The "after-acquired evidence" defense is used by employers who learn, after the employee has been terminated, that the employee had committed some misconduct either during their employment or during the interview process, such as lying on their job application. Employers argue that, if they had learned about the misconduct during the employment, they would have either fired the employee right then and there or never hired them in the first place. If an employer convinces a court that the defense should be applied, then the court will give the jury the option of reducing the employee's damages -- even if the employee has an otherwise valid discrimination or retaliation claim.

In the Redvanty case, the trial court let the jury hear the "after-acquired" evidence of the fact that the plaintiff had lied on her job application during the liability phase of the trial. The jury decided the case in favor of the employer. On appeal, Ms. Redvanty argued that the jury should only have been told about the job application during the damages phase of the trial, after the issue of liability had been resolved. The Appellate Division agreed, holding that the admission of the "after-acquired" evidence during the liability phase of the trial prejudiced the jury.

The Appellate Division then remanded the case, meaning that it was sent back to the trial court to be retried. At the new trial, the evidence will only be admitted during the liability phase if the trial court finds that the employer "definitely" would have fired Ms. Redvanty if it knew she had lied on her job application.

This is a very good decision for New Jersey employees. It clarifies that "after-acquired evidence" should not be used during the liability phase of a trial, except in rare circumstances where employer can prove that it "definitely" would have fired the employee sooner.

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.

My clients are good, hardworking people who have come to the U.S. to work and build a future for themselves and their families. I admire them for their courage in fighting these lawsuits and striking back against Xcel to recover the monies they feel they are owed.

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.

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.

If you take a look at the text of the law itself, you'll see that the "Findings and Purpose" section of the new law specifically overturns two particularly bad U.S. Supreme Court decisions, Sutton v. United Air Lines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. The Sutton case had limited the ADA's protection for employees whose disabilities could be "mitigated" by measures such as medication, treatment, or medical devices, and the Toyota case had tightened the standard for individuals to be considered "substantially limited" by their disability.

The new law states that the definition of “disability” is to be interpreted “in favor of broad coverage of individuals . . . to the maximum extent permitted . . . .” This was the original intent of the ADA, which, in my view, had become lost by federal judges (particularly Republican Supreme Court justices) bent on "de-regulating" disability discrimination law out of existence. The amendment act is a stern rebuke to these judges and a re-affirmation of our country's important goal of eradicating discrimination in all its forms from the workplace.

"So signing this bill today is to send a clear message: that making our economy work means making sure it works for everybody; that there are no second-class citizens in our workplaces; and that it's not just unfair and illegal, it's bad for business to pay somebody less because of their gender or their age or their race or their ethnicity, religion or disability; and that justice isn't about some abstract legal theory, or footnote in a casebook. It's about how our laws affect the daily lives and the daily realities of people: their ability to make a living and care for their families and achieve their goals.

Ultimately, equal pay isn't just an economic issue for millions of Americans and their families, it's a question of who we are -- and whether we're truly living up to our fundamental ideals; whether we'll do our part, as generations before us, to ensure those words put on paper some 200 years ago really mean something -- to breathe new life into them with a more enlightened understanding that is appropriate for our time."

Not much you can say after that, is there?

The Court reviewed the Legislature's purpose in originally enacting the unemployment benefits law. The law was passed in in the midst of the Great Depression, when unions and management were "locked in battle over issues ranging from employee demands for sustainable wages to improved working conditions," said Justice Barry Albin, in the 6-1 majority decision in Lourdes Medical Center of Burlington County v. Board of Review, A-70/71-07 (Jan. 27, 2009). Justice Albin stated that the Legislature intended the unemployment benefits law to be a "lifeline" for "ordinary men and women, who otherwise could not afford to leave work to protest for increased wages or decent working conditions," and to permit "labor to compete on a more equal playing field with management." Therefore, the nurses were within their rights to seek and collect unemployment benefits from the Hospital, despite the fact that they went on strike.

Kudos to the New Jersey Supreme Court for reaffirming and upholding the intent of unemployment benefits law. Nowadays, full access to unemployment benefits is more important than ever to New Jersey employees.

As I have blogged about before, employment agencies in the State of New Jersey must register with or become licensed by the New Jersey Division of Consumer Protection before doing business here. If a company fails to become registered or licensed, any employment agreements they enter into with their consultants are null and void from the inception. The law actually prohibits such consulting companies/employment agencies from bringing lawsuits to enforce agreements with its consultants. This is not a gray area of the law. Thanks to this recent Camo Technologies case, as well as the earlier cases, this principle of law is now well-established.

Camo Technologies and other unregistered/unlicensed employment agencies should be ashamed for suing consultants when they know that such lawsuits cannot be brought, let alone be successful. Unfortunately, many consultants, both domestic U.S. workers and those here on H1-B visas, are unaware of the law and the protections the law gives them. They may feel intimidated and decide to give in to their former employer's unreasonable and unlawful demands.

If you are a consultant who is being sued or threatened with a lawsuit from your employment agency, seek out a reputable and experienced NJ employment contract and non-compete agreement attorney to assist you. Your former employer's failure to register with or obtain a license from the State could be the "silver bullet" to help you quickly and successfully resolve your case.

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.

We should keep these large verdicts in perspective, however. Statewide, there were 120 verdicts or settlements over $1,000,000 in 2008, so the percentage of employment law plaintiffs receiving seven-figure awards is relatively low. Also keep in mind that thousands of employment law cases are resolved by verdict or settlement in New Jersey each year, so the percentage of employment cases which result in large monetary awards is actually quite small.

Nonetheless, each plaintiff's victory in the field of employment law is a step forward in my and my colleagues' ongoing battle to eradicate discrimination and retaliation from the workplaces of this State. I heartily congratulate the dedicated plaintiff's employment lawyers who furthered our cause in 2008.

The NJ Supreme Court overturned that ruling, sending the case back for a new trial. The Court held that whistleblowing employees are not required to bring their complaints to outside authorities before filing suit. Rather, the employee can make a good faith objection or complaint to perceived wrongoing internally, or take other action "reasonably calculated to prevent the objectionable conduct," said the Court.

The Court also addressed plaintiff's claim that the company destroyed evidence to conceal its retaliatory motive in terminating her employment. The Court stated that when an employment plaintiff comes forth with proof that relevant evidence has been destroyed by the employer, the trial court should permit the jury to decide whether such "spoliation" occurred, rather than decide the issue itself.

My heartfelt congratulations go to Ms. Tartaglia and her excellent attorney, Frederic Gross, Esq., on their important victory on behalf of all New Jersey employees.

Ms. Smith filed a lawsuit contending, in part, that her employer failed to accommodate her disability of depression. She argued that her employer knew that she was suffering from depression when she submitted her resignation, and should have allowed her to rescind it. The employer argued that Ms. Smith never explicitly asked for any accommodation, and therefore did not need to engage in any discussion with Ms. Smith or her doctors about why she had suddenly quit.

The Court sided with the employee, stating that the absence of an explicit request for accommodation or help was not fatal to her claim. Said the Court: "[P]roperly participating in the interactive process means that an employer cannot expect an employee to read its mind and know that he or she must specifically say 'I want a reasonable accommodation,' particularly when the employee has a mental illness. The employer has to meet the employee half-way, and if it appears that the employee may need an accommodation but doesn't know how to ask for it, the employer should do what it can to help."

This case is important to New Jersey's professionals and executives who may suffer from depression or other mental health disabilities. While it is usually wise to expressly request accommodations for your disabilities, preferably in writing, this case stands for the principle that employers have a duty to inquire and explore whether you are "in your right mind" if you are obviously upset and decide to leave your job.

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.

This decision looks a lot like the landmark case of Taylor v. Metzger, in which the New Jersey Supreme Court held that a single remark of "jungle bunny" was enough to create a racially hostile work environment. Taken together, these cases make it unmistakably clear that New Jersey is a "no tolerance" state when it comes to bigoted or prejudiced remarks in the workplace.