Posted On: June 25, 2011

NJ Supreme Court Hits a Homerun for Employees in Whistleblower Case

In a recent case, Donelson v. DuPont Chambers Works, the New Jersey Supreme Court held that a plaintiff does not need to prove that he or she was actually or even constructively discharged in order to recover lost wages where an employer’s retaliatory conduct causes an employee to suffer from an emotional condition that renders the employee incapable of working. This is a major step forward for employees who have suffered whistleblower retaliation or discrimination.

In Donelson, the plaintiff, John Seddon, worked for DuPont Chambers Works for about 30 years, primarily responsible for ensuring the safety of employees. In late 2002, Seddon expressed concern to his shift manager about the dangerous manner in which security guards were conducting random searches of employees in the dark alongside passing traffic. When DuPont did nothing to address these safety hazards, Seddon filed a complaint with the Occupational Safety and Health Administration (“OSHA”). Seddon then filed subsequent complaints with management about unsafe conditions in the operation of equipment that could produce toxic gas into the atmosphere. In response, Seddon’s supervisor took retaliatory actions against him, including giving him negative evaluations, accusing him of performance deficiencies and subjecting him to constant verbal abuse. Seddon complained to DuPont that he was being targeted for harassment because he complained about these safety issues.

Seddon suffered feelings of worthlessness and began having anxiety attacks as a direct result of this harassment. He sought treatment and took a six-month leave of absence. Seddon, however, never returned to DuPont and was granted a disability pension from the company.

Seddon filed a complaint against DuPont, alleging whistleblower (CEPA) violations and sought damages for loss of earnings and benefits. He was awarded $724,000 for economic losses by the trial court. The Appellate Division reversed and held that an award of lost wages is dependent upon the existence of an actual or constructive discharge and since Seddon retired from DuPont, he could not claim he was discharged.

The Supreme Court in this case gave an expansive interpretation of New Jersey’s whistleblower statute. The Court stated that, based upon the remedial nature of CEPA and its underlying purposes to encourage and protect employees who speak out about their employer’s wrongdoings, this statute should be liberally construed. It found that a plaintiff in a CEPA case need not prove that they were actually or constructively discharged in order to recover back wages or other economic damages where an employer’s retaliatory conduct caused an employee to suffer from an emotional condition that rendered the employee incapable of working.

If you believe you were wrongfully terminated or left a job after suffering a severe emotional condition caused by unjust retaliation, you should consult a reputable employment attorney.

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Posted On: June 20, 2011

US Supreme Court Strikes Down Wal-Mart Class Action Lawsuit

The U.S. Supreme Court ruled in favor of Wal-Mart today in a massive class-action lawsuit brought by current and former female employees. The women claimed that Wal-Mart, the country's largest private employer, systematically discriminated against them on the basis of their gender by paying them less and promoting them less frequently than their male counterparts. As many as 1.5 million female employees would have been parties to the class action if it were allowed go forward.

The opinion, authored by Justice Antonin Scalia, found that the proposed class members lacked "commonality," i.e., that the 1.5 million potential plaintiffs each had different experiences at Wal-Mart that could not easily be tried in one case. Wal-Mart has approximately 3400 stores nationwide and thousands of male managers making personnel decisions. Justice Ruth Ginsburg filed a concurrence and dissent, taking issue with the majority's opinion regarding commonality. Justice Ginsburg opined that the plaintiffs showed enough commonality to deserve a remand back to the district court for further proceedings. She pointed to statistical evidence provided by the plaintiffs which showed discrimination towards women. For example, women fill 70% of the hourly jobs in the retailer’s stores but make up only 33% percent of management; the higher up in the organization, the lower the percentage of women; women working in the company’s stores are paid less than men in every region; and the salary gap widens over time even for men and women hired into the same jobs at the same time.

While employers will hail this decision as a victory, the celebration may be short-lived. 1.5 million women now have the right to file individual lawsuits against Wal-Mart all over the country. Alternatively, female employees can attempt to file class actions on a region-by-region or even store-by-store basis. Until Wal-Mart remedies what seems to be serious problems with its employment practices, it will continue to face legal action.

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Posted On: June 16, 2011

Massive Sexual Harassment Verdict in Illinois

A jury rendered what may be the largest sexual harassment verdict in history last week in Illinois -- a $95,000,000 award to the plaintiff, Ashley Alford. The loser in the case was Aaron's Inc., a rent-to-own retailer. Ms. Alford alleged that her manager made suggestive comments, touched her inappropriately and sexually assaulted her. She reported this conduct to her supervisor. She even called the company's HR hotline to complain as well. The company took no action.

Matters reached a head (no pun intended) when the manager came up to her, removed his genitals from his pants and then hit her top of the head with his penis. A month later, he pushed her down onto a sofa, lifted up her shirt and masturbated on top of her. Criminal charges against the manager are pending.

Not surprisingly, the employer is appealing this record-setting verdict. Chad Strickland, the company's VP of human resources, said that "Aaron's is extremely disappointed with the jury's verdict and believes that the award does not accurately reflect the evidence that was presented in this case. We feel strongly that this verdict is the result of a decision made by a classic runaway jury, and because of that we are confident that the damages will be greatly reduced."

The facts of this case are extreme. No person should have to be subjected to this type of treatment at work, or anywhere else, for that matter. By not acting promptly to terminate this manager, who was obviously a sexual predator, Aaron's violated the law and now will be remembered in infamy as being on the losing end of a world record-setting verdict.

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