New Jersey Employment Lawyer Blog

According to the New Jersey Department of Labor, employers in New Jersey continued to trim payrolls in December as the state’s unemployment rate climbed to a 33-year high of 10.1 percent. Overall the state lost approximately 2000 jobs in December. The largest job losses were in the manufacturing, construction, and financial services sectors. Some sectors, such as transportation, professional services, and information technology saw modest gains.

There is no question that many employees in New Jersey who are currently employed are at risk for downsizing in the near future. If you have been offered a severance package or will be offered one in the next few months, please consult with an experienced NJ employment lawyer to review your legal options.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Employment Contracts , Food for Thought , Non-Compete Agreements , Severance Negotiations , Wage and Hour Claims

Bookmark:

Unemployment rates in New Jersey continued to rise in March, according to a recent press release from the Department of Labor. March was the 14th consecutive month of job losses in the State. The biggest losses occurred in the leisure and hospitality, professional and business services, manufacturing, and trade, transportation and utilities sectors.

Personally, I don't need another press release from the State telling me how awful things are out there right now. I hear it every day from the good people who contact me for help. Unfortunately, it appears that many employers are using "the economy" as an excuse to get rid of employees they don't like. And a few of those employers don't like people who are the wrong color, age, religion, or who come from the wrong countries. If you have been terminated recently, give some thought to the reason why your employer chose you instead of your coworker. If you need further advice on this subject, don't hesitate to contact a competent NJ employment lawyer, and please do not sign anything until you have a lawyer look at it.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Employment Contracts , Food for Thought , Non-Compete Agreements , Severance Negotiations , Wage and Hour Claims

Bookmark:

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

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

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

Posted by Steven Siegler | Permalink | Email This Post

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

Bookmark:

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.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment , Severance Negotiations

Bookmark:

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.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Severance Negotiations

Bookmark:

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.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Severance Negotiations

Bookmark:

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.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Severance Negotiations

Bookmark:

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.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Severance Negotiations

Bookmark:

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.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Severance Negotiations , Wage and Hour Claims

Bookmark:

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.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment , Severance Negotiations

Bookmark:

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.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Employment Contracts , Severance Negotiations

Bookmark:

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.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Employment Contracts , Non-Compete Agreements , Severance Negotiations

Bookmark:

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.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment , Non-Compete Agreements , Severance Negotiations , Whistleblower Retaliation

Bookmark: