condition is affecting his or her work performance or that the employee poses a direct threat.  Then, and only then, may the employer lawfully require the employee to undergo a psychological fitness-for-duty examination.”

In this matter, the Township was unable to satisfy its burden of demonstrating that its directive was “job-related and consistent with business necessity.” Specifically, the evidence in the record demonstrated that Mr. Williams’ work performance was “satisfactory” and not a basis for the demand that he undergo the evaluation.  Additionally, the Township failed to prove that Mr. Williams posed a direct threat to either himself, others or property, which was evidenced by the fact that it failed to take any action for over eight months after receiving an anonymous letter questioning Mr. Williams’ fitness for duty.   Moreover, the Appellate Division determined that the anonymous letter was not “reliable information from a credible source upon which the Township could reasonably rely in ordering a psychological examination.”

If you have any questions about disability discrimination claims and/or fitness-for-duty examination requests, please contact the Law Office of Frank A. Custode, LLC.


New Jersey DOL Publishes Ban the Box Regulations

As set forth in one of my earlier blogs, under New Jersey’s “Opportunity To Compete Act” (also known as the “ban the box law”), generally speaking, an employer cannot inquire about an employee’s criminal history during an initial interview with an applicant. The Act went into effect on March 1, 2015. On December 7, 2015, the New Jersey Department of Labor and Workforce Development published its final ban the box regulations.  Here are some of the highlights:

  • The ban the box law applies to employers with at least 15 employees, including employees outside the State of New Jersey. Therefore, if an employer takes applications for employment in New Jersey and has a total of 15 employees anywhere, the law applies.
  • Employers may use a single application for employment in multiple states. However, if there is a criminal history inquiry on the application, the application must note that employees working in the State of New Jersey do not have to answer that particular question.
  • Employers may not conduct an internet search concerning an applicant’s criminal record history prior to completion of the initial interview.
  • “Interview” is essentially defined as “live, direct contact” between the employer and the applicant. This includes in-person meetings, and telephone and/or video conferencing interviews.  An exchange of emails, however, does not suffice.
  • An employer may make a criminal history inquiry immediately following an initial interview without any deliberative process or initial screening.
  • The regulations clarify that inquiries regarding Driving While Intoxicated, Driving Under the Influence or other motor vehicle violations cannot be made during the initial interview.

If you have any questions about the ban the box law or the above regulations, please contact the Law Office of Frank A. Custode, LLC.


Appellate Division Rejects Mandatory Arbitration In Employee Handbook

In Morgan v. Raymours Furniture Company, et al., decided on January 7, 2016, the New Jersey Appellate Division held that language in a company handbook compelling arbitration and waiving an employee’s right to sue was unenforceable. This decision represents an important victory for plaintiffs since employers generally try to prevent litigation in public forums, and instead, prefer to litigate claims in private arbitration.

Typically, an employer will include disclaimer language in a company handbook making it clear that nothing in the handbook creates an employment contract or any other contractual obligations.  This disclaimer language is generally included to protect employers from claims by employees that the handbook creates implied contractual rights and duties.

Here, Raymours attempted to argue that the language in its handbook compelling arbitration was enforceable even though the handbook contained disclaimer language expressly stating that the handbook did not create any enforceable contract rights.  The Appellate Division rejected Raymours’ claim and determined that the plaintiff was not compelled to arbitrate his claims brought under the New Jersey Law Against Discrimination.  Thus, the plaintiff was free to pursue his claims in Superior Court.  In so ruling, the Appellate Division essentially found that the same disclaimers that prevent the handbook from forming an implied contract claim against an employer also prevent the handbook from compelling arbitration against a former employee.

If you have any questions about your rights in the workplace, please contact the Law Office of Frank A. Custode, LLC.

How Is “Supervisor” Defined Under CEPA?

The New Jersey Conscientious Employee Protection Act (“CEPA”) “is considered remedial legislation entitled to liberal construction, its public policy to protect whistleblowers from retaliation by employers having been long recognized by the courts” of the State of New Jersey. See Lippman v. Ethicon, Inc., 222 N.J. 362, 378 (2015).  Indeed, the purpose of CEPA is to “protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.”  See Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994).

Among the prohibitions of CEPA is that an employer shall not take any retaliatory action against any employee who discloses or threatens to disclose, to a supervisor or to a public body, an activity, policy or practice of the employer or another employer with whom there is a business relationship, that the employee reasonably believes (1) is in violation of a law, or a rule or regulation issued under the law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care, or (2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity. See N.J.S.A. 34:19-3a.

 As such, it is important that employees understand the definition of “supervisor” under CEPA.  Pursuant to CEPA, “supervisor” is defined as “any individual with an employer’s organization who has the authority to direct and control the work performance of the affected employee, who has the authority to take corrective action regarding the violation of the law, rule or regulation of which the employee complains, or who has been designated by the employer” as required under the law.   See N.J.S.A. 34:19-2(d).   Therefore, “supervisor” is broadly defined under CEPA.

If you have any questions about whistleblower retaliation or your rights under CEPA, please contact the Law Office of Frank A. Custode, LLC.

When Do Non-Compete Agreements Impose An Undue Hardship?

Under New Jersey law, 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.   Solari Indus., Inc. v. Malady, 55 N.J. 576 (1970).  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 understanding the concept of “undue hardship” in the non-compete agreement context.

A non-compete agreement imposes an undue hardship on a former employee if it erodes an employee’s ability to earn a living after leaving a place of employment. Coskey’s T.V. & Radio Sales v. Foti, 253 N.J. Super. 626, 636 (App. Div. 1992).  Indeed, if a non-compete agreement 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 imposes an undue hardship on the employee.  See id.  In determining whether a non-compete agreement imposes an undue hardship on the former employee, courts look at the scope of the non-compete agreement, including the temporal and geographical scope of the agreement.

If you have any questions about non-compete agreements, please contact the Law Office of Frank A. Custode, LLC.

Do Unemployment Eligibility Determinations Impact Subsequent Litigation?

Following an employment termination, an employee’s unemployment eligibility is frequently a contested issue. In a proceeding before an unemployment tribunal, an employee will be asked for his or her understanding about why the employment termination occurred.  In turn, the employer will articulate the alleged basis for the employment termination.   If there is subsequent litigation regarding an alleged wrongful termination, these issues will likely resurface. In this context, it is important for employees and employers to understand the ramifications of administrative decisions rendered by administrative tribunals, such as an unemployment appeal tribunal, and how, if at all, such decisions impact any subsequent litigation. The case of Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511 (2006) is illustrative of this point. In Olivieri, the employee applied for unemployment benefits, and ultimately received the benefits on the grounds that she did not leave her job voluntarily without good cause.   She then filed a lawsuit, seeking relief under the New Jersey Conscientious Employee Protection Act (“CEPA”).  During the course of the litigation, one of the contested issues was whether the plaintiff was terminated (and, thus suffered an adverse employment action under CEPA) or voluntarily resigned. Prior to trial, plaintiff’s lawyer sought to admit the unemployment appeals examiner’s decision into evidence to demonstrate her client was terminated, and asserted that the determination by the unemployment appeals examiner be given collateral estoppel effect (in other words, that the issue was already litigated during the unemployment compensation proceeding and therefore binding in the subsequent lawsuit). The trial court admitted the decision into evidence, and ultimately, the plaintiff was awarded damages by a jury.  The Appellate Division, however, reversed the decision, holding that the unemployment compensation determination should not be given collateral estoppel effect.

The New Jersey Supreme Court affirmed the decision. In so doing, the Court agreed that unemployment determinations should not be given collateral estoppel effect in subsequent actions based on the quality and procedural differences between an administrative unemployment proceeding and an action filed in New Jersey Superior Court.  Therefore, the takeaway here is that a decision by an unemployment tribunal regarding unemployment eligibility is not admissible in any subsequent lawsuit.

If you have any questions about issues pertaining to wrongful termination and/or unemployment proceedings, please contact the Law Office of Frank A. Custode, LLC.

Understanding Failure To Promote Claims Under the New Jersey Law Against Discrimination

In general, the most common unlawful action prohibited by the New Jersey Law Against Discrimination is wrongful discharge based on discrimination against an employee due to a recognized protected characteristic under the law.  However, the New Jersey Law Against Discrimination also prohibits other discrete unlawful employment actions, such as the failure to promote an employee.

To establish a prima facie failure to promote claim, an employee must prove that: (1) the employee is within a protected class; (2) the employee sought and was qualified for a promotion; (3) the employee was rejected for the promotion; and (4) members outside the protected class were treated more favorably (i.e., the promotion went to an individual outside the protected class with equal or lesser qualifications).   See Bennun v. Rutgers, 941 F. 2d 154, 170 (3d Cir. 1991).   Generally speaking, failure to promote claims are not easy to prove for employees.  Nonetheless, employees should be mindful of their rights under the New Jersey Law Against Discrimination when applying for promotions.

If you have any questions about failure to promote claims and/or your rights under the New Jersey Law Against Discrimination, please contact the Law Office of Frank A. Custode, LLC.