New Jersey Employment Lawyer Blog

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.

A jury, sitting in Federal District Court in the Southern District of New York, awarded Freddrick MacMillan, an African-American employee who worked for Millennium Broadway Hotel in Manhattan, $1,000,000 in punitive damages and $125,000 in compensatory damages in a discrimination law suit. Mr. MacMillan, who has been an employee of Millennium for over two decades, sued the hotel in Federal District Court alleging that he was forced to work in a racially hostile work environment.
Mr. MacMillan alleged in his lawsuit that he was the only African-American employee working in the hotel’s engineering department. He further alleged that other mechanics as well as supervisors frequently used inappropriate racial terms in his presence in order to upset and harass him. Mr. MacMillan claimed that co-workers referred to him as “boy” and one of them suspended a lynched voodoo doll hanging from a noose in a supervisor’s office. The doll remained on a bulletin board in the supervisor’s office until a union representative intervened. Millennium failed to discipline anyone in the investigation that followed.
Under federal law, Mr. MacMillan was required to demonstrate that his workplace was permeated with discriminatory intimidation, ridicule, or insult that was sufficiently severe or pervasive to alter the conditions of his employment, and create an abusive working environment.
The co-worker who displayed the voodoo doll and other co-workers who allegedly contributed to the hostile work environment have left the hotel since the law suit was filed. Mr. MacMillan has continued working as a mechanic for the engineering department at the Hotel.
The jury verdict in Mr. MacMillan’s favor and the subsequent award of compensatory and punitive damages comes as a caution to employers who fail to take proactive action in response to employee complaints regarding discriminatory harassment and hostile work environments. Not only is creating a hostile work environment in violation of federal law, but it can result in a significant monetary liability.

When Zynga, the social network game developer known for addictive games such as Farmville, Cityville, and Mafia Wars, initially started, they attracted talented employees with company stock in lieu of a higher salary. Last year, while Zynga prepared for an initial public offering, the company realized that too much stock had been given out to earlier employees. As a result, Zynga executives decided to give some employees an ultimatum—either give back unvested stock or lose their job.

In deciding which employees were required to give back stock, Zynga evaluated whose contributions did not justify a potential cash “windfall” from the unvested stocks when the company went public. Unsurprisingly, the few employees asked to give back unvested stock were not happy. Some employees have decided to fight back with the assistance of lawyers and may be trying to settle the issue. It is unclear what specific agreement Zynga had with its employees when the company first started. Veteran employees of Zynga may now be regretting not negotiating a higher salary with Zynga instead of agreeing to the stock options. On the other hand, Zynga is well within its rights to fire employees they do not believe are performing well, in which case the employees would lose the unvested stocks anyway.

When employers do not give out high salaries and offer other types of incentives instead (such as stock options), employees should be mindful that while stock options may be lucrative for successful startup companies, they come with a risk. Lawyers and executives in Silicon Valley comment that taking back unvested stock from employees of internet startups is not a common practice, however they believe the practice has potential to become widespread.

A Camden coffee shop owner was sued after six female employees alleged that he sexually harassed them in the workplace. The coffee shop, located in downtown Camden, is modestly called “City Coffee” but, interestingly, provides other services. City Coffee also brews up DNA testing and tax preparations, which the owner runs out of his office in the back of the store.
Former employees of City Coffee alleged that the owner lured or followed them into areas of the store that could not be seen in the store surveillance camera in order to make advances. The complaint further alleged that the owner created such an intolerable work environment that many female employees quit.

A settlement reached in the amount of $75,000 the night before trial is now being contested by the owner, who claims he never agreed to it and did not sign it. Recently, a Superior Court Judge ruled that the settlement is binding and enforceable, and the owner be required to comply. In addition to the $75,000, $15,000 of which will be distributed to the employees involved, the settlement also required that the coffee shop owner provide employee training on workplace discrimination and put in place store policies against workplace discrimination. The State Attorney General’s Office believes that the owner will be appealing the decision.

There are two important things to note from this story. The first is that although the owner argues that he never signed anything, agreements do not always have to be signed in order to be enforceable in New Jersey. Second, employers in New Jersey, no matter the size, must have anti-discrimination and anti-harassment policies and should provide training on these issues, for their own protection and for the protection of their employees.

Weeks before Hoboken University Hospital filed for bankruptcy, records show that the City gave former Chief Executive Officer of the hospital a severance package which included $600,000 in pay and one year of medical benefits.

The Hospital, which is owned by the City of Hoboken, is about to be sold to a group who runs the Bayonne Medical Center. The Hospital has been in significant financial trouble and has a debt of approximately fifty million, which it states it cannot pay. Of this debt, 1.9 million is bills and 1.45 million is owed to employees’ pension and health funds. A union leader stated that the employees of the hospital almost lost their health insurance after the hospital failed to meet insurance payments.

City and union leaders are appalled at the severance package and believe the hospital’s priories are not in order. Beth Mason, a city councilwoman, stated that it is a disgrace that a golden parachute was given out while nurses were not getting paid.

Meanwhile, the Hoboken Municipal Hospital Authority stated that the CEO met all of the conditions under his contract before being terminated and therefore is entitled to the severance package.

Whether the severance package given to this executive was warranted or not is a complex issue and dependent on several factors. Severance agreements can be complicated and should be negotiated by an experienced employment attorney.

A lawsuit filed by J-M Manufacturing Co. against its former law firm, McDermott Will & Emery, has sparked a discussion on the rights and responsibilities of temporary contract attorneys. J-M hired McDermott a few years ago to assist in a whistleblower case and help respond to requests for documents. In their lawsuit, J-M alleges that McDermott used contract attorneys who negligently performed their duties.

Contract attorneys (or temp attorneys), who usually work by the hour, only get paid for hours worked, saving law firms a tremendous amount of money. While law firms typically pay temp attorneys $25 to $125 per hour, they can bill clients double, sometimes triple the amount they pay the contract attorney. It is not uncommon for temp lawyers to work 10 to 12 hours a day, and even work overnight shifts. There have been reports of temp attorneys having to work in sweatshop-like conditions in crowded basements with few breaks. The length of time worked can be inconsistent as a case can settle at any time, leaving the temp attorney no notice that they may not have a job to go to the next morning. The number of temp attorneys has increased in recent years as law firms struggle to meet client needs and provide cost effective service.

While temp work comes with advantages and disadvantages to both the employer and employee, it is important that both parties proceed in this area with eyes wide open. Employers may want to consider the risk of liability a temporary attorney may pose to the firm and whether it is worth taking out malpractice insurance for their temporary lawyers. On a similar note, employers should also think about whether the temp lawyers are being trained properly and guided through their work. Further, employers may want to ensure that the work conditions for temp attorneys meet state and federal standards with respect to health and safety.

Meanwhile, temp attorneys, like every employee, should be aware of their rights. Temp attorneys have many of the same rights as full-time, permanent employees with respect to discrimination and retaliation law, wage and hour law, and workplace safety rules.

Capital One Financial Corporation is suing former North Fork Bank executives, John Kanas and John Bohlsen, for the alleged breach of the non-compete agreements they signed with Capital One as part of Capital One’s purchase of North Fork in 2006. At issue in this case is a non-compete clause in the separation agreements the executives signed in mid-2007. The agreements stated that the two were prohibited from competing with Capital One as directors, stockholders, investors, employees, or in any other capacity in New York, New Jersey and Connecticut through August 2012. The executives had personally received more than $100 million each as part of the Capital One/North Fork merger and as compensation for agreeing to the non-compete.

After Kanas and Bohlsen left Capital One, they were members of a group of investors that purchased BankUnited, which operates in Florida. Clearly their involvement with BankUnited was not impermissible under their non-compete agreement with Capital One. The problem in this case arose when BankUnited signed an agreement to purchase Herald National Bank, a bank with offices in New York. Capital One claims, in their lawsuit, that the executives are violating their non-compete agreements by seeking to enter the New York market in direct competition with Capital One.

Mr. Kanas has issued a public statement re-asserting BankUnited’s planned acquisition of Herald Bank and that the acquisition will not cause him or Mr. Bohlsen to be in breach with their non-compete obligations with Capital One.

The issues in this case, as with most cases involving post-termination non-compete restrictions are complicated. We suggest that both the executives required to sign these agreements, as well as the companies who would like to enforce these agreements, consult a reputable employment law attorney to determine if the contract is reasonable and enforceable.

In a refreshing change for this conservative United States Supreme Court, the justices gave broad application to Title VII’s anti-retaliation protections in its recent decision in Thompson v. North American Stainless, LP . The Court found that an employee may bring a claim for retaliation under the federal civil rights law when he or she suffers an adverse employment action because someone “closely related” to the employee engaged in protected activity, such as filing a charge of discrimination or opposing discrimination.

In this case, Eric Thompson and his fiancée, Miriam Regalado, were both employed by North American Stainless. Three weeks after receiving notice that Regalado had filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), the company fired Thompson for alleged performance-based problems. Thompson filed his own EEOC charge and later sued the company, claiming that he had been fired in retaliation for his fiancée’s EEOC charge. The lower federal courts held that the anti-retaliation provisions of Title VII did not protect Thompson because he did not personally engage in protected activity on his own behalf or on behalf of his fiancée.

The Supreme Court reversed the Sixth Circuits decision, finding that the anti-retaliation provisions of Title VII must be construed broadly to encompass any employer action that might dissuade a reasonable worker from making or supporting a charge of discrimination. Clearly, an employee might be discouraged from making a charge of discrimination if she knew that her fiancé would be fired!

The Court refused to identify a fixed class of relationships for which third-party reprisals are unlawful but it noted that firing a close family member will likely fall within Title VII’s anti–retaliatory protections but that “a milder reprisal on a mere acquaintance “ will not.

New Jersey employers and employees should take notice of this ruling because protection from retaliation is equally broad under the New Jersey Law Against Discrimination (NJLAD). Moreover, New Jersey courts generally look to Title VII for guidance in interpreting the NJLAD. An employee may have a cause of action for retaliation where he or she is closely associated with someone who has engaged in a protected activity and should consult a competent employment attorney for guidance.

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.

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.

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.

According to employees of an Illinois warehouse operated by Schenker Logistics, their company has not done enough to remove racist graffiti, including swastikas and the letters KKK, from the company's premises. The employees have now filed complaints with the Equal Employment Opportunity Commission. Said one employee, Angela McDonald, "I don't want to have go to work and see this person that's hateful." She previously complained to management about an employee that had a Confederate flag on his truck. The company has done nothing, she claims.

The lawyer for the employees said that "there is racist graffiti all over the break rooms and the washrooms and the company is doing nothing about it."

While a company cannot be expected to monitor its employees every moment while they are at work, employers have a responsibility to act promptly, decisively, and effectively when acts of harassment and discrimination occur. Not only should the company have removed the racist, hateful graffiti immediately, it should have instituted mandatory anti-harassment training for all its employees.

View more videos at: http://nbcchicago.com.

The Jersey City Parking Authority and two of its employees are being sued again for sexual harassment, bringing the total number of cases involving the same employee-defendants to three. Earlier this year, former JCPA employee Nancy Lopez settled her sexual harassment claim against the Authority, its Director of Enforcement, Fernando Picariello, and Enforcement Officer Raymond Manzo. The new lawsuits, filed by Yolanda Miranda, a former JCPA employee, and Rosalie Laureano, a current employee, allege that they were sexually harassed and suffered retaliation in connection with the Lopez lawsuit.

Miranda claims in her lawsuit that Manzo touched her breasts and buttocks, and attempted to assault her in her home. Laureano alleges in her lawsuit that after she participated in an internal investigation into Picariello's conduct, he changed her schedule to deprive her of income and engaged in "physical and verbal coercion, threats and intimidation, and micro-managing." She also claims that Picariello and Manzo made references to her buttocks and suggested in her presence that they would like to have sex with her.

In my experience, when there is this much smoke, there is usually fire. It's exceedingly rare for an employee to accuse her supervisors of sexual harassment. In these cases, three separate women all accuse the same men of the same types of illegal behavior. I don't think any rational jury would find that the Authority acted properly in these cases.

Last month, attorneys on behalf of a group of Indian workers asked for for class-action status in a federal lawsuit that describes the workers as victims of "human trafficking" and organized crime. According to the Houston Chronicle, a group of employers, immigration lawyers and labor recruiters based in India, New Orleans, Texas and Mississippi conspired to deceive and exploit workers in a multinational scam.

Skilled Indian shipbuilders were recruited to work in the U.S. with the promise of obtaining legal permanent residency -- green cards. However, when they arrived in the U.S., the shipbuilding company, Signal International, required them to live in pre-fab cabins at company-run "man camps" for which they were forced to pay "rent" of $1,050 a month. According to two of the workers, the man camps felt like "jail." Workers were allegedly subjected to routine searches (alcohol was prohibited), guests were turned away, and guards referred to them by number rather than by name.

In court documents, attorneys for Signal argued that the company was misled by labor recruiters and an immigration lawyer. Signal has allegedly demanded refunds and severed ties with one consulting firm after learning of recruiters' false promises and inflated visa charges. Other parties in the federal lawsuit — an Indian recruiter, a New Orleans immigration lawyer and others — also denied or deflected blame for the situation.

Here in central New Jersey, we have a large community of hard-working men and women from India and other Asian countries. Unfortunately, there are companies both here and abroad who take advantage of them. If you are an immigrant who believes that your rights are being violated at work, please seek out the counsel of an employment attorney who has experience handling immigration-related employment disputes.

In a significant employment discrimination decision, the U.S Supreme Court has just ruled that an Army Reservist who had a civilian job as a hospital technician could bring a lawsuit for employment bias and discrimination against him due to his commitment to the military.

In addition to being a positive result for the man who brought the lawsuit, this case is important because of the theory the court relied on to find that an employer may be liable for discrimination. Under what is called “cat’s paw” liability, the court determined that an employee may be able to hold an employer liable where the illegal bias of a supervisor who does not have the authority to make an ultimate employment decision – such as hiring or firing – serves as a “motivating factor” in the decision making process.

Here, an unbiased human resources manager fired the technician based on negative performance reviews. But, the technician relied on the “cat’s paw” theory to argue that his firing was discriminatory because the performance reviews were illegally biased. The technician claimed that his two immediate supervisors were anti-military and wrote negative comments about him in their reviews. Discrimination against those serving in the military is a violation of the Uniformed Service Employment and Reemployment Rights Act . The human resources manager then took these findings at face value, and fired the man.

The Supreme Court determined that even though the human resource manager may not be biased, the fact that her decision was tainted by improperly motivated comments was enough to bring a claim of discrimination against the hospital. Also, even if the human resource manager had conducted an independent investigation, where a discriminatory bias is an influence in a negative employment decision, an employer may be held liable for discrimination.

According to the L.A. Times, watchdog group Common Cause has discovered that U.S. Supreme Court Justice Clarence Thomas did not report over $680,000 in income his wife earned from employment by a conservative think tank, the Heritage Foundation.

The article states that between 2003 and 2007, Virginia Thomas, a longtime conservative activist, earned $686,589 from the Heritage Foundation. "Thomas failed to note the income in his Supreme Court financial disclosure forms for those years, instead checking a box labeled 'none' where 'spousal noninvestment income' would be disclosed."

Federal judges are bound by law to disclose the source of spousal income in order to avoid conflicts of interest or even the appearance of such conflicts. By blatantly violating this law, Justice Thomas has put his integrity and judicial fairness into question. He should be held accountable. If justice under law is not equal, there is no justice.

Peri Software Solutions, Inc., a Newark-based computer consulting company, has agreed to pay more than $765,00 in back wages and penalties to workers for violating provisions of the Immigration and Nationality Act, the U.S. Labor Department announced today. The company was investigated by the Department of Labor for alleged violations of the H1-B visa program -- a program that allows qualified foreign-born workers to take employment in the United States so long as they are paid the same as American workers. The Labor Department alleged that Peri Software had improperly compensated its H1-B employees and not displayed the appropriate documentation in its offices.

According to the Labor Department, the company will pay nearly $640,000 in back wages and interest for 67 employees under this program. The company must also pay nearly $127,000 in penalties for failing to provide notice of the filing of labor condition applications in the offices where the employees worked. Peri Software is also prohibited from participating in the H-1B program for one year.

This firm has handled dozens of similar cases on behalf of H1-B workers. The modus operandi of companies like Peri Software is to recruit overseas workers with promises of great pay and job stability. Then, when the employee leaves his homeland and moves to the United States, he finds out that the pay is much less and the job stability is zero. At that point, however, the employee has already signed an onerous contract which greatly restricts his ability to find new employment. When the employee moves to a new job, the company files a lawsuit against him. These practices are despicable and I am very glad that the Department of Labor has come through with a big win. Hopefully, other New Jersey consulting firms take notice and begin to bring their practices in line with the law.

A federal judge approved a mammoth $152.5 million settlement in a gender discrimination class action against one of New Jersey's largest employers, Novartis. The suit was filed in 2004 by Amy Velez and four other women who claimed they faced discrimination over pay and promotion decisions as well as for pregnancy. The case was certified as a class action on behalf of more than 5,600 women who worked in sales jobs at Novartis since July 15, 2002. On May 17, 2010, a jury found Novartis liable for discrimination and awarded $3.4 million in damages to 12 of the women and $250 million in punitive damages to a group of 5,600 employees.

In accordance with the settlement, Novartis will pay $60 million in back pay to the class and $40 million in compensatory damages. Additionally, Novartis has agreed to implement measures to protect female workers’ rights. More specifically, the drug maker has agreed to revise its sexual harassment policies and training, strengthen its employee complaint process, hire an outside specialist to help it identify gender pay disparities in the company, and revise its performance management process.

This firm has seen more gender and pregnancy discrimination cases since the economy began its downturn. If you have been unfairly denied a promotion or pay increase because of your gender, you may have a claim for unlawful discrimination. An attorney specializing in employment law can help you understand your rights.

Senate Republicans voted against the Paycheck Fairness Act of 2010, killing the legislation which had been passed by the House of Representatives over two years ago. The bill, which would have updated and expanded the Equal Pay Act of 1963, had wide popular support, as well as the support of 58 Senate Democrats. The bill was two votes shy of a filibuster-proof majority.

President Obama, speaking about the bill, stated that he was "deeply disappointed" that "a minority of Senators" prevented the Act from being brought up for a debate and receiving a vote. Said the President: [a]s we emerge from one of the worst recessions in history, this bill would ensure that American women and their families aren’t bringing home smaller paychecks because of discrimination. It also helps businesses that pay equal wages as they struggle to compete against discriminatory competition. But a partisan minority of Senators blocked this commonsense law. Despite today’s vote, my Administration will continue to fight for a woman’s right to equal pay for equal work."

Now that the Republicans have added six senate seats, it is unlikely that any new anti-discrimination legislation will be passed for several years. In my opinion, these politicians have emboldened and encouraged those who would discriminate against women. Fortunately, here in New Jersey, we have strong laws against discrimination. If you are a female who feels you are being paid less than your male colleagues, contact a knowledgeable NJ employment attorney to discuss your options.

For the first time ever, the National Labor Relations Board (“NLRB”) issued a complaint that an employer engaged in unfair labor practices for firing an employee who made derogatory posts about her supervisor on Facebook, on her own computer during off-work hours.

The NLRB issued the complaint against American Medical Response of Connecticut, an ambulance company, for firing medical technician Dawnmarie Souza after she criticized her supervisor online. It also stated that the company’s blogging and internet posting policy in its employee handbook was too broad. The handbook stated that “[e]mployees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superior, co-workers and/or competitors.” The NLRB stated that fundamental labor laws allow an employee to criticize supervisors and talk with other employees.

The NLRB is an independent federal agency with authority over most private sector employers. Therefore, the outcome of this case could have significant implications for employment and privacy laws and employers should look to see if they need to amend their policies.

We would still caution employees to be careful about what they post on their Facebook and other social media sites. There have been several recent cases where employers have successfully asked a court to force employees to reveal what they have on their personal websites. This is an area of the law that is constantly changing so if you have any questions on whether you are in compliance, you should consult an employment attorney.

The U.S. Department of Labor has won a substantial victory for employees of New York City-area dollar stores. According to the agency, the dollars stores and their owners agreed to pay more than $485,000 in minimum wages, overtime pay, liquidated damages, and post-judgment interest for approximately 120 employees.

The DOL discovered that many of the dollar stores were part of a large multi-establishment retail company, although the stores had argued in the past that each store was an individual entity. Some small businesses can be exempted from certain wage and hour requirements because, for instance, they are not involved in interstate commerce.

The agency filed the suit after an investigation by the Wage and Hour Division revealed that employees working at the companies' retail stores "often were paid at hourly rates less than the federal minimum wage, and were required to work more than 40 hours in many weeks without being properly compensated."

Employers who violate the law, whether it be wage and hour law, immigration law, or discrimination or whistleblower law, run a substantial risk of being sued by employees or government agencies. These lawsuits and investigations can cost hundreds of thousands of dollars. If you own a small business, you owe it to yourself to engage an experienced employment lawyer to review your compliance with employment laws. An ounce of prevention is this area is worth several pounds of cure.

Fox News has been sued by the Equal Employment Opportunity Commission ("EEOC") for asking a female employee to sign an employment contract which allegedly was intended to discourage her from making complaints of discrimination in the future.

The complaint alleges that Fox retaliated against news reporter Catherine Herridge after she complained that she was subjected to disparate pay and unequal employment opportunities because of her gender and age. The EEOC claims that during 2007, Herridge made several complaints to management officials at Fox News about employment practices that she believed were discriminatory. Fox conducted an investigation into Herridge's allegations but found no evidence of age and sex discrimination. Subsequently, when Herridge's employment contract was up for renewal, Fox inserted language which was allegedly intended to prevent the reporter from making further discrimination complaints. Herridge refused to sign, and she had to work without a contract for nine months, causing her considerable stress, according to the complaint.

Said the EEOC:
“The anti-retaliation provisions of Title VII and other federal anti-discrimination laws are indispensable to the attainment of a workplace free of discrimination. . . .Employers must take care that any action taken in response to a discrimination complaint is constructive and not retaliatory.”

In my opinion, if the allegations are true, Fox News is in for a beating. A company can't force an employee to sign away their right to make legitimate complaints of discrimination in advance. Anti-discrimination laws were enacted to eradicate discrimination; such a contract would seriously undermine the effectiveness of these laws.

Four whistleblowers were instrumental in helping the federal government recover $422.5M from Novartis, an East Hanover, NJ-based pharmaceutical company. Under the federal False Claims Act, the whistleblowers are entitled to receive bounties of approximately $25 million.

The whistleblowers provided information to the Justice Department that Novartis was selling its anti-epileptic drug Trileptal and five other drugs "off label." Under federal law, once a drug is approved by regulators, a drug manufacturer cannot market the drug for unspecified ("off label") use. Novartis agreed to pay $185 million in a criminal fine and forfeiture, and $237.5 million to resolve civil allegations of unlawfully marketing the six drugs.

The False Claims Act provides a "bounty" to whistleblowers who provide credible information to the government that it is being defrauded. If you suspect your company is defrauding the federal government, you need to contact an attorney who specializes in whistleblower protection law.

When a Middlesex County judge dismissed her age discrimination case against Robert Wood Johnson University Hospital, Alice Michael was understandably upset. When the judge went on to rule that she had to pay the hospital over $120,000 in attorney fees because her case was “frivolous,” she was horrified. Ms. Michael is currently employed at the hospital as a low level computer operator making around $44,000 per year. The court’s decision would have bankrupted her. Fortunately, the Appellate Division intervened and reversed the decision, sending the case back to the trial court, where it was heard by a different judge. This time the court got it right, finding that Ms. Michael did not bring her claim in bad faith. The hospital, however, would not relent. It appealed the decision further. It was not until Ms. Michael’s husband passed away that the hospital withdrew its appeal, with nothing to show for the time and money it had spent trying to get Ms. Michael to pay.

At Ms. Michael's request, I reviewed the case of Alice Michael v. Robert Wood Johnson University Hospital and Michael Zegar, MID-L-10599-02, after the hospital withdrew its appeal. I was shocked to hear that a large, respected public institution like RWJ Hospital would be so aggressive and, quite frankly, vindictive, towards one of its employees. Although Ms. Michael’s claim was ultimately unsuccessful, there was no evidence that she brought it in bad faith. In my opinion, the hospital and its attorneys spent a lot of time and money trying to make an example out of Ms. Michael. They were trying to dissuade other employees who may feel they have been discriminated against from complaining. I am glad that the court saw through their plan and denied them the fees they were seeking. This case turned out to be a positive one for employees in New Jersey. It shows that employees will never be forced to pay their employer’s legal fees, unless the case is completely off-the-wall.

According to New Jersey Transit, the answer is yes. The public railroad agency recently terminated long-time employee Derek Fenton for burning pages of the Muslim holy book in front of the planned Muslim community center and mosque near Ground Zero on September 11, 2010. Mr. Fenton claimed to be inspired to stage his protest by Florida pastor Terry Jones, who had threatened to burn the Koran but then backed down. In a press release issued after the termination, New Jersey transit stated that "Mr. Fenton's public actions violated New Jersey Transit's code of ethics. . . . We concluded that Mr. Fenton violated his trust as a state employee and therefore [he] was dismissed."

From an employment law perspective, it's clear that an employer can fire an employee for any reason or no reason at all. This is the meaning of the term "at-will employment." Just as Mr. Fenton had a right to protest, New Jersey Transit had a right to terminate his employment at will. For this reason, New Jersey Transit has not violated New Jersey law by terminating Mr. Fenton.

The moral of this story is that employers can use your actions outside of work as a basis for terminating your employment. When you engage in an act of protest such as Derek Fenton's, you have to be prepared to suffer the consequences, which can include losing your job.

Last month, Representative Linda Sanchez (D-CA) introduced legislation to Congress that would extend the federal minimum wage and overtime protections of the Fair Labor Standards Act (FLSA) to most home care workers. The Direct Care Workforce Empowerment Act of 2010 also outlines improvements in both federal and state reporting and oversight, and creates a grant program to encourage states to provide better recruitment and training programs for direct care workers.

Home care workers are currently exempt from overtime under federal law. Home care workers fill a critical need by enabling people to remain in their homes instead of moving into nursing homes. Services include a combination of life assistance (daily chores such as cooking, laundry, errands and companionship) and medical assistance (medication reminders, pain management, wound care and physical therapy).

Our nation is ill-prepared to meet the health and social needs of older adults and their families. According to one source,“by 2030, one in five Americans will be age 65 or older -- 75 percent of whom will have at least one chronic condition, with 20 percent having five or more chronic conditions." The field of home health care assistance is expected to expand every year. It is unfair to continue to deprive home health care workers the same basic work protections that are afforded to high-school students working in fast food.

If you are a home health care worker and feel like your employer is not following the new guidelines, which are expected to be enacted later in the year, a qualified New Jersey employment attorney can provide you information as to what your options are for your particular situation.

Recent changes to the New Jersey Unemployment Compensation Act have made it easier for employers and the State to deny benefits to unemployed workers. The new law expands the range of events which can lead to an employee being disqualified from receiving benefits, and lengthens the amount of time for which a worker will be disqualified.

The significant change is in the definition of "misconduct." There are now three types of "misconduct" -- simple, severe and gross. "Simple misconduct" includes things like insubordination and excessive lateness or absences, with no written warnings issued. "Severe misconduct" includes use of drugs/alcohol on the job, repeated violations of a company rule, repeated lateness or absences after receiving a written warning, or destruction/theft of company property. "Gross misconduct" is any conduct which would be a crime under the New Jersey penal code, such as embezzlement, grand theft, or bribery.

According to the Dept. of Labor and Workforce Development, employees fired for simple misconduct will be disqualified from receiving benefits for eight (8) weeks. Severe misconduct merits an indefinite disqualification unless the employee finds a new job, earns six times his weekly benefit rate, stays in the job for at least four weeks, and then loses his job again. Employees found to have committed gross misconduct cannot receive benefits at all, unless and until they return to work for at least eight (8) weeks, earn ten (10) times their weekly benefit rate, and become unemployed through no fault of their own.

These changes are projected to save New Jersey $150 to $175 million annually.

My office is seeing more and more people who are being denied unemployment benefits. In many cases, these benefits are being denied unfairly. If you have been denied unemployment insurance, it is imperative that you contact a knowledgeable attorney to handle your appeal.

Most of us these days are familiar with the term “age discrimination” and understand that employment laws exist to protect older workers from discrimination or harassment at their place of employment based on their age. However, there is a section of the Law Against Discrimination that specifically gives employers the right to not hire or promote individuals over the age of 70. This is often referred to as the Over-70 Exception. Thus, a New Jersey employer can refuse to hire or promote an individual who is over 70 years old on the basis of that individual’s age without running afoul of LAD.

Recently, the New Jersey Supreme Court, in Nini v. Mercer County Community College, was called upon to decide whether the Over-70 Exception applied to an employer's failure to renew a contract, as opposed to a failure to hire or promote. The defendant in this case argued that if the law permitted it to not hire Ms. Nini, then surely the law would permit it to not renew her contract, either. The Supreme Court disagreed with this argument, however.

The Court ruled in favor of older workers throughout New Jersey by limiting the Over-70 Exception to the two exceptions noted in the statute. According to the Court, the legislature only provided a safe harbor to employers for new hires, not employees who were currently employed, whether by contract or otherwise. This important decision means that all New Jersey employees over age 70 who currently hold positions cannot be fired for age-related reasons.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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!

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