New Jersey Employment Lawyer Blog

Revel Casino, soon opening in Atlantic City, has announced an unusual policy of setting term limits on certain employees. The Casino will be setting term limits of four to six years on front line employees, which includes employees who would have face time and/or interact with guests in any way such as dealers, waiters, or bellhops. The Casino comments that the policy will ensure that highly professional staff will be attracted to work for them.

The term limit policy has been met with some criticism. One employment lawyer from Philadelphia points out that the policy may be a way for the Casino to age discriminate in a low profile manner as the policy allows the casino to regularly clear out older employees.

This is yet another example of employers taking advantage of a tough job market. Atlantic City casinos have recently let go many employees who will not be deterred from applying to Revel despite the term limits. They reason that a job with term limits is better than no job at all. The Casino is expecting to bring in 2.4 billion in revenue and provide 5,000 full time jobs. Many hope that the Casino helps revive Atlantic City which has been struggling to maintain jobs.

The New Jersey Supreme Court recently issued a unanimous decision confirming that a court’s application of contingency enhancements in awarding attorney fees is not only appropriate, but essential in cases where the relief sought is equitable in nature. The Court’s decision, which combined two different appeals, comes as a victory to many lawyers who take cases on a contingency basis, including employment lawyers.

Traditionally, each party in a suit is responsible for their own fees, unless there is an applicable statute that warrants "fee-shifting." A contingency enhancement is a mechanism which allows the Court to increase the fee to take into account the risk of nonpayment when an attorney’s compensation is substantially contingent on a winning outcome. The Court relied primarily upon Rendine v. Pantzer, an employment discrimination case, in reaching its decision. The Rendine Court spelled out three important policy purposes for fee-shifting, which include:

1. Allowing litigants equal access to the courts.
2. Provide these individuals with the resources to enforce protected rights in court.
3. Providing these litigants with adequate representation.

By way of background, the first case on appeal, Walker v. Guiffre, involved a woman who sued multiple car dealerships in New Jersey under the Consumer Fraud Act. During the case, her attorneys pursued extensive discovery and expended a lot of time and effort which resulted in the accumulation of high attorney fees. After winning the trial, Walker’s attorneys requested counsel fees and a contingency enhancement, which the trial court allowed. The Appellate Division overturned the trial court’s award of attorney fees for numerous reasons, including that counsel did not justify the hours utilized, there was little analysis of the reasonableness of the hourly rate charged, there was no justification of the 45% contingency enhancement.

The second case, Humphries v. Powder Mill Shopping Plaza, involved a complaint about the lack of handicap accessibility at a shopping center. The case ultimately settled on most issues and the issue of attorney fees and costs was submitted to the Court to resolve. The trial court concluded that the time expended on the matter was reasonable, especially as the rate charged in the amount of $350 an hour was low for this type of case. The Court applied a 20% contingency enhancement on the award of counsel fees. On appeal, the Appellate Division concluded that Humphries failed to meet a more stringent U.S. Supreme Court standard for justifying a contingency enhancement.

On January 25, 2012, the New Jersey Supreme Court reinstated the contingency enhancements in both cases. The Court emphasized the Humphries case, where the relief sought by the Plaintiff was about more than money, it was about effecting a change which would benefit all handicapped individuals who would have been denied access to the shopping area in the future.

In the field of employment law, fighting for employee rights is not just about obtaining monetary compensation. It has a broader purpose of ensuring that protected classes of people are not discriminated against. The Court's recent decision affirms that lawyers who do this work on a contingency fee basis deserve enhanced fees to buffer the risk they take by accepting these cases.

A well-known Los Angeles employment law firm, Martin & Martin, is being sued by the California State Labor Commission after allegedly firing a receptionist because she had to report for jury duty. The lawsuit claims that the firm took retaliatory actions against the employee by unlawfully terminating her from her job.

In 2009, the California Department of Industrial Relations directed the law firm to reinstate the receptionist and reimburse her for lost pay. The law firm subsequently appealed that decision and lost. To date the firm has failed to comply with the directives of the California Department of Industrial Relations, igniting a new law suit against the firm.

The lawsuit comes as unfortunate news since those most knowledgeable of employment law should be guardians of employee rights, not violators of them.

The Appellate Division of the Superior Court of New Jersey recently ruled that an employee who blows the whistle on illegal or unethical employer conduct does not qualify as a "whistleblower" if her part of her job duties is to monitor such conduct.

The case, White v. Starbucks Corp, et. al., involved a former Starbucks District Manager, Kari White, who started working for Starbucks in 2006. White claimed she was fired for whistleblowing about various workplace activities that violated the law and company policy. Some of these activities include reporting missing store merchandise, unsanitary conditions at the Newark branch, alcohol consumption by employees while on the job, after-hours sex parties, employees emailing pornographic images, and complaining about the Westfield branch’s tables and chairs not leaving enough space for a wheelchair. White alleged that Starbucks forced her to resign from her position in March 2007 after she complained about these activities. Starbucks argued that White was terminated due to her aggressive managerial style.

White sued Starbucks Corp. under CEPA, the law which prevents employers from taking retaliatory action against employees who report unethical workplace activities. CEPA serves two major public policy objectives: 1) protecting and encouraging employees to report illegal and unethical workplace activities and 2) discouraging public and private sector employees from engaging in such conduct.

The Court dismissed White’s CEPA claim by relying heavily on an earlier case which held that an employee may not bring a claim under CEPA if they are engaging in acts which are already a part of their job duties.

Here, White’s job duties as a District Manager required that she “regularly and customarily exercise discretion in managing the overall operation of the stores within her district including overseeing the district's store management workforce, making management staffing decisions, ensuring district-wide customer satisfaction and product quality, and managing safety and security within the district.” The Court stated that it was White’s job to communicate with her superiors about any violations occurring at the stores she oversaw, and ensure that these violations were addressed and corrected. Therefore, the Court concluded that CEPA is inapplicable in White’s case.

The New Jersey Supreme Court has been asked to review the Appellate Division’s decision. If the State Supreme Court is to further affirm the notion that employees cannot bring a CEPA claim if whistleblowing activities are already a part of their job duties, the policy implications can be far reaching and possibly even thwart the objectives of CEPA. Limiting the scope of CEPA as the Court has clearly done in White v. Starbucks Corp., et. al., does not serve as a deterrent against employers taking retaliatory action against employees trying to do the right thing in the workplace. Further, employers could strategically word job duties to include vague and broad language that would bar employees from later bringing a CEPA claim. We hope the NJ Supreme Court will overturn this decision and keep the policy objectives of CEPA intact.

The U.S. Supreme Court has issued a troubling decision which affirms the validity of a judicially-created exception to the nation’s employment discrimination laws. In upholding and expanding the so-called “ministerial exception,” the Court rendered an entire class of employees, i.e., ministers or other religious leaders, ineligible for protection from employment discrimination. Moreover, the Court broadly interpreted the term “minister” to include religious school teachers who are ordained in their faith but not working in the role of minister of a congregation.

The case, Hosanna-Tabor Church v. Equal Employment Opportunity Commission, was brought by a former employee of the Evangelical Lutheran Church, Cheryl Perich, who alleged she was fired from her teaching position by the Church because she had pursued an employment discrimination action against it based on disability. The Church admitted that it terminated Ms. Perich in retaliation for her filing a charge of discrimination. However, it sought sanctuary under a judicially-created exception to employment discrimination laws called the “ministerial exception.” As Chief Justice Roberts explained, this exception is grounded in the First Amendment’s Free Exercise Clause. According to the Court’s reasoning, the Constitution's guarantee of freedom to exercise the religion of one’s choice confers on religious organizations the right to choose their leaders in any manner they want -- even in a discriminatory manner.

In arguing against the ministerial exception, Ms. Perich cited an earlier case where members of a church were denied unemployment benefits after it was discovered that they were fired for using peyote as part of a religious sacrament. In that case, the court determined that the Free Exercise Clause had not been violated because the right to exercise religion does not relieve an individual of his or her obligation to follow valid and neutral laws of general applicability. The Court in Ms. Perich’s case distinguished the earlier case by stating that smoking peyote implicated government regulation of an outward act while Ms. Perich’s case implicated an internal Church decision that affected the faith and mission of the Church itself.

This decision is troubling for many reasons. First, the “ministerial exception” may be interpreted even more broadly in the future, as this Court applied the exception to teachers like Ms. Perich, who only devoted a small part of her day to religious duties. Second, the Court fumbled in distinguishing what constitutes an "outward act" as opposed to an internal decision. A church’s decision to fire an employee for a discriminatory reason could easily be interpreted as implicating government regulation of an outward act, since acts of discrimination affect not only the individual affected but the public interest as well. Likewise, an employee smoking peyote for sacramental purposes can be interpreted as an internal personal decision and a matter of personal faith.

Ultimately, this decision narrows the rights of a large class of employees who work for religious institutions. Employees who want to advance within a religious school or church and obtain status as a “leader” or “minister” now do so at their own peril. They may be discriminated against without any legal repercussion whatsoever, as their employer can simply claim that the decision to harass, demote, or terminate the employee was an “internal church decision” protected by the First Amendment.