Are Written Warnings Adverse Employment Actions Under The New Jersey Law Against Discrimination?

In general, to establish a viable claim for discrimination or retaliation under the New Jersey Law Against Discrimination, an individual must suffer an adverse employment action.  The most common example of an adverse employment action is an employment termination.  However, there are less obvious adverse employment actions, such as demotions and potentially, written warnings or reprimands. In Prager v. Joyce Honda, Inc., 447 N.J. Super. 124 (App. Div. 2016), the New Jersey Appellate Division examined when circumstances dictate that the issuance of written warnings constitute an adverse employment action under the New Jersey Law Against Discrimination in the context of a retaliation claim asserted by the plaintiff when the plaintiff received the written warnings following complaints about unlawful conduct in the workplace.

To have actionable retaliatory conduct, courts examine whether “a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  See Roa v. Roa, 200 N.J. 555, 575 (2011).  The United States Supreme Court has determined that “the anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.”  See Burlington Northern & Sante Fe Railway v. White, 548 U.S. 53, 67 (2006).

Applying that standard in Prager, the Appellate Division concluded that the written warnings issued to plaintiff did not establish an adverse employment action because plaintiff was unable to prove tangible injury or harm given that she quit her job the day after receiving the warnings.  However, the Appellate Division stated, “[t]o be clear, we accept that written warnings might, in some circumstances, be materially adverse to an employee – in a formal system of progressive discipline for instance.”  In light of this ruling, it is important for employees as well as employers to understand the ramifications of issuing written warnings to employees shortly following complaints made by employees about actions that may be protected under the New Jersey Law Against Discrimination.

If you have any questions about adverse employment actions under the New Jersey Law Against Discrimination, please contact the Law Office of Frank A. Custode, LLC.

Do Mandatory Flu Vaccination Policies Violate The New Jersey Law Against Discrimination?

With the cold weather coming in and winter around the corner, a hot-topic issue is whether the New Jersey Law Against Discrimination protects employees who are discharged for failure to comply with an employer’s mandatory flu vaccination policy.  The New Jersey  Appellate Division recently weighed in on this issue in Brown v. Our Lady of Lourdes Medical Center.

Plaintiff worked for the Medical Center as a community health educator.  In 2012, the Medical Center implemented its mandatory flu vaccination policy, requiring all employees to obtain an influenza vaccine each year.  The policy’s stated purpose was “to minimize transmission of the [flu] in the workplace by providing occupational protection to [staff] and thus preventing transmission to fellow [staff members] and to members of the community . . .”  Significantly, employees “who [could not] receive vaccination for religious beliefs supported by documentation from clergy” or due to “documented medical conditions” were exempt from the policy’s requirements.

Initially, Plaintiff requested a medical exemption under the policy, which was denied; and ultimately, she was terminated for failure to comply with the policy.  Following her termination, Plaintiff filed a complaint alleging violations under the New Jersey Law Against Discrimination for failure to accommodate her medical condition.  After Defendants filed their Answer, Plaintiff sought to amend her complaint to include a claim of religious discrimination.  The trial court denied Plaintiff’s application to amend her complaint.  On appeal, Plaintiff argued that the policy was “discriminatory on its face” because it “confers a benefit on religious believers that is not available to non-believers” and “bears no rational relation to issues of public health and patient safety,” as “it imposes no restrictions of any kind on those who have been granted exemptions” in order to “facilitate its stated purpose.”

The Appellate Division rejected Plaintiff’s argument for the following reasons:  Plaintiff’s proposed amendment was missing a “key element” in that it failed to allege that she was a member of a protected class, i.e., whether she was in a protected class due to her association with a particular religion or with no religion at all; the proposed amendment did not allege that members of only certain religions were granted religious exemptions while members of other religions were denied; and Plaintiff did not allege that she had a religious objection to being vaccinated, or requested a religious accommodation and was denied the accommodation.  Therefore, based on the foregoing facts, the Appellate Division affirmed the trial court’s decision to deny Plaintiff’s motion to amend her complaint.

Significantly, however, this decision does not necessarily preclude employees from challenging mandatory flu vaccination policies.  Whether mandatory flu vaccination policies violate the New Jersey Law Against Discrimination depends on the language of the policy at issue and the application of specific facts.  Therefore, if you have any questions about the New Jersey Law Against Discrimination and/or flu vaccination policies in the workplace, please contact the Law Office of Frank A. Custode, LLC.

When Are Independent Contractors Considered Employees Under The New Jersey Law Against Discrimination?

Generally speaking, independent contractors are not considered “employees” within the meaning of the New Jersey Law Against Discrimination.  However, simply characterizing a worker as an independent contractor does not necessarily mean that the worker is an independent contractor.  As such, it is important for workers to understand whether they are entitled to protection as “employees” under the New Jersey Law Against Discrimination.

To determine a worker’s status under the New Jersey Law Against Discrimination, courts apply a “totality of circumstances” test based on the following factors:  (1) the employer’s right to control the means and manner of the worker’s performance; (2) the kind of occupation – supervised or unsupervised; (3) skill; (4) who furnishes the equipment and workplace; (5) the length of time in which the individual has worked; (6) the method of payment; (7) the manner of termination of the work relationship; (8) whether there is annual leave; (9) whether the work is an integral part of the business of the employer; (10) whether the worker accrues retirement benefits; (11) whether the employer pays social security taxes; and (12) the intention of the parties. See Pukowsky v. Caruso, et al., 312 N.J. Super. 171, 182 (App. Div. 1998).

If you have any questions regarding whether you are an employee or independent contractor under the New Jersey Law Against Discrimination and/or believe you are suffering from workplace discrimination, retaliation or harassment, please contact the Law Office of Frank A. Custode, LLC.

Supreme Court Upholds $2.5 Million Verdict In New Jersey Law Against Discrimination Case

Plaintiffs Ramon and Jeffrey Cuevas were employees of Defendant Wentworth Property Management Corporation (“Wentworth”).   In their lawsuit against Wentworth, Plaintiffs claim that they were subject to race-based discrimination, a hostile work environment and retaliation in violation of the New Jersey Law Against Discrimination.  Among the discriminatory comments alleged in the Complaint were references to Plaintiffs as “Chihuahuas,” “Latin Lovers,” and “the Rico Suave brothers.”  Plaintiffs further alleged that, within one month of complaints to management about the discriminatory misconduct, both brothers were terminated.

At trial, Plaintiffs testified in detail about nine-months of racial harassment and hostility in the workplace.  Specifically, Ramon Cuevas testified about how the harassment and hostility made him feel “chopped down day by day, month by month,” “despondent,” “exhausted,” and “helpless.”  Jeffrey described how the company’s degrading conduct toward him affected his “psyche” and ruined his “self confidence.”  At the conclusion of the trial, the jury awarded Plaintiffs $2.5 million in damages, including $800,000 in emotional distress damages to Ramon and $600,000 in emotional distress damages to Jeffrey.  Following the trial, the trial court denied Wentworth’s motion for a remittitur of the emotional distress damages (i.e., a request for the court to reduce the amount of emotional distress damages to Plaintiffs).  Defendants appealed, and the Appellate Division affirmed Plaintiffs’ emotional distress damages award.  The Defendants then filed a petition for certification (which was granted by the Supreme Court) on the issue of whether the trial court erred in denying Wentworth’s request for a remittitur.

In reviewing the trial court’s decision, the Supreme Court upheld the trial court’s denial of the motion for a remittitur and upheld the emotional distress damages awards.  In so doing, the Court reaffirmed that expert testimony is not required to support an award of emotional distress damages, and found that the awards were not so “wide of the mark,” so “pervaded by a sense of wrongness,” so “manifestly unjust to sustain,” that they “shock the judicial conscience.”  This is a significant win for plaintiffs in actions alleging violations under the New Jersey Law Against Discrimination.

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

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 https://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 https://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.