The Importance of Anti-Harassment Policies In New Jersey Law Against Discrimination Cases

The recent Appellate Division decision of Edries v. Quick Chek Food Stores, Inc., (A-0091-15T1, January 20, 2017), illustrates the importance of anti-harassment policies in lawsuits involving claims under the New Jersey Law Against Discrimination.   When Quick Check hired plaintiff, she received the company’s Team Member Handbook, which contained an anti-harassment policy.  The company also had a separate “No Harassment” policy, which was distributed to plaintiff; and the company required plaintiff to watch training videos on sexual harassment.

At the company’s “Total Customer Dedication” awards dinner, one of Quick Chek’s loss prevention representatives made a series of vulgar comments to plaintiff.  The next day, plaintiff completed an anonymous survey, noting that the loss prevention representative has “a filthy and nasty mouth and he needs to stop with his sexual comments . . .”  In addition, in response to a question regarding what she would add or change about the dinner, plaintiff stated, “just to feel comfortable and not have to deal with people like [the loss prevention representative] and his sexual comments.

Upon receipt of the survey, Quick Chek conducted an investigation regarding the incident.  The investigation included meetings with plaintiff’s supervisor, discussions with human resource members, and a meeting with the company’s General Counsel.  In response to plaintiff’s complaints, the company issued a “constructive advice” written warning to the alleged harasser, which included requiring the employee to decline assignments at plaintiff’s store,  attend an anti-harassment training program,  refrain from making any further inappropriate comments, and refrain from taking any retribution against plaintiff.

Nearly two years later, plaintiff went on disability leave, and asked the company’s Chief Executive Officer if the company could demote the alleged harasser, or move him to different region “so she would never have to go to meetings where he speaks . . .” She also advised that she refrained from applying for promotions because she was afraid of having to interact with him.  Plaintiff never returned to work from her disability leave, and filed a complaint alleging hostile work environment and retaliation in violation of the New Jersey Law Against Discrimination.

At the conclusion of discovery, the trial court dismissed the case, granting summary judgment in favor of Quick Chek.  In so doing, the trial court concluded that the company had “effective procedures for reporting and responding to complaints of harassment” and that the company “did, in fact, respond in an effective way to [plaintiff’s] complaint of harassment.”  With regard to plaintiff’s retaliation claim, the trial court found that there were no “adverse employment consequences to [plaintiff’s] complaint.”

The Appellate Division affirmed the trial court’s rulings.  In so affirming, the Appellate Division agreed that Quick Chek had effective procedures in place to report and remedy harassment given that it had “formal policies prohibiting harassment in the workplace,” “complaint structures for employee’s use,” and conducted “anti-harassment training.”  The Appellate Division also noted that the company disciplined the alleged harasser and there was no evidence that he ever harassed plaintiff or any other employee again.

From an employer’s perspective, this case clearly illustrates the importance of having anti-harassment policies in place and implementing said policies.  From an employee’s perspective, the case illustrates the importance of utilizing a company’s anti-harassment policies in the event of harassment and/or discrimination in the workplace.  Indeed, if the employer in this matter had not adequately remedied the alleged harassment, the result of this matter may have been different.

If you have any questions about anti-harassment policies and/or workplace harassment or discrimination, please contact the Law Office of Frank A. Custode, LLC.

Is It Lawful To Fire An Employee Who Refuses To Sign A Non-Compete Agreement?

In today’s economic climate, restrictive covenants (including non-compete agreements) are becoming increasingly more common in the workplace.  Indeed, it is important for employers to protect their legitimate business interests, such as pricing information, customer lists, trade secrets, marketing strategies, and other confidential and proprietary information.   Likewise, employees should be mindful of potential post-employment restrictions placed in non-compete agreements since such restrictions may ultimately cost them potential job opportunities.  This blog focuses on the scenario when an employer presents an employee with a non-compete agreement, and the employee refuses to sign the agreement.

In Maw v. Advanced Clinical Communications, Inc., 179 N.J. 439 (2004), the Supreme Court of New Jersey held that an employee’s termination following a dispute over the terms of a non-compete provision in her employment agreement was not a violation of a clear mandate of public policy as contemplated by the New Jersey Conscientious Employee Protection Act (“CEPA”), which prohibits, among other things, an employer from taking retaliatory action against an employee who “objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes . . . is incompatible with a clear mandate of public policy concerning public health, safety or welfare or protection of the environment.”  In so doing, the Court found that a dispute over the terms of a non-compete agreement is private in nature as opposed to implicating a clear mandate of public policy.  Thus, the employer’s decision to terminate the employee for refusal to sign the non-compete agreement was not retaliatory.

Therefore, the key takeaway is that, in New Jersey, it is generally lawful for an employer to terminate an employment relationship due to an employee’s refusal to sign a non-compete agreement.   However, the scenario gets more complicated when out-of-state employees are at issue.  In such a scenario, careful examination of the wrongful termination law for the particular state(s) at issue is required.

If you need any assistance with non-compete agreements, please contact the Law Office of Frank A. Custode, LLC.

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.