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.

 

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.

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.