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So far Frank Custode has created 62 blog entries.

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.

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.