The Second Circuit in Vasquez v. Empress Ambulance Service, Inc., recently adopted the “cat’s paw” theory of liability under Title VII and found that the retaliatory intent of a low-level, non-supervisory employee may be ascribed to an employer where “the employer’s own negligence gives effect to the employee’s retaliatory animus and causes the victim to suffer an adverse employment decision.”

The Plaintiff in this case was an emergency medical technician. She reported to her supervisors that a fellow EMT had sexually harassed her. The harasser suspected that the Plaintiff had complained about his behavior and, in retaliation, manipulated a series of text messages and photos to make it appear as if it was in fact Plaintiff who was soliciting a sexual relationship with him, and presented the altered evidence to the Employer during its investigation.

The Employer then concluded that Plaintiff was having an inappropriate sexual relationship with the co-worker and terminated her. Plaintiff informed the Employer that the co-worker was lying to cover up his own indiscretions and offered to show the Employer her unaltered cell phone messages. The Employer declined to review Plaintiff’s cell phone and further refused to show her the “racy self-taken photo” that the co-worker claimed Plaintiff had sent him. Apparently, this photo was obscured and Plaintiff’s face could not be identified.

The NJ Appellate Division has ruled, once again that it will not require enforcement of an arbitration clause absent a showing that the clause constituted a clear waiver by the plaintiff of his or her right to a jury trial.

In Anthony v. Eleison Pharmaceuticals LLC, Docket No. A-932-15T4 (App. Div. July 18, 2016), a former executive filed a lawsuit against his former employer under the New Jersey Wage Payment Act, alleging that the company failed to pay him wages that were due to him following the termination of his employment. The lawsuit also included breach of contract claims. The employer filed a motion to dismiss the lawsuit and order arbitration pursuant to a clause in the employment agreement which stated, among other things, that “[t]he parties agree that should any dispute arise out of this Agreement, a phased dispute resolution process shall resolve the dispute,” ending in binding arbitration. The trial court granted the employer’s motion, stating that the arbitration clause constituted a valid waiver by the employee of his right to pursue his claims in a judicial forum.

The lower court’s ruling in Anthony was clearly in error. The New Jersey Supreme Court ruled in Atalese v. U.S. Legal Services Group LP, 219 N.J. 430 (2014), that NJ courts will not enforce arbitration clauses unless they contain explicit language informing the employee that he or she was giving up the right to go to court and have a jury trial. The arbitration clause at issue in Anthony clearly did not contain such language. Accordingly, the Appellate Division reversed the lower court and the case will proceed to trial.

We are pleased to write that the New Jersey Supreme Court ruled, last week, that the two-year statute of limitations for filing a discrimination claim under the NJ Law Against Discrimination (“LAD”) couldn’t be shortened by an employer seeking to insert a clause in an employment agreement or contract.

The case arose when Raymours Furniture Co., fired an employee, Sergio Rodriguez who had signed a job application which stated, in capital letters, that he agreed “that any claim or lawsuit relating to [his] service with Raymour & Flanigan must be filed no more than six moths 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.” Mr. Rodriguez claimed that Raymour & Flanigan wrongfully terminated him on account of his disability and in retaliation for filing a workers’ compensation claim. He sued under the LAD nine months after he was fired. Both a trial judge and the Appellate Division ruled that the lawsuit was time-barred, even though New Jersey law allows a plaintiff two years to bring such an action.

The Supreme Court disagreed with the lower courts. The Court noted that the “contractual shortening of the LAD’s two-year limitations period for a private action is contrary to the public policy expressed in the LAD.” The Court noted the unequal bargaining power of the potential employer and employee. Clearly, mandating that the employee agree to a shorter statute of limitations in an employment application before they can be hired is, by definition a contract of adhesion. Although some employers may argue that two-years is too long of a time period to hold an employer responsible for defending an action for discrimination – where documents may have disappeared, key witnesses have left the company and the memories of decision-makers have faded – it is not for a private employer to alter a statutory limitation period by contract. We believe that this could only be done, after careful consideration by the legislature.

Uber Technologies Inc., no stranger to litigation brought by its drivers across the country, is now facing a possible class action in federal court in New Jersey. The suit accuses Uber of violating New Jersey wage and hour laws by failing to pay its drivers overtime for working more than 40 hours per week and failing to reimburse them for vehicle costs.

Jaswinder Singh, the named plaintiff in the complaint, a New Jersey resident, drove for Uber for more than one year and regularly exceeded 60 hours of work per week, yet, the lawsuit claims, was not paid an overtime premium of one and a half times his regular rate for the hours that exceeded 40 in a week. Moreover, the suit states that Singh was also required to bear expenses for his vehicle, gas, tolls, mobile phone and other expenses related to his employment, which is unlawful under the New Jersey Wage and Hour Law and the New Jersey Wage Payment Law.

Mr. Singh seeks to represent a class of individuals who worked as drivers for Uber as well as Uber X, a related company. The complaint filed in this lawsuit claims that, in accordance with the New Jersey wage statutes, Mr. Singh and the other drivers would be classified as “nonexempt” workers who would be entitled to be paid a premium rate for hours work beyond the normal 40-hour work week. Nonexempt workers are generally those who do not have the authority to hire and fire other employees, do not have the authority to schedule other employees, and do not perform work directly related to the management operations that involved the exercise of discretion or independent judgment over matters of significance.

On May 9, 2016, the Equal Employment Opportunity Commission (“EEOC”) released new guidance on what is a reasonable accommodation under the Americans with Disabilities Act (“ADA”). The guidance makes clear that employers must not only provide employees with disabilities access to leave as an accommodation on the same basis as similarly situated employees without disabilities, but may be required to modify its policies to provide leave for a disability even where the employer does not offer leave to other employees. The guidance also addresses common issues for employers including analyzing undue hardship, requests for “indefinite” leave, maximum leave policies, and return to work issues. The guidance is a welcome relief for both employees and employers since it clears up some previous ambiguities in the law’s application.

The guidance states that if an employee requests leave related to a disability and the leave falls within the employer’s existing leave policy, the employer should treat the employee making the request the same as an employee who requests leave for reasons unrelated to a disability. For example, if an employer provides sick leave as well as annual leave that may be used for any purpose, an employer may not require an employee to designate leave as sick time simply because it is being used for a purpose related to a disability, because doing so would deny the employee use of annual leave due to his or her disability.

Further, the guidance provides that an employer must consider unpaid leave as a possible reasonable accommodation even when:

A recent case from the United States Court of Appeals for the Eighth Circuit makes clear that an employer will lose its contractual right to arbitration if it proceeds in litigation for eight months.  In Messing v. North Central Distributing Inc., the plaintiff, a former Vice President, brought a breach of contract and wrongful termination claim against his former employer.  The company actively engaged in defending the case in the litigation, including filing an answer with 24 affirmative defenses, removing the case to federal court, attending discovery conferences and setting discovery schedules, filing a venue transfer motion, and agreeing to a trial date.  Eight months into the litigation, the employer sought to compel arbitration under the Vice President’s employment contract.  The District Court denied the employer’s motion to compel arbitration, reasoning that the company had waived its right to arbitrate since 1) it knew of the existing right to arbitration, and 2) it had prejudiced the employee by acting inconsistently with that right.
On appeal, the Eighth Circuit upheld the lower court’s ruling, stating that the employer had failed to do “all it could reasonably have been expected to do” to assert its right to arbitration earlier.  Indeed, the employer’s answer did not plead the arbitration clause in its affirmative defenses, nor mention it at the pretrial scheduling conference, nor raise the issue in its motion to transfer venue.  Moreover, the Court credited the lower court’s finding that the employer’s actions had caused the employee prejudice, in that he had been forced to expend considerable time and money litigating the matter in federal court.
While there is a long line of cases which favor arbitration as an alternative way to resolve disputes between parties, employers and employees alike should be aware that a contractual right to arbitrate claims must be asserted in a timely way by the party seeking arbitration.  This “use it or lose it” principle is sometimes an effective way to defeat an otherwise unassailable arbitration provision.

As reported yesterday in the Cherry Hill Courier-Post, pizza company Domino’s is being sued in a proposed class-action lawsuit by delivery persons in South Jersey who claim they are not being paid the required minimum wage.  The plaintiffs contend that Domino’s does not properly reimburse the drivers for the full cost of using their personal vehicles to deliver Domino’s products to consumers.  The federal business mileage reimbursement rate has averaged about 55 cents per mile over the last few years.  By contrast, the lawsuit claims, the Domino’s drivers have only received about 90 cents per delivery, which equates to about 18 cents per mile for a typical pizza delivery trip.  This has resulted in a wage reduction of approximately $3.60 per hour, making the typical hourly wage for a Domino’s driver to be less than $5 — far less than the federal or New Jersey state minimum wages.  The lawsuit also asserts that drivers are compelled to purchase their own Domino’s jackets for $25, which further reduces their hourly wage.

Domino’s pay practices have drawn fire in other states as well.  New York has brought several cases against the pizza chain, garnering settlements of almost $450,000 on behalf of workers who were allegedly underpaid.  One year later, 29 different New York Domino’s locations paid $970,000 in settlements for the exact same claim, according to website Grubstreet.

It goes without saying that a global company such as Domino’s, with literally billions of dollars of sales per year, has the means to ensure that its employees are paid properly and in accordance with the law.  Whether Domino’s has the will to do so remains to be seen.  The negative publicity generated by cases such as this one and others may be the push Domino’s needs to decide to treat its employees better.  There is clearly more than enough “dough” to go around.

The U.S. District Court in New Jersey, in Smith et al. v. Merck & Co., Inc., 3:13-cv-02970 (D.N.J.), recently issued a ruling that paves the way for thousands of women across the United States to join a lawsuit alleging gender discrimination against Merck & Co., a large pharmaceutical company.

Judge Shipp conditionally certified a class of current and former female sales representatives. He ruled that “[t]he information submitted by Plaintiffs shows that the sales representatives had similar responsibilities; that named plaintiffs were paid less than some allegedly similarly situated males; and that compensation decisions, although based in part on input from some direct managers, were finalized by a central, common office.” The Judge also based his decision to allow the lawsuit to go forward as a collective action on statistical evidence submitted by Plaintiffs that demonstrated that female sales representatives earned on average 1.4% less per year than male sales representatives in the same roles.

In addition to challenging unequal, centralized pay decisions in their lawsuit against the pharmaceutical giant, the Plaintiffs also allege that Merck systematically discriminates against female sales representatives, and pregnant women in particular, in promotions and other terms and conditions of employment.

As reported by NJ.com, Governor Chris Christie has vetoed SB 992, a bill which sought to bar gender-based pay discrimination.  A full text of the proposed legislation may be read here.  The bill would have amended the New Jersey Law Against Discrimination by adding language prohibiting an employer from paying one gender less than the other for “substantially similar” work.  Employers would be permitted to pay workers of different sexes doing similar jobs in an unequal manner only if they could demonstrate that the unequal treatment was justified based on factors such as training, education, experience, or job performance.  The bill also contained a triple damages provision for employees who won cases brought under the law, and a transparency provision mandating that businesses who contract with the State file equal pay information to ensure compliance with the statute.

Governor Christie, in his veto message, criticized the law as “depart[ing] significantly from well-established law” and stated that the law would make New Jersey “very business unfriendly.”  The bill’s main sponsor, Sen. Loretta Weinberg (D-Bergen), has signaled that she may attempt a veto override, in that the bill passed by decisive margins in both houses — 28-4 in the Senate and 54-14-6 in the Assembly.

Pay equity is an important issue to New Jersey’s professional workforce.  There is no question that women and men should be paid the same for the same or similar work.  There is also no question that this bill would have helped New Jersey to achieve its goal of eradicating discrimination from the workplace.

 

As reported today by CNN, United Airlines CEO Jeff Smisek received a severance package of over $36 million upon resigning from the company last September, amid a federal investigation into corruption involving the Port Authority of New York and New Jersey.  The severance package included a $4.9 million dollar payout, a $1.7 million bonus, $29 million in equity-based awards, lifetime flight and airport parking privileges, and life insurance and health benefits until he qualifies for Medicare.

Executive severance packages like the one described above have come under scrutiny by federal and state regulators, shareholders, labor unions, and consumers.  Not only do such excessive severance packages have the potential to be challenged in the courts, and cause public outcry, they are often ineffective in obtaining the highest-quality executives.  Indeed, as one corporate researcher noted, when a company guarantees its executives large severance packages even when they perform poorly (or, as in the case of Mr. Smisek, subject the company to a federal corruption probe), it may undermine the executives’ desire to build long-term value for shareholders.  “They don’t care if they are fired or not.”

In an era of high airline tickets prices, rising baggage and other fees, and smaller airplane seat sizes, United’s decision to honor this severance package is unsettling.  United’s Board of Directors has the right to force Mr. Smisek to repay roughly $10.1 million of his severance pay.  Doing so may alleviate some of the negative press regarding this issue going forward.