New Jersey Employment Lawyer Blog

Whistleblowing employees from Robert Wood Johnson University Hospital -- Hamilton have helped the federal government recover $6.35 million in two lawsuits filed against the hospital. News of the large settlement was recently reported here. The whistleblowers claimed that RWJ-Hamilton officials were inflating charges to Medicare patients to obtain larger reimbursements. A federal investigation found the allegations to be meritorious. Speaking for the Department of Justice, Tony West, an assistant attorney general, stated that "[t]axpayer dollars should go towards quality healthcare, not (be) wasted on fraud and abuse."

The lawsuits were brought under the qui tam provisions of the federal False Claims Act. This law provides a "bounty" to whistleblowers who help the government recover money from entities who have cheated it. Under the terms of the settlement, the whistleblowers will receive $1,111,250.

If you are an employee of a hospital, doctor's office, or other health care provider and have proof that your employer is cheating Medicare or Medicaid, you should immediately consult with a knowledgeable New Jersey whistleblower attorney. It is not easy being a whistleblower. It takes courage, perserverance, and the proper legal advice and support.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Whistleblower Retaliation

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Can a company fire an employee for taking company records that help the employee's discrimination case? This is the question posed by the case of Quinlan v. Curtiss-Wright Corp., A-51-09, which was argued before the New Jersey Supreme Court on March 9, 2010. As reported in the New Jersey Law Journal, the Court is likely to answer this question in the affirmative. If it does, New Jersey employers will get a powerful new weapon to use against employees who may have taken confidential records during their employment.

The plaintiff in the Quinlan case is a Human Resources professional who felt that her employer was discriminating against her on the basis of gender. She secretly copied about 1800 pages worth of confidential company records. She then retained a lawyer and gave the records to him. Her lawyer filed a lawsuit and returned the records to the employer during the course of the litigation. When the employer found out about the records, it fired the plaintiff. The plaintiff then added a claim for retaliation to her gender discrimination complaint.

A jury found in favor of the plaintiff on her retaliation claim, but the verdict was overturned on appeal. The Appellate Division held that the plaintiff should not be permitted to benefit from her "theft" of confidential documentation.

On appeal to the New Jersey Supreme Court, the plaintiff's attorney argued that Ms. Quinlan was acting in good faith when she took the documents, and that she should not be penalized for doing what she thought was the right thing. The Court seemed to disagree, indicating that it would encourage "employee theft" if Ms. Quinlan were permitted to win her retaliation claim under these circumstances.

I would advise any New Jersey employees to consult with a knowledgeable and experienced employment attorney before undertaking any kind of "investigation" or "evidence gathering" on their own. New Jersey is an "at will" employment state and you do not want to give your employer a legitimate excuse to fire you. If you have a good discrimination claim, your lawyer will obtain the documentation you need to win the case by using the proper legal processes.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment , Employment Contracts , Food for Thought , Whistleblower Retaliation

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The Port Authority of New York and New Jersey has been fined and ordered to pay an employee's legal fees for violating her whistleblower rights under the Federal Railroad Safety Act. As reported today in the Jersey City Independent, the employee fell and injured herself after a chair she sat on broke. The employee alleged that when she reported the injury, the Port Authority said she’d caused the accident herself. She then filed a whistleblower complaint with the Occupational Safety and Health Administration (OSHA), alleging that the Port Authority had disciplined her for reporting her injury. OSHA’s investigation found the employee's claim to have merit.

Robert Kulick, OSHA’s regional administrator in New York, stated that “[r]ailroad employees have the legal right to report work-related injuries . . . . Railroads that retaliate against employees for exercising their rights will be held accountable.”

Employees in New Jersey have the right to be free from employer retaliation for their good-faith acts of whistleblowing. Numerous state and federal laws provide the basis for these rights. If you are a NJ employee who is considering whether or not to blow the whistle, or has already blown the whistle, it is imperative that you discuss your legal options with a knowledgeable, experienced employment attorney.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Wage and Hour Claims , Whistleblower Retaliation

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The U.S. Department of Labor is seeking $1.9 million for alleged abuses of the H1-B visa program by Peri Software Solutions, Inc., a Newark, NJ consulting house. According to the DOL press release, Peri Software and its president, Sarib Perisamya, allegedly owe over $1.4 million in back wages to foreign workers.

The DOL's investigation found that the Newark company forced its H1-B employees to sign employment contracts, failed to pay the workers the required prevailing wage, and then sued the employees who left the company after their contracts were broken. The DOL assessed a $439,000 civil penalty against Peri Software "due to the willful nature of the violations." In addition to the civil penalty and back wage assessment, the company is facing a 2 year debarment from the H1 program.

I have seen many similar cases in my law practice. Consulting firms, many of whom are not properly registered as employment agencies, lure workers to the United States with promises of long-term employment and stability. When the workers arrive here, however, the employers require them to sign unfair and totally one-sided employment contracts. In some cases, workers are required to remain with the same company for 18 months or more. Then, when these employees are forced to quit due to unpaid bench time or other issues, the companies sue them.

If you are an H1-B employee who is being benched without pay, or otherwise not being paid properly, you may have legal recourse to get the money you are owed. You may also have grounds to terminate your contract. Before you move to your next employer, however, you should seek legal advice from a knowledgeable New Jersey employment attorney.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Employment Contracts , Non-Compete Agreements , Wage and Hour Claims

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Apparently some drivers in NJ have been subjected to sexual and racial harassment in an unlikely place -- their own cars. According to website The Smoking Gun, toll collectors on the New Jersey Turnpike and Garden State Parkway have "gone wild" on motorists in over 550 reported incidents over the last 18 months. Some of these incidents have involved toll collectors propositioning female drivers and using racial slurs to African-American drivers.

Motorists on New Jersey's roadways are entitled to fair treatment and respect, regardless of their gender, race, age, or sexual orientation. While these incidents seem to be isolated and therefore not illegal, "drive by" harassment is wrong. The NJ Turnpike Authority should send a clear message to its workers that harassment of drivers, in any form, will not be tolerated.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment

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According to the New Jersey Department of Labor, employers in New Jersey continued to trim payrolls in December as the state’s unemployment rate climbed to a 33-year high of 10.1 percent. Overall the state lost approximately 2000 jobs in December. The largest job losses were in the manufacturing, construction, and financial services sectors. Some sectors, such as transportation, professional services, and information technology saw modest gains.

There is no question that many employees in New Jersey who are currently employed are at risk for downsizing in the near future. If you have been offered a severance package or will be offered one in the next few months, please consult with an experienced NJ employment lawyer to review your legal options.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Employment Contracts , Food for Thought , Non-Compete Agreements , Severance Negotiations , Wage and Hour Claims

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Elizabeth Zuckerman, an excellent plaintiff's employment lawyer based out of Princeton, NJ, just won an important decision in the case of J.T.'s Tire Service v. United Rentals North America, Inc., A-2989. According to the Appellate Division, an owner/operator of a business can sexually harass another business owner and be sued for discrimination.

Ms. Zuckerman's client was a female-owned business that sold tires to United Rentals. The business owner claimed that her company had been doing business with the Piscataway branch of United Rentals North America, a national equipment rental company, for approximately ten years. The female business owner alleged that in 2005, United Rentals' branch manager began pressuring her for a sexual relationship and, when she refused, stopped doing business with her until she agreed to have lunch with him. In 2007, the sexual advances became physical. When the female business owner rejected these advances, the rental company delayed its payments to her and then ceased doing business with her altogether.

The plaintiff filed her complaint under section 10:5-12(l) of the Law Against Discrimination, which makes it illegal to "refuse to buy from, sell to, lease from or to, license, contract with, or trade with, provide goods, services or information to, or otherwise do business with any other person" on the basis of gender or other LAD-protected categories. In January 2008, Middlesex County Superior Court Judge Edward Ryan granted United Rentals' motion to dismiss, finding that this type of harassment was not covered by the statute.

The Appellate Division disagreed with Judge Ryan, and reversed his ruling. Said the Court: "Where, as here, the harassment consists of sexual overtures and unwelcome touching or groping, it is presumed that the conduct was committed because of the victim's sex." Further, the Court stated "we have no hesitation in concluding that quid pro quo sexual harassment violates subsection (l)."

I obtained a ruling based on subsection (l) several years ago in an age discrimination case entitled Rubin v. Chilton Hospital. Independent contractors are protected against discriminatory firings . . . and now, quid pro quo sexual harassment.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment , Food for Thought

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The Equal Employment Opportunity Commission (EEOC) has assumed responsibility for enforcing the Genetic Information Nondiscrimination Act (GINA), an important piece of legislation which I blogged about in April and May 2008. This is the first expansion of the EEOC's enforcement powers since the passage of the Americans with Disabilities Act in 1990.

The law prohibits discrimination by health insurers and employers based on "genetic information," which includes the results of genetic tests to determine whether someone is at increased risk of acquiring diseases like cancer. Here in New Jersey, employees already had this protection under state law. With the passage of GINA, all Americans gained a measure of protection against employers who fear that an employee may be predisposed to ill health.

The EEOC's assumption of responsibility over the enforcement of GINA will make it easier for employees to assert their rights in this area. Further information about the EEOC is available on its web site at www.eeoc.gov

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment

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Employers who are sued for discrimination or retaliation will sometimes attempt to use what is known as the "after-acquired evidence" defense to limit the amount of damages that an employee can recover. This defense took a hit in the recently decided case of Redvanty v. Automated Data Processing, A-4082-06, thanks to the good work of the plaintiff's attorney, John Shahdanian II, of Secaucus, NJ.

The "after-acquired evidence" defense is used by employers who learn, after the employee has been terminated, that the employee had committed some misconduct either during their employment or during the interview process, such as lying on their job application. Employers argue that, if they had learned about the misconduct during the employment, they would have either fired the employee right then and there or never hired them in the first place. If an employer convinces a court that the defense should be applied, then the court will give the jury the option of reducing the employee's damages -- even if the employee has an otherwise valid discrimination or retaliation claim.

In the Redvanty case, the trial court let the jury hear the "after-acquired" evidence of the fact that the plaintiff had lied on her job application during the liability phase of the trial. The jury decided the case in favor of the employer. On appeal, Ms. Redvanty argued that the jury should only have been told about the job application during the damages phase of the trial, after the issue of liability had been resolved. The Appellate Division agreed, holding that the admission of the "after-acquired" evidence during the liability phase of the trial prejudiced the jury.

The Appellate Division then remanded the case, meaning that it was sent back to the trial court to be retried. At the new trial, the evidence will only be admitted during the liability phase if the trial court finds that the employer "definitely" would have fired Ms. Redvanty if it knew she had lied on her job application.

This is a very good decision for New Jersey employees. It clarifies that "after-acquired evidence" should not be used during the liability phase of a trial, except in rare circumstances where employer can prove that it "definitely" would have fired the employee sooner.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment , Whistleblower Retaliation

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Supreme Court nominee Judge Sonia Sotomayor has an even-handed record when it comes to discrimination lawsuits and employment cases, in particular. Since becoming a federal appellate judge in 1998, she has written several opinions and dissents which sided with persons alleging discrimination, including an African-American elementary school student who claimed his demotion from first grade to kindergarten was racially motivated, and a law school graduate who needed extra time to take the bar exam because of a reading and learning disability. In the realm of employment law, she has ruled in favor of a security guard who filed his case too late because of a medical condition, a female police office who alleged sexual harassment and retaliation, and a group of job applicants who were denied jobs because there were taking medication.

At the same time, however, Judge Sotomayor has issued a number of decisions which went against employees. Recently, she ruled against a group of New York City fire alarm inspectors who asserted that they should be compensated for all or part of their commuting time because they are required to carry inspection documents during their commutes. She also upheld the trial court's denial of an employee's request to enter an injunction against her employer, seeking to prohibit the employer from retaliating against her witnesses by firing or disciplining them. In another case, she ruled that a group of corrections officers had not satisfied their burden of proving a connection between their whistleblowing and their employer's decision to discipline them.

The media has unanimously decided that Judge Sotomayor is a "moderate." Her fellow judges on the Second Circuit and commentators appear to agree. After reviewing some of her court decisions myself, I also agree that Judge Sotomayor is a very middle of the road jurist, at least with respect to discrimination and employment cases. In my view, President Obama has made a very wise political appointment -- one that will put him in the history books for appointing the first Hispanic Supreme Court justice, and at the same time leaves little room for opposition from congressional Republicans.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Civil Rights Violations , Discrimination and Harassment , Food for Thought , Wage and Hour Claims , Whistleblower Retaliation

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I represent six former employees who have filed counterclaims against Xcel Solutions Corporation, a Matawan, New Jersey based consulting company, alleging that Xcel breached their employment contracts by failing to pay them wages, “bench pay,” bonuses, and other monies. The employees, who are computer professionals living and working in the United States pursuant to the H1-B visa program, were taken to court by Xcel after they resigned. Xcel has alleged, in the separately-filed lawsuits, entitled Xcel Solutions Corporation v. Tan (Docket No. MID-L-3604-08), Anaque (Docket No. MID-L-8372-08), Sebastian (Docket No. MID-L-4467-08), Wingpo (Docket No. MID-L-10300-08), Gayacao (Docket No. MID-L-3603-08), and Yap (Docket No. MID-L-7882-08), that the employees breached their employment contracts. According to the Counterclaims we filed on behalf of the six employees, however, Xcel violated the contracts first, by either failing to properly compensate for “bench” time, failing to pay wages when due, failing to pay promised bonuses, failing to pay overtime, and/or failing to reimburse for expenses. The employees are seeking dismissal of Xcel’s claims and payment of the monies they claim Xcel owes them.

My clients are good, hardworking people who have come to the U.S. to work and build a future for themselves and their families. I admire them for their courage in fighting these lawsuits and striking back against Xcel to recover the monies they feel they are owed.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Employment Contracts , Non-Compete Agreements , Wage and Hour Claims

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Unemployment rates in New Jersey continued to rise in March, according to a recent press release from the Department of Labor. March was the 14th consecutive month of job losses in the State. The biggest losses occurred in the leisure and hospitality, professional and business services, manufacturing, and trade, transportation and utilities sectors.

Personally, I don't need another press release from the State telling me how awful things are out there right now. I hear it every day from the good people who contact me for help. Unfortunately, it appears that many employers are using "the economy" as an excuse to get rid of employees they don't like. And a few of those employers don't like people who are the wrong color, age, religion, or who come from the wrong countries. If you have been terminated recently, give some thought to the reason why your employer chose you instead of your coworker. If you need further advice on this subject, don't hesitate to contact a competent NJ employment lawyer, and please do not sign anything until you have a lawyer look at it.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Employment Contracts , Food for Thought , Non-Compete Agreements , Severance Negotiations , Wage and Hour Claims

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