New Jersey Employment Lawyer Blog

Governor Corzine will sign the New Jersey Paid Family Leave Act into law this Friday, May 2, 2008. The law will permit New Jersey employees to take up to six weeks of paid leave to care for newborns or seriously ill immediate family members. The program is funded by salary deductions of approximately 75 cents a week, or $35 per year, from each New Jersey employee. The benefits are similar to the current temporary disability benefits afforded by the State, in that the employee will receive two-thirds of their regular pay, up to a cap of $524 per week, while they are on leave. The payroll deductions will begin on January 1, 2009 and the program will go into effect on July 1, 2009.

While there has been an overwhelmingly negative reaction to the bill from the State's business lobby, the law contains many compromises to appease them. For instance, employers have the option of requiring the workers to first take two weeks of vacation or sick time before using their paid family leave. Also, employers with less than 50 employees do not have to keep an employee's job open while he or she is on paid family leave. In other words, an employee can be fired from a small company while they are on paid family leave.

As stated by Rep. Stephen Sweeney, the bill's chief sponsor, "[t]his paid family-leave program is hardly a cure-all, but it's a way to help families deal with unforeseen and in many cases, unaffordable, uncertainties." I heartily agree. It's a bill which costs nothing to the employers in this State, and, at the same time, provides necessary relief to working families when they need it most.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Food for Thought , Wage and Hour Claims , Whistleblower Retaliation

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The Lilly Ledbetter Fair Pay Act, a bill which would have allowed employees who suffer discrimination in their pay checks to sue within six months of the last discriminatory paycheck received, has died in the Senate last evening. Republicans, with the support of President Bush and the Chamber of Commerce, led the effort against the measure, which failed to reach cloture by four votes.

The Act would have overturned a horribly decided 2007 Supreme Court opinion which held that an employee must bring a separate pay discrimination claim within six months of each discriminatory paycheck, even if the employee does not find out about the pay disparity for years. That is exactly what happened to Lilly Ledbetter, an employee of Goodyear who suffered pay disparity unbeknownst to her for many years. When she found out that her similarly-qualified male peers were making tens of thousands of dollars more per year for the same work, she brought an EEOC Charge of Discrimination. A jury trial followed, and Ms. Ledbetter won a substantial verdict. Goodyear appealed, arguing, in essence, that Ms. Ledbetter had the obligation to file a new EEOC Charge every time she got a bad paycheck. The Supreme Court, in an opinion written by New Jersey's own Justice Samuel Alito, agreed with this twisted logic.

Ms. Ledbetter describes the scene best:

The Ledbetter Fair Pay Act would have addressed this inequity by making the law clear that employees do not have to file multiple claims or preemptive claims if they suspect they are being discriminated against in their rate of pay. This is common sense legislation that must be passed at the next possible opportunity.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment

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New Jersey's "mini-WARN" statute, which became effective on December 20, 2007, mandates that employers with over 100 employees give 60 days' advance notice to employees who are terminated in a mass layoff or operation shutdown. The New Jersey Commissioner of Labor and Workforce Development has recently issued a summary of the law and a Notification Form which employers can use when planning and executing a mass layoff of its employees. The link to the form is here: http://lwd.dol.state.nj.us/labor/forms_pdfs/lwdhome/Legal/LayoffNotificationForm2_31208REVDD6.pdf

Employees who have been advised of a plant shutdown or mass layoff should consult this document to make an initial determination of whether the event falls under the mini-WARN statute. The penalties for violating the statute include paying each affected employee one week of severance pay per year of service, in addition to any other severance payment they may receive. Certainly, if you believe your employer and the layoff are covered under the statute and your employer has not followed the advance notice requirement, you should immediately contact my firm or another decent plaintiff's employment attorney. You may be entitled to substantial benefits. If you are an employer who is planning to lay off workers, I suggest you consult an employment attorney well in advance of the layoff and take all steps necessary to comply with the law. Otherwise, you may be hearing from me.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Severance Negotiations , Wage and Hour Claims

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Most, if not all, employees experience unfair treatment at work at some time or another. Unfair treatment can include being passed over for a promotion or better opportunity because of nepotism, favoritism, or office politics. It can include a boss who is a bully and yells and screams at you for no reason. It can include being falsely accused of breaking office policy or work rules, or even committing a crime! By this point in my career, I've pretty much heard it all. Nothing surprises me when it comes to what goes on in New Jersey workplaces.

Unfortunately, as I have told countless employees over the years, there is no law against "unfair treatment" in the workplace. New Jersey, like every other state, is an "at will" employment state. "At will" employment means that your employer can take any action it wants towards you for any reason or no reason at all. You can be disciplined, demoted, transferred, "harassed" in the generic sense, or terminated at any time. On the plus side, you can quit your employment at any time, for any reason or no reason at all.

In certain cases, employers cross the line into unlawful conduct, which includes discrimination on the basis of age, gender, race, nationality, disability, sexual orientation, and the like. Unlawful conduct also includes retaliation against whistleblowers and employees who receive statutory benefits, such as FMLA leave. Actionable conduct can also include fraud, misrepresentation, breach of contract, defamation, and intentional infliction of emotional distress.

Before you contact an employment attorney for advice, consider whether the treatment you have suffered at work is due to unfairness or unlawful conduct. If the former, consider whether you can do anything to fix the situation "in house." I give some strategies for dealing with unfair treatment in a previous post. If the latter, do not hesitate to engage a competent, knowledgable employment attorney who can lay out your legal options and help you decide what steps to take. In either case, feel free to contact my firm for a free telephone consultation. We can quickly diagnose your situation and will let you know how we can help.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment , Severance Negotiations

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On Friday, April 18, 2008, a New Jersey jury awarded Alfred West $10.5 million in a breach of employment contract claim. Mr. West, a telecommunications entrepreneur, entered into an informally written employment agreement with IDT Corporation. The agreement obligated him to work for IDT for five years in exchange for compensation totaling over $2.5 million per year. IDT failed to pay according to the agreement, and the lawsuit ensued. IDT argued that the agreement was merely "an agreement to agree" and not a binding contract. However, the Court and jury disagreed, finding that all of the elements of a contract were present.

The case highlights the important fact that a legally binding employment contract does not have to be a "boilerplate" legal document. In fact, employment contracts which are written on a napkin, sketched on a blackboard, or even discussed and agreed upon orally, can be legally enforceable, so long as the elements of a contract are present.

I will say, however, that such contracts are harder to enforce and are more likely to lead to litigagtion. I have represented several New Jersey executives in similar matters. These individuals came to me after their contracts were breached, not before. While I have been able to achieve very good results in my contract cases, my clients would have saved a lot of money, time, and aggravation had they consulted me before they signed their agreements. It is very important that both employer and employee fully understand their rights and obligations at the outset of the employment relationship. If the parties have a mutual understanding of the terms of the agreement, and have signed a well-drafted contract, litigation can sometimes be avoided.

I congratulate Mr. West and his excellent attorneys for the sizable verdict. I would expect, however, that Mr. West would have preferred to have been paid his money as an employee, rather than having to go through the extraordinary expense, in both money and time, of a lawsuit.

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Posted In: Employment Contracts

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The prevention of genetic diseases affecting the Jewish population was the topic of a recent symposium held in Philadelphia, PA. The good news is that genetic testing for deadly and disabling diseases such as Tay-Sachs and Cystic Fibrosis has improved substantially in the last several years, as have efforts by religious and community leaders to raise the awareness of Jewish couples who are at risk of passing on the genes for these disorders to their children. The bad news is that the law has lagged behind the science in this area. Federal legislation which would prevent discrimination on the basis of genetic information has stalled in the United States Senate. The bill, entitled the Genetic Information Nondiscrimination Act of 2007, passed the House of Representatives by a vote of 420-3 last year. President Bush also supports the bill. It appears to have strong bipartisan support. So what's the hold up?

Here in New Jersey, our Law Against Discrimination prohibits employment discrimination on the basis of genetic information, or on the basis of an employee's refusal to submit to a genetic test, or on an employee's refusal to make available the results of a genetic test to an employer. Federal genetic nondiscrimination law would make similar prohibitions mandatory in all fifty states. The purpose of these laws is to encourage Americans to take advantage of genetic testing as part of their medical care and protect them from employers who would "screen" them out of jobs based on stereotypes or other false assumptions about genetic disorders. Does anyone have a problem with these goals? Please urge your U.S. Senator to act on the Genetic Information Nondiscrimination Act of 2007.

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Posted In: Discrimination and Harassment

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Another day, another round of layoffs for the region's workforce. This time its Woolrich, the oldest clothing company and woolen mill in the United States. The Company announced on Tuesday that it is laying off close to 50 garment workers in its Jersey Shore, PA plant due to a drop in demand for its products. It will be offering severance packages to the affected employees who cannot be placed elsewhere in the company.

Employers are not required to give severance pay to their employees. Then why do they do it? There are two main reasons, and neither of them is altruistic. One, they want to give employees a reason to stick around until the plant closes. If an employee quits before the layoff, he or she will generally not be eligible for severance pay. Two, the employers want the employees who are laid off to sign away their right to sue for any and all claims they may have. Once those packages are signed, the employer can breathe a big sigh of relief. It can't be sued by its former employees, for any reason.

Any employee who is offered a severance package should run, not walk, to an attorney who specializes in employment law. Your cousin's friend's brother who handled your house closing or your dog bite case won't do. If you do not work in New Jersey and would like to find a knowledgeable, competent employment attorney, contact my office for a referral or check out the National Employment Lawyers Association at http://www.nela.org. To all of the affected workers at the Woolrich plant, we send our sympathy and wishes for a better future.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Employment Contracts , Severance Negotiations

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Some bloggers and other opinion writers have suggested that a candidate's age should be a factor in choosing our next President. Some have even advocated that the Constitution of the United States of America be amended to place an upper age limit of 60 for candidates seeking election to the presidency. I think these people are dead wrong. Age discrimination should never, in my opinion, bar someone from a job, even a job as important as the President of the United States. Each candidate for president, and each job seeker generally, should be judged individually on his or her merits, i.e., intellect, character, and leadership ability. Otherwise, aren't we turning the Age Discrimination in Employment Act and New Jersey Law Against Discrimination on its head?

Granted, there are exceptions carved out of the anti-discrimination statutes for certain jobs which have specified age range as a bona fide occupational qualification. But the presidency is not a job which fits into these categories. As long as a candidate is qualified to run for office, his or her age should not be a factor.

I have too many clients over the age of 55 who come to me after being terminated and cannot find replacement employment. The companies that refuse to hire my clients or do business with them are violating the law if age is a factor in their decisions. What kind of message would it send to corporate America if we bar otherwise qualified candidates from running for president simply because of their age?

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment

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The Times [of London] Online reported today that a whistleblower provided information to Korean authorities which may lead to the break up of the multi-billion dollar corporate giant Samsung Group. The whistleblower, who works on the "legal team" for the company, alleges that the company had created a $200 million slush fund to be used for paying off government officials, including senior members of the Korean judiciary.

This story highlights the critical function that whistleblowers, and the laws that protect them, play in our society. The price of unchecked corporate fraud, greed, and illegal conduct usually falls upon us, either as consumers, shareholders or taxpayers. How many innocent people lost their shirts when Enron, Worldcom, and GlobalCrossing bit the dust? How much tax money have we spent paying fraudulent Medicare claims or buying $1000 screwdrivers. Whistleblowers keep corporations and governmental agencies honest, and in doing so save us all money.

I have a few big whistleblowing cases going on right now and I am amazed at the things these companies try to get away with. I am very thankful my whistleblowing clients had the courage to come forward and speak out. If you see your employer doing something fraudulent, illegal, unethical, or dangerous to public safety, please don't remain silent. Whether you discuss your options with an employment attorney first or decide to go it alone -- make the choice to be heard. It's the right thing to do for your country and, in the right circumstances, can be the right thing for yourself financially.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Whistleblower Retaliation

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State Senator Raymond Lesniak wrote an eloquent op-ed piece on April 3, 2008 regarding the Polish goverment's decision to refuse to ratify the Lisbon Treaty, an EU document which prohibits discrimination on the basis of sexual orientation. According to the article, "Poland's President linked the marriage of a gay couple living in New York City with Polish anxieties about German occupation," a comparison which Sen. Lesniak called "bizarre and shameful."

Sen. Lesniak, who represents the 20th Legislative District, consisting of the City of Elizabeth and neighboring Union County communities, is proud of his Polish heritage. Some time ago, he protested a racial slur against Polish people by a local radio station. Garden State Equality, a gay rights advocacy group, joined and supported his protest.

Sen. Lesniak stated, quite correctly in my view, that "discrimination on the basis of sexual orientation has no basis to exist anywhere, let alone in Poland which has encountered discrimination countless times at the hands of neighboring countries and alliances."

I applaud this New Jersey politician who clearly "gets it" when it comes to the critical issue of eradicating discrimination in all its forms, and especially discrimination which is condoned, and therefore tacitly sponsored, by the state. Good job, Senator!

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment , Food for Thought

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When you receive a severance package from your employer, don’t immediately assume that it’s non-negotiable. You may have more leverage than you know. A skilled and knowledgeable employment attorney can identify where you have leverage and use it to get you more severance pay.

The first and most important thing you need to know is that you already have some leverage to begin with. When your employer offers you a severance package, they are, in essence, asking you to sell away some of your most valuable rights. And believe me, your employer is very motivated to buy this “property” from you. Why are they so motivated? Because if your employer can get you to sign that piece of paper, they can forget about you. You can’t sue them, ever, for anything they did or did not do from the beginning of time to the moment you sign the package. Most of the time, you can’t even complain about them publicly. Some times, they restrict you from working down the street for a competitor. Your right to sue, your vow of silence, your right to compete – the rights you are “selling” have a value. Your employer sets the “buy” price when it puts that severance package in front of you. Before you “sell” your rights away in a severance package, consult an employment lawyer and find out whether the “buy” price your employer is offering is fair.

I’ve had to turn away many potential clients because they didn’t understand the concept of leverage and went ahead and signed their severance package without consulting an attorney. Never, ever, sign something you don’t fully understand. Do the research, find a decent employment attorney, and spend the money for a comprehensive severance package review. Even employees without much leverage in the legal sense can have leverage in other areas, which I will save for a later post.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Employment Contracts , Non-Compete Agreements , Severance Negotiations

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I heard this amazing story on National Public Radio last week and it made my day. Its not exactly law related but I think it should be shared and discussed because it shows what a profound effect just a little compassion and courage can have. This is a direct quote from NPR Morning Edition, March 28, 2008.

Julio Diaz has a daily routine. Every night, the 31-year-old social worker ends his hour-long subway commute to the Bronx one stop early, just so he can eat at his favorite diner. But one night last month, as Diaz stepped off the No. 6 train and onto a nearly empty platform, his evening took an unexpected turn.

He was walking toward the stairs when a teenage boy approached and pulled out a knife. "He wants my money, so I just gave him my wallet and told him, 'Here you go,'" Diaz says. As the teen began to walk away, Diaz told him, "Hey, wait a minute. You forgot something. If you're going to be robbing people for the rest of the night, you might as well take my coat to keep you warm."

The would-be robber looked at his would-be victim, "like what's going on here?" Diaz says. "He asked me, 'Why are you doing this?'" Diaz replied: "If you're willing to risk your freedom for a few dollars, then I guess you must really need the money. I mean, all I wanted to do was get dinner and if you really want to join me ... hey, you're more than welcome. "You know, I just felt maybe he really needs help," Diaz says.

Diaz says he and the teen went into the diner and sat in a booth. "The manager comes by, the dishwashers come by, the waiters come by to say hi," Diaz says. "The kid was like, 'You know everybody here. Do you own this place?'" "No, I just eat here a lot," Diaz says he told the teen. "He says, 'But you're even nice to the dishwasher.'" Diaz replied, "Well, haven't you been taught you should be nice to everybody?" "Yea, but I didn't think people actually behaved that way," the teen said.

Diaz asked him what he wanted out of life. "He just had almost a sad face," Diaz says. The teen couldn't answer Diaz — or he didn't want to.

When the bill arrived, Diaz told the teen, "Look, I guess you're going to have to pay for this bill 'cause you have my money and I can't pay for this. So if you give me my wallet back, I'll gladly treat you." The teen "didn't even think about it" and returned the wallet, Diaz says. "I gave him $20 ... I figure maybe it'll help him. I don't know."

Diaz says he asked for something in return — the teen's knife — "and he gave it to me."

Afterward, when Diaz told his mother what happened, she said, "You're the type of kid that if someone asked you for the time, you gave them your watch."

"I figure, you know, if you treat people right, you can only hope that they treat you right. It's as simple as it gets in this complicated world."

Here is the link to the story: http://www.npr.org/templates/story/story.php?storyId=89164759

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Posted In: Food for Thought

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New Jersey's Law Against Discrimination prohibits employers from taking adverse actions against their employees on the basis of race, gender, age, religion, sexual preference, disability, or membership in other protected categories. The law does not prohibit an employer from taking negative actions against employees for other reasons, such as nepotism, favoritism, office politics, and the like. Yet employees who lose their jobs for these reasons, or who endure harassment or bullying which is not “discriminatory” in the legal sense, often suffer the same emotional and financial upset as do victims of unlawful discrimination. What are some strategies for dealing with unfair treatment in the workplace?

I would advise anyone experiencing negative treatment in the workplace to immediately begin to diary or journal the events as they occur. If the situation worsens and becomes legally actionable down the road, the written record can be important evidence in your case. In addition, the act of writing down your problems can have a cathartic and healing effect.

Next, you should report the unfair treatment to your Company’s human resources department, preferably in writing. Yes, I know, they won’t do anything about it. But, again, the main reason for making the report is to create a paper trail which may come in handy down the road. There is also the slight chance that they actually listen to you and try to help you.

If you have documented and reported the unfair treatment and it still persists, you should seriously consider changing jobs. Situations like these tend get worse over time, not better. I’m speaking from personal experience, as well as what I’ve learned from counseling employees for the last ten years. You will wind up quitting or getting fired some time down the road anyway, and in the meantime you will be extremely stressed out, lose sleep, get depressed, angry, or anxious, all of which can lead to more serious health problems. No job is worth losing your health. The decision to leave a job on your own terms, on your own timetable, is an empowering one. Just make sure your job search does not interfere with your current job duties or violate any non-compete agreements you may have signed. It goes without saying that you should never quit a job until you have secured a new one.

If you are an employee caught in the gray area between unfair treatment and illegal discrimination or retaliation, consider speaking to a competent employment attorney who can lay out your options and help you make an informed decision about your next career move.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment , Non-Compete Agreements , Severance Negotiations , Whistleblower Retaliation

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