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.

The U.S. Supreme Court has issued a troubling decision which affirms the validity of a judicially-created exception to the nation’s employment discrimination laws. In upholding and expanding the so-called “ministerial exception,” the Court rendered an entire class of employees, i.e., ministers or other religious leaders, ineligible for protection from employment discrimination. Moreover, the Court broadly interpreted the term “minister” to include religious school teachers who are ordained in their faith but not working in the role of minister of a congregation.

The case, Hosanna-Tabor Church v. Equal Employment Opportunity Commission, was brought by a former employee of the Evangelical Lutheran Church, Cheryl Perich, who alleged she was fired from her teaching position by the Church because she had pursued an employment discrimination action against it based on disability. The Church admitted that it terminated Ms. Perich in retaliation for her filing a charge of discrimination. However, it sought sanctuary under a judicially-created exception to employment discrimination laws called the “ministerial exception.” As Chief Justice Roberts explained, this exception is grounded in the First Amendment’s Free Exercise Clause. According to the Court’s reasoning, the Constitution's guarantee of freedom to exercise the religion of one’s choice confers on religious organizations the right to choose their leaders in any manner they want -- even in a discriminatory manner.

In arguing against the ministerial exception, Ms. Perich cited an earlier case where members of a church were denied unemployment benefits after it was discovered that they were fired for using peyote as part of a religious sacrament. In that case, the court determined that the Free Exercise Clause had not been violated because the right to exercise religion does not relieve an individual of his or her obligation to follow valid and neutral laws of general applicability. The Court in Ms. Perich’s case distinguished the earlier case by stating that smoking peyote implicated government regulation of an outward act while Ms. Perich’s case implicated an internal Church decision that affected the faith and mission of the Church itself.

This decision is troubling for many reasons. First, the “ministerial exception” may be interpreted even more broadly in the future, as this Court applied the exception to teachers like Ms. Perich, who only devoted a small part of her day to religious duties. Second, the Court fumbled in distinguishing what constitutes an "outward act" as opposed to an internal decision. A church’s decision to fire an employee for a discriminatory reason could easily be interpreted as implicating government regulation of an outward act, since acts of discrimination affect not only the individual affected but the public interest as well. Likewise, an employee smoking peyote for sacramental purposes can be interpreted as an internal personal decision and a matter of personal faith.

Ultimately, this decision narrows the rights of a large class of employees who work for religious institutions. Employees who want to advance within a religious school or church and obtain status as a “leader” or “minister” now do so at their own peril. They may be discriminated against without any legal repercussion whatsoever, as their employer can simply claim that the decision to harass, demote, or terminate the employee was an “internal church decision” protected by the First Amendment.

An Edison Township Police Officer, Joseph Kenney, recently obtained a settlement of $250,000 plus legal fees in a whistleblower lawsuit he filed after experiencing retaliation on the job.

Officer Kenney’s suit arose out of a fatal car accident in 2008. Officer Kenney alleged that his sergeant failed to assist him in pulling victims from an overturned car. The officer alleged that his sergeant made derogatory comments about the South Asian victims in the car, one of whom died. After Officer Kenney filed a complaint about the incident with the department, he was placed on a four day administrative leave and charged with insubordination.

On the fourth day of trial, the Township defendant agreed to pay Officer Kenney a substantial monetary settlement. The officer, who is a 27 year veteran of the police department, expressed satisfaction with the result, saying that he stood up for what he believed was right and received justice.

The actions taken against Officer Kenney after he filed the complaint about his sergeant implicated the Conscientious Employee Protection Act (CEPA), which is New Jersey’s whistleblower law. Under this law, an employer may not take retaliatory actions against an employee after they report illegal or unethical activities in the workplace. This law was implemented by the State to encourage employees to report inappropriate activities in the workplace without fearing that their jobs will be placed in jeopardy. If you are a whistleblower or are considering becoming one, seek the advice of an employment attorney who can advise you as to your rights.

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.

In a recent case, Donelson v. DuPont Chambers Works, the New Jersey Supreme Court held that a plaintiff does not need to prove that he or she was actually or even constructively discharged in order to recover lost wages where an employer’s retaliatory conduct causes an employee to suffer from an emotional condition that renders the employee incapable of working. This is a major step forward for employees who have suffered whistleblower retaliation or discrimination.

In Donelson, the plaintiff, John Seddon, worked for DuPont Chambers Works for about 30 years, primarily responsible for ensuring the safety of employees. In late 2002, Seddon expressed concern to his shift manager about the dangerous manner in which security guards were conducting random searches of employees in the dark alongside passing traffic. When DuPont did nothing to address these safety hazards, Seddon filed a complaint with the Occupational Safety and Health Administration (“OSHA”). Seddon then filed subsequent complaints with management about unsafe conditions in the operation of equipment that could produce toxic gas into the atmosphere. In response, Seddon’s supervisor took retaliatory actions against him, including giving him negative evaluations, accusing him of performance deficiencies and subjecting him to constant verbal abuse. Seddon complained to DuPont that he was being targeted for harassment because he complained about these safety issues.

Seddon suffered feelings of worthlessness and began having anxiety attacks as a direct result of this harassment. He sought treatment and took a six-month leave of absence. Seddon, however, never returned to DuPont and was granted a disability pension from the company.

Seddon filed a complaint against DuPont, alleging whistleblower (CEPA) violations and sought damages for loss of earnings and benefits. He was awarded $724,000 for economic losses by the trial court. The Appellate Division reversed and held that an award of lost wages is dependent upon the existence of an actual or constructive discharge and since Seddon retired from DuPont, he could not claim he was discharged.

The Supreme Court in this case gave an expansive interpretation of New Jersey’s whistleblower statute. The Court stated that, based upon the remedial nature of CEPA and its underlying purposes to encourage and protect employees who speak out about their employer’s wrongdoings, this statute should be liberally construed. It found that a plaintiff in a CEPA case need not prove that they were actually or constructively discharged in order to recover back wages or other economic damages where an employer’s retaliatory conduct caused an employee to suffer from an emotional condition that rendered the employee incapable of working.

If you believe you were wrongfully terminated or left a job after suffering a severe emotional condition caused by unjust retaliation, you should consult a reputable employment attorney.

As reported in the Trentonian, a New Jersey State Trooper won a large verdict this week for his whistleblower lawsuit. The trooper alleged that after he reported that the state police were using uncertified handlers to train K-9 dogs, his supervisors passed him over for promotion and relegated him to a post at the state police museum.

The Mercer County trial jury deliberated two days before returning the unanimous verdict in favor of the trooper, who will receive $240,000 in compensatory damages.

Employees who blow the whistle on their employer's illegal or unethical activities do so at great risk to their careers. This case demonstrates that, given the right set of facts, juries are more than willing to stand up on behalf of these brave individuals. If you are a whistleblower or are considering becoming one, please contact an experienced New Jersey employment attorney to guide and assist you.

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.

Whistleblowing employees from Robert Wood Johnson University Hospital -- Hamilton have helped the federal government recover $6.35 million in two lawsuits filed against the hospital. News of the large settlement was recently reported here. The whistleblowers claimed that RWJ-Hamilton officials were inflating charges to Medicare patients to obtain larger reimbursements. A federal investigation found the allegations to be meritorious. Speaking for the Department of Justice, Tony West, an assistant attorney general, stated that "[t]axpayer dollars should go towards quality healthcare, not (be) wasted on fraud and abuse."

The lawsuits were brought under the qui tam provisions of the federal False Claims Act. This law provides a "bounty" to whistleblowers who help the government recover money from entities who have cheated it. Under the terms of the settlement, the whistleblowers will receive $1,111,250.

If you are an employee of a hospital, doctor's office, or other health care provider and have proof that your employer is cheating Medicare or Medicaid, you should immediately consult with a knowledgeable New Jersey whistleblower attorney. It is not easy being a whistleblower. It takes courage, perserverance, and the proper legal advice and support.

Can a company fire an employee for taking company records that help the employee's discrimination case? This is the question posed by the case of Quinlan v. Curtiss-Wright Corp., A-51-09, which was argued before the New Jersey Supreme Court on March 9, 2010. As reported in the New Jersey Law Journal, the Court is likely to answer this question in the affirmative. If it does, New Jersey employers will get a powerful new weapon to use against employees who may have taken confidential records during their employment.

The plaintiff in the Quinlan case is a Human Resources professional who felt that her employer was discriminating against her on the basis of gender. She secretly copied about 1800 pages worth of confidential company records. She then retained a lawyer and gave the records to him. Her lawyer filed a lawsuit and returned the records to the employer during the course of the litigation. When the employer found out about the records, it fired the plaintiff. The plaintiff then added a claim for retaliation to her gender discrimination complaint.

A jury found in favor of the plaintiff on her retaliation claim, but the verdict was overturned on appeal. The Appellate Division held that the plaintiff should not be permitted to benefit from her "theft" of confidential documentation.

On appeal to the New Jersey Supreme Court, the plaintiff's attorney argued that Ms. Quinlan was acting in good faith when she took the documents, and that she should not be penalized for doing what she thought was the right thing. The Court seemed to disagree, indicating that it would encourage "employee theft" if Ms. Quinlan were permitted to win her retaliation claim under these circumstances.

I would advise any New Jersey employees to consult with a knowledgeable and experienced employment attorney before undertaking any kind of "investigation" or "evidence gathering" on their own. New Jersey is an "at will" employment state and you do not want to give your employer a legitimate excuse to fire you. If you have a good discrimination claim, your lawyer will obtain the documentation you need to win the case by using the proper legal processes.

The Port Authority of New York and New Jersey has been fined and ordered to pay an employee's legal fees for violating her whistleblower rights under the Federal Railroad Safety Act. As reported today in the Jersey City Independent, the employee fell and injured herself after a chair she sat on broke. The employee alleged that when she reported the injury, the Port Authority said she’d caused the accident herself. She then filed a whistleblower complaint with the Occupational Safety and Health Administration (OSHA), alleging that the Port Authority had disciplined her for reporting her injury. OSHA’s investigation found the employee's claim to have merit.

Robert Kulick, OSHA’s regional administrator in New York, stated that “[r]ailroad employees have the legal right to report work-related injuries . . . . Railroads that retaliate against employees for exercising their rights will be held accountable.”

Employees in New Jersey have the right to be free from employer retaliation for their good-faith acts of whistleblowing. Numerous state and federal laws provide the basis for these rights. If you are a NJ employee who is considering whether or not to blow the whistle, or has already blown the whistle, it is imperative that you discuss your legal options with a knowledgeable, experienced employment attorney.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.