New Jersey Employment Lawyer Blog

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

For years, federal courts have had a field day chipping away at the Americans with Disabilities Act, reading it in an ever-narrower way and applying it to an ever-shrinking number of Americans. Finally, we have passed common-sense legislation which undoes all the damage the federal courts have done to the ADA over the years. Last September, Congress passed and President Bush signed the ADA Amendments Act of 2008. Today, the EEOC published a red-lined version of the law on its website, so you can see the original law and the changes to it all on the same page.

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.

What are some of the top strategies for maximizing your severance pay if you are handling the negotiation on your own? This question was the recent subject of an article in Business Week entitled "Severance: How to Part on the Best Terms."

The first tip offered in the article is "don't take it personally." In other words, approach the severance negotiation as a business transaction, and don't let your emotions get in the way. The next tip is to "speak to someone who's on your side," such as a mentor or supervisor who thinks highly of you. The last tip is to "determine exactly what you want" with respect to the money you are looking for and other employer concessions, such as reducing the scope of a non-compete clause.

This "kinder, gentler" approach can be effective for certain employees, such as high level executives, who are negotiating severance packages without the assistance of an attorney. I would advise these individuals to negotiate as good a deal as they can on their own, and then bring in a reputable severance package attorney at the end to review the agreement and suggest possible further enhancements. Employees who don't feel comfortable negotiating on their own should do some research about severance package negotiations and engage a professional to negotiate on their behalf. You should have an attorney review any document in which you are giving up legal rights, such as a severance agreement.

Keansburg's Board of Education voted last week to suspend the $741,000 severance package it planned to give its Superintendent of Schools, Barbara Trzeszkowski, until litigation filed by the State Attorney General to void the agreement is resolved. Keansburg, however, opted to remain a plaintiff in litigation it brought, along with the other "Abbott" districts in New Jersey, to contest the State's new school-funding formula. Keansburg and the other districts allege in that case that the new school-funding formula will deprive it of the $4.3 billion in special aid they receive from the State.

The Board's attorney, Richard Shapiro, recommended that Keansburg opt out of the school funding case, given the public relations nightmare surrounding Ms. Trzeszkowski's severance package. The Board did not follow that recommendation.

From a legal point of view, the severance package issue does not appear to be relevant to the constitutional challenge at the center of the school funding litigation. However, from a moral point of view, Keansburg's position is untenable. Keansburg's conduct, including negotiating and signing off on a $741,000 severance package for an administrator (while its students attend classes in trailers, mind you), and the conduct of other free-spending Abbott districts necessitated the school funding reform law. Keansburg can't credibly complain about the law's "unfairness" now.

NJ’s Attorney General filed an injunction today to block the $741,000 retirement package for Keansburg Schools Superintendent Barbara A. Trzeszkowski, claiming that payout breaks the public trust and is illegal. “For a school board to so outrageously enrich a former superintendent through this type of ‘golden parachute’ at the expense of the children of Keansburg and the state’s taxpayers is not only contrary to public policy and unconscionable, it violates the fiduciary duty that the board owes the public,” says the state’s brief.

The State is specifically alleging that the severance package is unlawful and should be voided because:

• it violates public policy in that public funds are being used to pay for an “unreasonable and excessive (severance) provision” benefitting Ms. Trzeskowski and not the students;

• the school board members who approved Ms. Trzeszkowski’s severance package “breached their fiduciary obligation to the citizens of Keansburg and New Jersey to adequately protect the public funds” from excessive costs; and

• the contract lacks legal “consideration” in that the severance provision was calculated based on Ms. Trzeskowski’s 30-plus years of service in Keansburg, most of which was spent in jobs other than Superintendent.

I have to say that, despite my vocation as a plaintiff’s employment lawyer, I find this severance package to be excessive. I’m sure Ms. Trzeskowski is a very fine public servant, but the State is right on this one . . . the students should come first. Keansburg needs that money more than the Superintendent does. The severance package should be redrafted to provide a saner amount.

Jevic Transportation laid off 1,200 workers in Delanco, NJ today, without adequate notice, without severance pay and apparently, in some cases, without their last paychecks. Jevic's conduct appears to violate NJ's "mini-WARN" statute, which became effective on December 20, 2007. Under this law, employers with over 100 employees are required to give 60 days' advance notice to employees who are terminated in a mass layoff or operation shutdown. The Company's failure to pay their workers their lawfully earned wages on the proper payday violates the New Jersey Wage and Hour Law.

Said State Sen. Diane Allen, who recently spoke at a gathering of the laid off workers, "[u]nder our law these employees should be given one week of severance for every year they have worked. And they should have been given 60 days notice so they had time to find a new job and get acclimated and get new health insurance. What happened is these people were just thrown out on the street."

My heart goes out to the families of the affected workers. I hope they land on their feet quickly and obtain the benefits they deserve under law.

New Jersey's "mini-WARN" statute, which became effective on December 20, 2007, mandates that employers with over 100 employees give 60 days' advance notice to employees who are terminated in a mass layoff or operation shutdown. The New Jersey Commissioner of Labor and Workforce Development has recently issued a summary of the law and a Notification Form which employers can use when planning and executing a mass layoff of its employees. The link to the form is here: http://lwd.dol.state.nj.us/labor/forms_pdfs/lwdhome/Legal/LayoffNotificationForm2_31208REVDD6.pdf

Employees who have been advised of a plant shutdown or mass layoff should consult this document to make an initial determination of whether the event falls under the mini-WARN statute. The penalties for violating the statute include paying each affected employee one week of severance pay per year of service, in addition to any other severance payment they may receive. Certainly, if you believe your employer and the layoff are covered under the statute and your employer has not followed the advance notice requirement, you should immediately contact my firm or another decent plaintiff's employment attorney. You may be entitled to substantial benefits. If you are an employer who is planning to lay off workers, I suggest you consult an employment attorney well in advance of the layoff and take all steps necessary to comply with the law. Otherwise, you may be hearing from me.

Most, if not all, employees experience unfair treatment at work at some time or another. Unfair treatment can include being passed over for a promotion or better opportunity because of nepotism, favoritism, or office politics. It can include a boss who is a bully and yells and screams at you for no reason. It can include being falsely accused of breaking office policy or work rules, or even committing a crime! By this point in my career, I've pretty much heard it all. Nothing surprises me when it comes to what goes on in New Jersey workplaces.

Unfortunately, as I have told countless employees over the years, there is no law against "unfair treatment" in the workplace. New Jersey, like every other state, is an "at will" employment state. "At will" employment means that your employer can take any action it wants towards you for any reason or no reason at all. You can be disciplined, demoted, transferred, "harassed" in the generic sense, or terminated at any time. On the plus side, you can quit your employment at any time, for any reason or no reason at all.

In certain cases, employers cross the line into unlawful conduct, which includes discrimination on the basis of age, gender, race, nationality, disability, sexual orientation, and the like. Unlawful conduct also includes retaliation against whistleblowers and employees who receive statutory benefits, such as FMLA leave. Actionable conduct can also include fraud, misrepresentation, breach of contract, defamation, and intentional infliction of emotional distress.

Before you contact an employment attorney for advice, consider whether the treatment you have suffered at work is due to unfairness or unlawful conduct. If the former, consider whether you can do anything to fix the situation "in house." I give some strategies for dealing with unfair treatment in a previous post. If the latter, do not hesitate to engage a competent, knowledgable employment attorney who can lay out your legal options and help you decide what steps to take. In either case, feel free to contact my firm for a free telephone consultation. We can quickly diagnose your situation and will let you know how we can help.

Another day, another round of layoffs for the region's workforce. This time its Woolrich, the oldest clothing company and woolen mill in the United States. The Company announced on Tuesday that it is laying off close to 50 garment workers in its Jersey Shore, PA plant due to a drop in demand for its products. It will be offering severance packages to the affected employees who cannot be placed elsewhere in the company.

Employers are not required to give severance pay to their employees. Then why do they do it? There are two main reasons, and neither of them is altruistic. One, they want to give employees a reason to stick around until the plant closes. If an employee quits before the layoff, he or she will generally not be eligible for severance pay. Two, the employers want the employees who are laid off to sign away their right to sue for any and all claims they may have. Once those packages are signed, the employer can breathe a big sigh of relief. It can't be sued by its former employees, for any reason.

Any employee who is offered a severance package should run, not walk, to an attorney who specializes in employment law. Your cousin's friend's brother who handled your house closing or your dog bite case won't do. If you do not work in New Jersey and would like to find a knowledgeable, competent employment attorney, contact my office for a referral or check out the National Employment Lawyers Association at http://www.nela.org. To all of the affected workers at the Woolrich plant, we send our sympathy and wishes for a better future.

When you receive a severance package from your employer, don’t immediately assume that it’s non-negotiable. You may have more leverage than you know. A skilled and knowledgeable employment attorney can identify where you have leverage and use it to get you more severance pay.

The first and most important thing you need to know is that you already have some leverage to begin with. When your employer offers you a severance package, they are, in essence, asking you to sell away some of your most valuable rights. And believe me, your employer is very motivated to buy this “property” from you. Why are they so motivated? Because if your employer can get you to sign that piece of paper, they can forget about you. You can’t sue them, ever, for anything they did or did not do from the beginning of time to the moment you sign the package. Most of the time, you can’t even complain about them publicly. Some times, they restrict you from working down the street for a competitor. Your right to sue, your vow of silence, your right to compete – the rights you are “selling” have a value. Your employer sets the “buy” price when it puts that severance package in front of you. Before you “sell” your rights away in a severance package, consult an employment lawyer and find out whether the “buy” price your employer is offering is fair.

I’ve had to turn away many potential clients because they didn’t understand the concept of leverage and went ahead and signed their severance package without consulting an attorney. Never, ever, sign something you don’t fully understand. Do the research, find a decent employment attorney, and spend the money for a comprehensive severance package review. Even employees without much leverage in the legal sense can have leverage in other areas, which I will save for a later post.

New Jersey's Law Against Discrimination prohibits employers from taking adverse actions against their employees on the basis of race, gender, age, religion, sexual preference, disability, or membership in other protected categories. The law does not prohibit an employer from taking negative actions against employees for other reasons, such as nepotism, favoritism, office politics, and the like. Yet employees who lose their jobs for these reasons, or who endure harassment or bullying which is not “discriminatory” in the legal sense, often suffer the same emotional and financial upset as do victims of unlawful discrimination. What are some strategies for dealing with unfair treatment in the workplace?

I would advise anyone experiencing negative treatment in the workplace to immediately begin to diary or journal the events as they occur. If the situation worsens and becomes legally actionable down the road, the written record can be important evidence in your case. In addition, the act of writing down your problems can have a cathartic and healing effect.

Next, you should report the unfair treatment to your Company’s human resources department, preferably in writing. Yes, I know, they won’t do anything about it. But, again, the main reason for making the report is to create a paper trail which may come in handy down the road. There is also the slight chance that they actually listen to you and try to help you.

If you have documented and reported the unfair treatment and it still persists, you should seriously consider changing jobs. Situations like these tend get worse over time, not better. I’m speaking from personal experience, as well as what I’ve learned from counseling employees for the last ten years. You will wind up quitting or getting fired some time down the road anyway, and in the meantime you will be extremely stressed out, lose sleep, get depressed, angry, or anxious, all of which can lead to more serious health problems. No job is worth losing your health. The decision to leave a job on your own terms, on your own timetable, is an empowering one. Just make sure your job search does not interfere with your current job duties or violate any non-compete agreements you may have signed. It goes without saying that you should never quit a job until you have secured a new one.

If you are an employee caught in the gray area between unfair treatment and illegal discrimination or retaliation, consider speaking to a competent employment attorney who can lay out your options and help you make an informed decision about your next career move.