New Jersey Employment Lawyer Blog

Employers who are sued for discrimination or retaliation will sometimes attempt to use what is known as the "after-acquired evidence" defense to limit the amount of damages that an employee can recover. This defense took a hit in the recently decided case of Redvanty v. Automated Data Processing, A-4082-06, thanks to the good work of the plaintiff's attorney, John Shahdanian II, of Secaucus, NJ.

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.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Discrimination and Harassment , Whistleblower Retaliation

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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.

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

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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.

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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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2008 turned out to be a very good year for employment law plaintiffs who tried their cases in New Jersey courts. Indeed, as published in the New Jersey Law Journal's "New Jersey Legal Almanac 2008," there were six verdicts of more than $1,000,000 awarded by New Jersey juries to employment law plaintiffs, including two verdicts of more than $10,000,000. These verdicts should help make our State's employers think twice before engaging in any type of illegal discrimination or whistleblower retaliation toward their employees in 2009 and beyond.

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.

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Posted In: Discrimination and Harassment , Employment Contracts , Whistleblower Retaliation

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The New Jersey Supreme Court has ruled in favor of a whistleblower in the case of Tartaglia v. PaineWebber, granting the plaintiff a new trial on her claims of wrongful discharge. Ms. Tartaglia claimed that her employer fired her after she complained internally about an alleged conflict of interest in the company's dealings with its financial advisors, and about sexually suggestive remarks made by two supervisors. At the 2004 trial, the court dismissed Ms. Tartaglia's wrongful discharge claim, holding that she did not first complain, or at least threaten to complain, to an external agency or authority about the alleged misconduct.

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.

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Posted In: Whistleblower Retaliation

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Dr. Regina Cunningham, Chief Nursing Officer of UMDNJ's Cancer Institute of New Jersey, is accused of awarding fraudulent continuing nursing education units to a fellow nurse in a lawsuit we filed on behalf of Dr. Cunningham's former Staff Assistant, April Allridge, in the Superior Court of New Jersey, Middlesex County. In the case entitled Allridge v. University of Medicine and Dentistry of New Jersey, Docket No. MID-L-006554-08, Ms. Allridge alleges that after she reported her supervisor's conduct to UMDNJ's Office of Corporate Compliance, Dr. Cunningham took retaliatory measures against her, eventually forcing her to resign.

Nursing laws and regulations require nurses to complete 30 hours of continuing education courses every two years, and it is unlawful to falsely swear that the continuing education requirement has been met. According to Ms. Allridge's lawsuit, Dr. Cunningham directed Ms. Allridge to issue 15 continuing education credits to a nurse who did not earn them. Ms. Allridge alleges that when she refused to issue the credits, Dr. Cunningham stated that she would issue them herself.

Ms. Allridge claims that after she reported this incident to UMDNJ's Office of Corporate Compliance, Dr. Cunningham began isolating, marginalizing and targeting her for hostile treatment. According to the Complaint, Ms. Allridge's work environment worsened in the Fall of 207 after Dr. Cunningham hired two employees to supervise Ms. Allridge. Ms. Allridge claims that in May 2008, one of these individuals confided in her that Dr. Cunningham had instructed the supervisors and staff to create a hostile environment towards Ms. Allridge. Ms. Allridge claims that this individual showed her written evidence of Dr. Cunningham's plan to harass her and terminate her employment. Once Ms. Allridge saw these documents, she concluded that her employment had been terminated, and she resigned.

Ms. Allridge did the right thing by reporting her supervisor's conduct. Unfortunately, UMDNJ did the wrong thing by targeting her for harassment and termination.

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Posted In: Whistleblower Retaliation

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William Wallace, former Senior Associate Dean for Academic and Student Affairs for the University of Medicine and Dentistry of New Jersey, has filed a lawsuit against the University claiming he was fired in June 2006 for exposing racist hiring practices. Mr. Wallace was terminated by the University after federal monitor Judge Herbert Stern determined that Mr. Wallace abused his position as second in command at UMDNJ's School of Osteopathic Medicine in Stratford in myriad ways, including getting subordinates to submit expenses for him, devoting a "significant" amount of university time and resources to his political jobs, and giving a no-bid catering contract to a friend in exchange for free meals. The monitor also concluded that Mr. Wallace used his influence to try to get his daughter into medical school without the required essays or test.

I find it noteworthy that Mr. Wallace waited until the very end of his two year statute of limitations to bring this case. To me, that means he had a very hard time finding an attorney who would take his case. If you have a hard time finding an attorney to take your case, it generally means you don't have a good case.

I cannot personally comment on the merits of Mr. Wallace's claims; however, I can vouch for the thoroughness and precision of the Federal Monitor's team of investigators and attorneys. If they say you're guilty, you're guilty. I will also say that frivolous discrimination lawsuits not only waste taxpayer money, but hurt the real victims of discrimination and retaliation, who juries paint with the same brush as the fakers. Perhaps Mr. Wallace should have left well enough alone.

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Posted In: Discrimination and Harassment , Food for Thought , Whistleblower Retaliation

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My jaw hit the floor when I read that an experienced New York employment defense attorney had come out and publicly stated that "retaliation is human nature." Judith Moldover, Esq., Senior Staff Attorney of the Lawyer's Alliance of New York, made the statement to a group of human resources professionals at a recent conference sponsored by the Society for Human Resource Management. Ms. Moldover, who spent the majority of her career defending employers, most recently at mega-firm Ford & Harrison, warned the HR crowd that retaliation claims are on the rise because there is an almost "irresistible urge to strike back" against employees who complain or file lawsuits against their employers. You bet there is!

Finally, a defense attorney admits what me and my clients have been saying for years. I spend all day trying to convince defense attorneys that their clients have retaliated against mine. They look at me like I have three heads. "My client? Retaliate against yours? Absurd!" they say. Now I know what they are really thinking. "Oh shoot, not again. Medic!"

I applaud Ms. Moldover for her candor and I hope employers hear her message, i.e., that because retaliation is human nature, employers need to make preventing retaliation second nature.

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Posted In: Food for Thought , Whistleblower Retaliation

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We recently filed a lawsuit on behalf of construction foreman Michael Dodd against his former employer, George Harms Construction Co., Inc. The lawsuit alleges that the company demoted Mr. Dodd and terminated his employment because he blew the whistle on business practices which he believed to be illegal, fraudulent, unethical, and harmful to public safety.

The Complaint in the case of Michael Dodd v. George Harms Construction Co., Inc., MON-L-2582-08, states that in January 2006, Mr. Dodd, a construction supervisor who had worked for the company for over twenty years, told his boss that his fellow foremen were not conducting weekly safety meetings. These foremen were filing false safety meeting reports to document “meetings” which never occurred, according to the Complaint. Mr. Dodd alleges that after he reported this conduct, the company isolated him, demoted him, took away his crew, and assigned him the worst jobs on the site, including picking up garbage.

The Complaint further alleges that in April 2007, Mr. Dodd blew the whistle again, this time about a retaining wall built by the company on Routes 1 and 9 in Elizabeth, New Jersey. Mr. Dodd alleges that he wrote a letter to Chief Executive Officer Tom Hardell stating that he believed the company had intentionally altered the design and structure of the wall, compromising its structural integrity, without the consent or knowledge of the State. The Complaint states that Mr. Dodd also contacted the federal Occupational Health and Safety Administration regarding his claims. According to Mr. Dodd, the company then began an “investigation” which was designed, not to look into and remedy the problem with the wall, but to cover-up its conduct and find grounds to terminate Mr. Dodd’s employment. According to the Complaint, the company terminated Mr. Dodd’s employment at the conclusion of its investigation, finding that Mr. Dodd was “insubordinate,”“highly irresponsible,” “recklessly indifferent to the truth,” “dishonest and disruptive,” and had “lied” about his safety concerns.

Mike Dodd is a hard working man who gave George Harms Construction twenty years of his life. The fact that the company terminated his employment just weeks after he contacted OSHA and reported an allegedly unsafe condition on one of this State’s busiest highways is, in my view, a clear violation of whistleblower protection law.

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Posted In: Whistleblower Retaliation

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The Equal Employment Opportunity Commission obtained a $2.2 million settlement today from the landmark New York City restaurant, Tavern on the Green. The EEOC's lawsuit, filed in September 2007, alleged that the restaurant engaged in sexual harassment, racial discrimination, and retaliation against workers who complained about these unlawful conditions. At the time the lawsuit was filed, Tavern on the Green's attorney told the press that "the restaurant conducted a thorough investigation of the allegations when they were first made some time ago and found them "entirely devoid of merit.'" That must have been some great "investigation," huh?

Congratulations to the EEOC for its significant victory. And a big "boo" to Tavern on the Green for harassing, discriminating against, and retaliating against its employees . . . and then claiming that the victims of this conduct were lying. I hope this major settlement sends a message to other corporate wrongdoers that they cannot hide their heads in the sand when their managers and supervisors harass, discriminate, and retaliate against their subordinates. Wake up and smell the litigation.

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Posted In: Discrimination and Harassment , Whistleblower Retaliation

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In my experience, most people who sue their employers for discrimination or retaliation are not looking for money. They are looking for justice. They want a wrong to be righted. They want an admission of guilt from the employer, an acknowledgment that it messed up. In short, they want an apology. Unfortunately, an apology is the one thing my clients never get. They might get some money. They might get some self-respect back and some vindication. But those three little words they want to hear so badly -- "I am sorry" -- will never, ever come. And that's a shame.

So-called "apology laws" are on the books in 34 states in the medical malpractice area. Under these laws, apologies made by health professionals to injured patients are not admissible in court. This encourages doctors, who are only human after all, to own up to their mistakes and apologize without having a plaintiff's attorney ram it down their throat at trial. The New York Times reported yesterday that hospitals which have adopted this approach have seen their medical malpractice lawsuits diminish substantially. http://www.nytimes.com/2008/05/18/us/18apology.html?pagewanted=1&_r=2&hp

This approach would work quite well in employment discrimination and retaliation cases. I recently resolved a whistleblower case largely because the employer owned up and admitted it made a mistake. I was stunned. My client was satisfied. The case got settled. I know a lot of my cases would go the same way if the employers did the right thing and acknowledged their wrongdoing.

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

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We recently filed a lawsuit for Mr. Richard Boywitt, a whistleblower who was just doing his job as Bank Secrecy Act Compliance Officer for a local bank when he told his boss that he intended to file a report about a potential money laundering scheme. Instead of thanking Mr. Boywitt for exposing the suspicious activity, the Bank's President cursed him out and fired him, according to the Complaint in the case of Boywitt v. Brunswick Bancorp d/b/a Brunswick Bank and Trust Company, Docket No. MID-L-3503-08.

According to the Complaint, Mr. Boywitt's job duties included monitoring customer transactions and filing reports of suspicious banking activity with FinCen, a division of the U.S. Department of Treasury. In early April 2007, Mr. Boywitt learned that a bank customer had repeatedly exchanged thousands of dollars in old $5 bills for new cash. When Mr. Boywitt questioned two tellers about the transactions, they stonewalled him, refused to monitor the customer further, and allegedly lied to him regarding a transaction where $8,000 of the old cash was exchanged.

The Complaint further alleges that Mr. Boywitt, who was obligated by law to report this suspicious activity, notified his boss, Mr. Roman T. Gumina, III, of his intent to file a report with FinCen. Two days later, Mr. Gumina allegedly cursed out Mr. Boywitt and abruptly fired him, saying "you would file (a suspicious activity report) against (Bank) employees? Are you f-----g out of your mind? You're fired!"

The lawsuit alleges that the Bank fired Mr. Boywitt in retaliation for his protected whistleblowing activity. In my view, the statement by the Bank President is strong "direct evidence" of retaliatory intent. The timing of the termination in relation to the whistleblowing activity is strong "circumstantial evidence" of retaliatory intent.

You can view the full press release on this matter here: http://www.emediawire.com/releases/2008/5/prweb910434.htm.

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Posted In: Whistleblower Retaliation

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The Newark Star-Ledger reported yesterday that four cardiologists who were allegedly given plum academic jobs at UMDNJ in exchange for kickbacks agreed to pay the government almost $400,000 to settle the civil lawsuits against them. This is a great victory for the U.S. Attorney, who was prosecuting these cases. However, we must acknowledge and thank Dr. Rohit Arora, UMDNJ's former Chief of its Cardiology Division, the whistleblower who first exposed the kickback scheme. Had Dr. Arora not come forward, New Jersey would have wasted hundreds of thousands of tax dollars paying the salaries of these individuals, who, as claimed by Dr. Arora and the U.S. Attorney, did not have the credentials or qualifications to be members of the academic staff of the University. Moreover, the students of UMDNJ would have been deprived of professors who truly had something to teach, in favor of the greedy and the unethical.

This case highlights the fact that the public service which whistleblowers perform is significant and necessary. It's the gift that keeps on giving. Here we are almost a year after Dr. Arora settled his whistleblower lawsuit and the positive effects are still being felt.

The new President of the UMDNJ, Dr. William Owen, has publicly declared that the end of the corruption is in sight. I am cautiously optimistic that this is the case. It is way past time for the University to acknowledge its mistakes -- especially its mistakes in the way it has treated, and, in some cases, continues to mistreat, whistleblowers.

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Posted In: Whistleblower Retaliation

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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.

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

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The Times [of London] Online reported today that a whistleblower provided information to Korean authorities which may lead to the break up of the multi-billion dollar corporate giant Samsung Group. The whistleblower, who works on the "legal team" for the company, alleges that the company had created a $200 million slush fund to be used for paying off government officials, including senior members of the Korean judiciary.

This story highlights the critical function that whistleblowers, and the laws that protect them, play in our society. The price of unchecked corporate fraud, greed, and illegal conduct usually falls upon us, either as consumers, shareholders or taxpayers. How many innocent people lost their shirts when Enron, Worldcom, and GlobalCrossing bit the dust? How much tax money have we spent paying fraudulent Medicare claims or buying $1000 screwdrivers. Whistleblowers keep corporations and governmental agencies honest, and in doing so save us all money.

I have a few big whistleblowing cases going on right now and I am amazed at the things these companies try to get away with. I am very thankful my whistleblowing clients had the courage to come forward and speak out. If you see your employer doing something fraudulent, illegal, unethical, or dangerous to public safety, please don't remain silent. Whether you discuss your options with an employment attorney first or decide to go it alone -- make the choice to be heard. It's the right thing to do for your country and, in the right circumstances, can be the right thing for yourself financially.

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Posted In: Whistleblower Retaliation

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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

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