New Jersey Employment Lawyer Blog

The U.S. Department of Labor is seeking $1.9 million for alleged abuses of the H1-B visa program by Peri Software Solutions, Inc., a Newark, NJ consulting house. According to the DOL press release, Peri Software and its president, Sarib Perisamya, allegedly owe over $1.4 million in back wages to foreign workers.

The DOL's investigation found that the Newark company forced its H1-B employees to sign employment contracts, failed to pay the workers the required prevailing wage, and then sued the employees who left the company after their contracts were broken. The DOL assessed a $439,000 civil penalty against Peri Software "due to the willful nature of the violations." In addition to the civil penalty and back wage assessment, the company is facing a 2 year debarment from the H1 program.

I have seen many similar cases in my law practice. Consulting firms, many of whom are not properly registered as employment agencies, lure workers to the United States with promises of long-term employment and stability. When the workers arrive here, however, the employers require them to sign unfair and totally one-sided employment contracts. In some cases, workers are required to remain with the same company for 18 months or more. Then, when these employees are forced to quit due to unpaid bench time or other issues, the companies sue them.

If you are an H1-B employee who is being benched without pay, or otherwise not being paid properly, you may have legal recourse to get the money you are owed. You may also have grounds to terminate your contract. Before you move to your next employer, however, you should seek legal advice from a knowledgeable New Jersey employment attorney.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Employment Contracts , Non-Compete Agreements , Wage and Hour Claims

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

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

Posted by Steven Siegler | Permalink | Email This Post

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

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Supreme Court nominee Judge Sonia Sotomayor has an even-handed record when it comes to discrimination lawsuits and employment cases, in particular. Since becoming a federal appellate judge in 1998, she has written several opinions and dissents which sided with persons alleging discrimination, including an African-American elementary school student who claimed his demotion from first grade to kindergarten was racially motivated, and a law school graduate who needed extra time to take the bar exam because of a reading and learning disability. In the realm of employment law, she has ruled in favor of a security guard who filed his case too late because of a medical condition, a female police office who alleged sexual harassment and retaliation, and a group of job applicants who were denied jobs because there were taking medication.

At the same time, however, Judge Sotomayor has issued a number of decisions which went against employees. Recently, she ruled against a group of New York City fire alarm inspectors who asserted that they should be compensated for all or part of their commuting time because they are required to carry inspection documents during their commutes. She also upheld the trial court's denial of an employee's request to enter an injunction against her employer, seeking to prohibit the employer from retaliating against her witnesses by firing or disciplining them. In another case, she ruled that a group of corrections officers had not satisfied their burden of proving a connection between their whistleblowing and their employer's decision to discipline them.

The media has unanimously decided that Judge Sotomayor is a "moderate." Her fellow judges on the Second Circuit and commentators appear to agree. After reviewing some of her court decisions myself, I also agree that Judge Sotomayor is a very middle of the road jurist, at least with respect to discrimination and employment cases. In my view, President Obama has made a very wise political appointment -- one that will put him in the history books for appointing the first Hispanic Supreme Court justice, and at the same time leaves little room for opposition from congressional Republicans.

Posted by Steven Siegler | Permalink | Email This Post

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

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I represent six former employees who have filed counterclaims against Xcel Solutions Corporation, a Matawan, New Jersey based consulting company, alleging that Xcel breached their employment contracts by failing to pay them wages, “bench pay,” bonuses, and other monies. The employees, who are computer professionals living and working in the United States pursuant to the H1-B visa program, were taken to court by Xcel after they resigned. Xcel has alleged, in the separately-filed lawsuits, entitled Xcel Solutions Corporation v. Tan (Docket No. MID-L-3604-08), Anaque (Docket No. MID-L-8372-08), Sebastian (Docket No. MID-L-4467-08), Wingpo (Docket No. MID-L-10300-08), Gayacao (Docket No. MID-L-3603-08), and Yap (Docket No. MID-L-7882-08), that the employees breached their employment contracts. According to the Counterclaims we filed on behalf of the six employees, however, Xcel violated the contracts first, by either failing to properly compensate for “bench” time, failing to pay wages when due, failing to pay promised bonuses, failing to pay overtime, and/or failing to reimburse for expenses. The employees are seeking dismissal of Xcel’s claims and payment of the monies they claim Xcel owes them.

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.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Employment Contracts , Non-Compete Agreements , Wage and Hour Claims

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

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

Posted by Steven Siegler | Permalink | Email This Post

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

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

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

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

Posted by Steven Siegler | Permalink | Email This Post

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

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The New Jersey Supreme Court recently held that 97 nurses who went on strike against their employer, Lourdes Medical Center of Burlington County, were entitled to collect unemployment benefits for the pay they lost during the strike. The Hospital argued that it should not have to subsidize striking employees by contributing to their unemployment benefits. However, the unemployment benefit statute, N.J.S.A. 43:21-5(d), provides that striking workers are entitled to collect benefits during a strike except when the strike causes a "stoppage of work." Here, the Hospital was able to find replacement nurses during the strike, maintain its patient and employee census, and continue business substantially as normal.

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.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Wage and Hour Claims

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Governor Corzine will sign the New Jersey Paid Family Leave Act into law this Friday, May 2, 2008. The law will permit New Jersey employees to take up to six weeks of paid leave to care for newborns or seriously ill immediate family members. The program is funded by salary deductions of approximately 75 cents a week, or $35 per year, from each New Jersey employee. The benefits are similar to the current temporary disability benefits afforded by the State, in that the employee will receive two-thirds of their regular pay, up to a cap of $524 per week, while they are on leave. The payroll deductions will begin on January 1, 2009 and the program will go into effect on July 1, 2009.

While there has been an overwhelmingly negative reaction to the bill from the State's business lobby, the law contains many compromises to appease them. For instance, employers have the option of requiring the workers to first take two weeks of vacation or sick time before using their paid family leave. Also, employers with less than 50 employees do not have to keep an employee's job open while he or she is on paid family leave. In other words, an employee can be fired from a small company while they are on paid family leave.

As stated by Rep. Stephen Sweeney, the bill's chief sponsor, "[t]his paid family-leave program is hardly a cure-all, but it's a way to help families deal with unforeseen and in many cases, unaffordable, uncertainties." I heartily agree. It's a bill which costs nothing to the employers in this State, and, at the same time, provides necessary relief to working families when they need it most.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Food for Thought , Wage and Hour Claims , Whistleblower Retaliation

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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

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