New Jersey Employment Lawyer Blog

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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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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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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A recent case from the New Jersey Superior Court should make any employee who has ever used a work computer to send or receive email from an attorney a little nervous. In Stengart v. Loving Care Ag. Inc., No. BER-L-858-08 (Feb. 5, 2009), the Court held that the attorney-client privilege did not apply to emails between an employee/plaintiff and her lawyer which were accessed on the employee's work computer -- despite the fact that the emails were accessed through a personal, password-protected email account. The Court thus permitted the company to use the employee's emails to and from her attorney to defend against her discrimination claims.

As reported by the law firm of Buchanan Ingersoll & Rooney, the Court based its decision on the fact that the employer had a published electronic communication policy which "adequately warned employees that there [was] no reasonable expectation of privacy" with respect to any emails generated or viewed on company issued computers, and the fact that the employee was aware of the policy.

This decision reminds us that any time you contact your lawyer from your work computer, you run the risk of exposing the communication to your employer or other third parties. This situation is particularly dangerous for employees who are engaged in litigation with their current employers, although it applies to everyone. If you must communicate with your lawyer during the work day, the most prudent thing to do is to step outside the office and make a telephone call. Save the emails for when you get home from work.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Civil Rights Violations , Discrimination and Harassment , Employment Contracts , Food for Thought , Non-Compete Agreements , Severance Negotiations , Wage and Hour Claims , Whistleblower Retaliation

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We all know that male bosses shouldn't sexually harass their female subordinates, and that female employees should promptly rebuff and report any inappropriate comments by their male bosses to HR or management. But what if you're a female professional and genuinely like your male boss, as a friend? Is it ever okay to be "just friends" with the boss? Some of my recent cases have brought home the message that when it comes to male supervisors and female subordinates, even being "just friends" with the boss is extremely risky.

The problem lies in perception. You may be completely well-intentioned. Your boss may be a family man, a genuinely nice guy. However, as soon as the friendship becomes known in the office, the time bomb starts ticking. Your coworkers may perceive the friendship as something more. An innocent lunch shared with your boss off-campus becomes fodder for speculation and gossip. Work-related telephone calls from your boss or one-on-ones with him only fuel the rumors more. Rumors in the workplace have a tendency to get out of hand quickly. If the rumors are made known to management, they may have send in HR to investigate whether the relationship is "consensual." Your integrity, your judgment, and your credibility will be called into question. Even if the investigation reveals nothing more than the "just friends" relationship, the damage to your career is done.

My advice to any female professional who is considering a "just friends" relationship with their male boss give careful consideration to the way such relationship will be perceived by everyone else in the workplace. It takes just one disgruntled employee to start a vicious and hurtful rumor that can spread like wildfire, damaging your valuable, hard-earned career in the process.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment , Food for Thought

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Many people come to me for advice after being treated unfairly in the workplace. Some have been passed over for promotions in favor of less-qualified people, some have been denied raises or bonuses they deserved, others have been harassed by managers or coworkers to the point that they have to take a medical leave or even quit their job because of the stress. I sympathize. We go to work each day to put bread on the table, pay our bills, and support our families the best we can. We treat our employers with respect and expect to be treated with respect in return.

However, just because you have been treated unfairly in the workplace does not mean your employer has done something unlawful. This is because we live in a country of "at-will" employment, meaning that we serve at the pleasure of our employers and can be terminated for any reason, at any time. Short of termination, employers can take any number of measures adverse to the employee, including demotion, transfer, disciplinary action, and even "harassment" in the sense of poor treatment which is not related to one's gender, race, religion, color, disability, whistleblower status, or other protected category.

It's often quite easy to prove that someone has been treated unfairly in the workplace. An employer's own documents, in the form of personnel files or other internal memoranda, can prove that someone was singled out and treated differently. The employee's testimony and the testimony of his or her coworkers can corroborate the fact that unfair treatment occurred. But proving unfair treatment will only take you half the way there. To win an employment case, the employee must have evidence showing the "why:" you must show why your employer treated you differently. And the reason must be either discrimination or retaliation.

Proving that an employer had a discriminatory or retaliatory intent when it acted adversely to an employee is the fundamental challege of every employment case. There is usually no "smoking gun" evidence, for example, a racist comment captured on audiotape. However, competent employment attorneys, who know where to look, can often find "indirect evidence" of discrimination or retaliation. Indirect evidence takes many forms, each dependent on the facts of a particular case.

If you feel you have been the victim of discrimination or retaliation, as opposed to unfair treatment, please consult with a competent New Jersey employment attorney who knows how to turn your "indirect evidence" into a winning case and get you the justice and compensation you deserve.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment , Food for Thought

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William Wallace, former Senior Associate Dean for Academic and Student Affairs for the University of Medicine and Dentistry of New Jersey, has filed a lawsuit against the University claiming he was fired in June 2006 for exposing racist hiring practices. Mr. Wallace was terminated by the University after federal monitor Judge Herbert Stern determined that Mr. Wallace abused his position as second in command at UMDNJ's School of Osteopathic Medicine in Stratford in myriad ways, including getting subordinates to submit expenses for him, devoting a "significant" amount of university time and resources to his political jobs, and giving a no-bid catering contract to a friend in exchange for free meals. The monitor also concluded that Mr. Wallace used his influence to try to get his daughter into medical school without the required essays or test.

I find it noteworthy that Mr. Wallace waited until the very end of his two year statute of limitations to bring this case. To me, that means he had a very hard time finding an attorney who would take his case. If you have a hard time finding an attorney to take your case, it generally means you don't have a good case.

I cannot personally comment on the merits of Mr. Wallace's claims; however, I can vouch for the thoroughness and precision of the Federal Monitor's team of investigators and attorneys. If they say you're guilty, you're guilty. I will also say that frivolous discrimination lawsuits not only waste taxpayer money, but hurt the real victims of discrimination and retaliation, who juries paint with the same brush as the fakers. Perhaps Mr. Wallace should have left well enough alone.

Posted by Steven Siegler | Permalink | Email This Post

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

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In an age of increasing identity theft, the State of Connecticut has become the second state (after Michigan) to pass a law requiring that all businesses and their employees safeguard and protect the confidentiality of social security numbers. In signing the new bill into law, Governor M. Jodi Rell, said that “[i]n our fast-paced world, it takes only moments for someone to steal an identity and commit significant, long-lasting damage to a credit record." “This bill protects not just Social Security numbers, but any personal information," continued the Governor. "The law requires anyone possessing such information to safeguard it, along with the computer files and documents containing it, and specifically mandates that businesses that collect Social Security numbers develop a privacy protection policy."

The new law requires businesses to not only safeguard the personal information of their customers, but their employees as well. Although the law does not give individuals whose information is improperly divulged a right to file a lawsuit, it does provide for penalties and fines up to $500,000. A thoughtful description of the new law is set out in Daniel Schwartz's Connecticut Employment Law Blog.

Federal agencies and their employees, like IRS agents, have long been prohibited from disclosing taxpayer's financial information to third parties, pursuant to 26 U.S.C. 6103 and related laws and regulations. However, CT is only the second state to apply this prohibition to private citizens.

I recently counseled a client whose personal financial information was improperly disclosed by his employer to a group of his coworkers. While this client undoubtedly suffered embarassment and emotional injury due to his employer's thoughtless actions, I had to advise him that he did not have a case. Unfortunately, New Jersey does not have a similar statute and common law claims such as invasion of privacy did not apply to his situation.

I strongly feel that Connecticut and Michigan have done the right thing by passing legislation requiring employers and businesses to maintain confidentiality of financial information. I would like to see our New Jersey legislators follow suit.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Civil Rights Violations , Food for Thought

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My jaw hit the floor when I read that an experienced New York employment defense attorney had come out and publicly stated that "retaliation is human nature." Judith Moldover, Esq., Senior Staff Attorney of the Lawyer's Alliance of New York, made the statement to a group of human resources professionals at a recent conference sponsored by the Society for Human Resource Management. Ms. Moldover, who spent the majority of her career defending employers, most recently at mega-firm Ford & Harrison, warned the HR crowd that retaliation claims are on the rise because there is an almost "irresistible urge to strike back" against employees who complain or file lawsuits against their employers. You bet there is!

Finally, a defense attorney admits what me and my clients have been saying for years. I spend all day trying to convince defense attorneys that their clients have retaliated against mine. They look at me like I have three heads. "My client? Retaliate against yours? Absurd!" they say. Now I know what they are really thinking. "Oh shoot, not again. Medic!"

I applaud Ms. Moldover for her candor and I hope employers hear her message, i.e., that because retaliation is human nature, employers need to make preventing retaliation second nature.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Food for Thought , Whistleblower Retaliation

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UMDNJ was back in the news last week as former State Senator Wayne Bryant lost his application to have all federal bribery charges against him dismissed. Sen. Bryant is alleged to have held several "no show" jobs for UMDNJ in exchange for boosting state funding for the school. U.S. District Court Judge Freda Wolfson denied Bryant's application to dismiss all charges and set a trial date for September 8, 2008.

Judge Wolfson's ruling indicates that the remaining charges against Sen. Bryant are legally sound, although the ultimate issue of guilt or innocence will be decided by a jury. Whether or not the jury convicts Sen. Bryant of bribery, the State of New Jersey's esteemed medical school has taken yet another serious blow to its credibility. It remains to be seen whether the University's new President can take the school in a different direction. For the sake of all New Jersey taxpayers, I hope so.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Food for Thought

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In my experience, most people who sue their employers for discrimination or retaliation are not looking for money. They are looking for justice. They want a wrong to be righted. They want an admission of guilt from the employer, an acknowledgment that it messed up. In short, they want an apology. Unfortunately, an apology is the one thing my clients never get. They might get some money. They might get some self-respect back and some vindication. But those three little words they want to hear so badly -- "I am sorry" -- will never, ever come. And that's a shame.

So-called "apology laws" are on the books in 34 states in the medical malpractice area. Under these laws, apologies made by health professionals to injured patients are not admissible in court. This encourages doctors, who are only human after all, to own up to their mistakes and apologize without having a plaintiff's attorney ram it down their throat at trial. The New York Times reported yesterday that hospitals which have adopted this approach have seen their medical malpractice lawsuits diminish substantially. http://www.nytimes.com/2008/05/18/us/18apology.html?pagewanted=1&_r=2&hp

This approach would work quite well in employment discrimination and retaliation cases. I recently resolved a whistleblower case largely because the employer owned up and admitted it made a mistake. I was stunned. My client was satisfied. The case got settled. I know a lot of my cases would go the same way if the employers did the right thing and acknowledged their wrongdoing.

Posted by Steven Siegler | Permalink | Email This Post

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

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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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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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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

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Food for Thought

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