Hair styles, hair management and hair textures can be associated with a variety of religions and races, but workplace prohibitions against specific hairstyles have a particular and insidious history of having been used to discriminate against black people. Employers have pointed to traditional white European standards of beauty as the only way to demonstrate professionalism or what is considered acceptable or appropriate. Hairstyles associated with black hair texture, culture or religion — including Afros, dreadlocks, twists, braids, Bantu knots, or cornrows — have been identified as “unkempt,” “unhygienic,” and “unprofessional.” This has furthered racial stereotypes and worked to keep blacks from achieving equality in the workplace.

This practice has also been used to discriminate against blacks in the workplace, in housing and in other areas. Black people have been denied employment, promotions, or equal pay, and have been subjected to harassment and other types of discrimination based on wearing hairstyles associated with being black.
The news has been filled with examples of black hair discrimination in New Jersey and around the country:

• A 16-year-old New Jersey high school wrestler was forced by a referee to cut off his dreadlocks in order to participate in a match.
• A seven-year-old Florida boy was denied entry to a private school because of his dreadlocks.
• An Alabama woman found her customer service job offer rescinded after she refused to cut off her dreadlocks.

Under the auspices of the New Jersey Law Against Discrimination, the state of New Jersey joins several other states in recognizing that discrimination based on hairstyles is a form of racial profiling and stereotyping that has long been used to deny equal opportunities to Black people. In addition to causing economic and psychological harm, hair rules that force black people to change the texture of their hair can cause physical damage and impose unnecessary and burdensome financial costs, including the costs of straightening hair or purchasing wigs, or the physical pain and potential scarring caused by chemical hair-straightening treatments.

In recognizing that hair texture and style is “inextricably intertwined” with racial identity, and especially with black identity, the state has extended hair as a protected characteristic under the New Jersey Law Against Discrimination, and prohibits it along with any other type of discrimination based on stereotypes. Employers are expected to make their determinations on hiring, promotion, compensation and treatment based on skills, knowledge and experience, and are legally prohibited from taking actions or treating people in a discriminatory way based on their membership in a protected class. Employers are not permitted to make a hiring decision about a Jewish person based on their wearing of a yarmulke or a handicapped person based on their disability as long as those individuals are able to perform the job’s required duties. Similarly they are not permitted to refuse to hire somebody or to treat them differently within their organization because they wear their hair in an Afro, or in braids, dreadlocks, or any other style associated with a protected class.

Some employers have argued that their rules are not racially discriminatory, and that rules around hair length or management are oriented around professionalism, health or safety. The question that NJLAD raises in response to these defenses is whether the law is enforced equally across all races: if a black person is required to keep their hair in a hairnet but a white employee with long hair is not, then the treatment is not equal under the law and the disparate treatment represents unlawful discrimination.

If you have been discriminated against based upon your hair, there is a very good chance that you can file a claim under the New Jersey Law Against Discrimination. To set up an appointment to discuss your situation, contact our office today.

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McClain v. Board of Review, 2017 N.J. Super. LEXIS (App. Div. August 29, 2017) (unpublished)

The unemployment “black hole” just closed a little more, thanks to an important published decision by the New Jersey Appellate Division this week. The decision means that workers who quit their job for an equal or better job will not be disqualified for benefits if the new offer of employment is rescinded before commencing or if the starting date is pushed back through no fault of the worker.

Patricia J. McClain was a teacher at a private school. She went out on disability. While out on disability she accepted a new job for the same or more hours and pay than she was making. When cleared to return to work, she resigned from her first job in order to take the second job, which was scheduled to begin within a week of her resignation. Unexpectedly, the new employer then rescinded the job offer because their teacher, whose resignation had created a vacancy, changed her mind. Therefore, there was no job available Ms. McClain.

Ms. McClain filed for unemployment benefits, but was denied at every level. The Board of Review disqualified Ms. McClain based upon its interpretation of the statute, which, they claimed, requires an employee who quits a job for the same or better hours and pay to actually commence work within seven days of resignation in order to be deemed eligible for unemployment benefits despite resignation. At this juncture, a review of recent history regarding the “black hole” of unemployment will be helpful.

Prior to 2015, if a New Jersey employee quit work to take another job, and that new job did not last for at least six weeks and pay 10 times the weekly benefit amount, the employee was deemed to have left work without good cause and was therefore disqualified for benefits. This unfair disqualification, which was not caused by any intentional act on the employee’s part to be voluntarily out of work, became known as the “black hole”. In 2015, the State Legislature finally took action to repair the black. N.J.S.A. 43:21-5(a) was amended to add:

This subsection shall not apply to an individual who voluntarily leaves work with one employer to accept from another employer employment which commences not more than seven days after the individual leaves employment with the first employer, if the employment with the second employer has weekly hours or pay not less than the hours or pay of the employment of the first employer, except that if the individual gives notice to the first employer that the individual will leave employment on a specified date and the first employer terminates the individual before that date, the seven-day period will commence from the specified date.

On appeal, Ms. McClain argued that the statute does not require an employee to actually start the new employment, so long as when she resigned, the employment was scheduled to begin with seven days of the date of resignation. The Board of Review argued that the term “commence” should be read as to require employees to actually begin the new employment in order to avoid disqualified. The Appellate Division agreed with Ms. McClain and reversed. Finding that the language of the statute was unambiguous and that the intent of the statute was to avoid disqualification of claimants who quit a job in order to accept a job which begins within days, even if the job fails to materialize within seven days, through no fault of the claimant.

The bottom line here is that, if an employee quits a job to take another comparable or better job, and at the time of the resignation the new job is scheduled to commence within seven days of the last day of work at the first job, the employee will not be disqualified if the new job offer is rescinded, or if the start date is pushed back by the new employer and then the employee is laid off less than six weeks after starting the new employment.

Even though it seems like this situation would not happen that often, we have had a surprising amount of cases in which this sad circumstance has arisen. In fact, we have a matter currently on appeal on this identical matter. This important published opinion will further close the black hole that has been sucking up benefits of unemployed workers who have become unemployed through no fault of their own.

Appellate Judges: Vernoia (on the opinion), Ostrer and Moynihan

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EEOC v. Macy’s, Dkt. 17-cv-5959, filed August 16, 2017, Northern District of Illinois.

This week, the EEOC had a flurry of activity including a $10.25 million settlement of a harassment suit against Ford and several lawsuits alleging various race, national origin and disability claims. The lawsuit that captured my attention was EEOC v. Macy’s. In this case, the EEOC is alleging that Macy’s violated the Americans with Disabilities Act for firing an employee because she missed one day because of her asthma.

According to information contained in the Complaint and the EEOC’s press release, Letishia Moore was a long-term employee at the State Street Macy’s in Chicago. Moore suffered from asthma and complications in her leg which became exacerbated by the asthma. On June 7, 2015, it is alleged that Moore had a medical emergency related to her asthma which required treatment in a hospital emergency room and prevented her from working her shift that day.

Moore provided documentation to Macy’s and asked for her absence to be excused, but Macy’s nevertheless decided to terminate Moore for missing the day. The EEOC alleges that Ms. Moore’s asthma was a disability and also that Macy’s was required to provide Moore with the reasonable accommodation of the one day off due to her disability. The regional attorney for the EEOC stated in her press release:

“Employers have a legal duty to provide reasonable accommodations to people with disabilities that enable them to perform the essential functions of their job. Reasonable accommodations can include time off. Here, Macy’s acted unreasonably – and unlawfully – when it denied Ms. Moore a single day’s absence to address her disability-related health complications. Macy’s refusal to allow Moore’s absence prevented her from continuing to do the job she had done well for many years.”

This case is significant for several reasons. First, there has been a real split in decisions regarding whether asthma is a disability. We had an asthma case in 2014 wherein the defendants argued that the Plaintiff’s asthma was not a disability. They cited numerous Courts from throughout the country that ruled that asthma is not a disability. The New Jersey District Court noted that there are no New Jersey cases on point but predicted that New Jersey State Courts would find asthma to be protected by the New Jersey Law Against Discrimination. See Apatoff v. Munich Re Am. Servs..

Secondly, the length of the absence (one day) is very significant. Under FMLA, an employee must be out for at least three days to qualify as a “serious health condition”. Even for purposes of intermittent leave for a chronic condition, the employee still has to provide certifications and be pre-approved. Here, there is no such requirement. An employer who has an employee who misses a day due to a chronic condition (i.e. arthritis, back pain, IBS, depression, etc.) is arguably now required not to count that day as an absence in accordance with the employer’s policies.

Finally, this recent run of cases and settlements by the EEOC may allay some fears that the new appointee, Jenny R. Yang, would be following the lead of Sessions’ Department of Justice, which is attacking employees’ civil rights, especially those of the LGBT community. Although Ms. Yang seems to be off to a good start, we’ll see whether the EEOC continues to bring actions and support recent cases holding that Title VII protects against discrimination due to sexual orientation. The front page of the EEOC website expressly states that it is the EEOC’s responsibility to enforce laws that make it illegal to discriminate against employees on the basis of sexual orientation. At some point the EEOC may have to take on the Justice Department, which holds the opposite view.

Nevertheless, this case is a positive sign. Perhaps we will get a good court decision which will strengthen the protection of employees who are forced to missed work due to a flare up of a chronic condition.

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Dugan v. Best Buy, 2017 N.J. Super. Unpub. LEXIS 2053 (N.J. App. Div. (Unpublished) August 11, 2017)

The Appellate Division continued a line of New Jersey cases refusing to enforce arbitration agreements that do not clearly and unambiguously evidence the employee’s assent to waive his right to a jury trial and instead agree to arbitrate. As with other arbitration agreements found to be unenforceable, this case reflects a situation where the employer could have easily made it clear that the employee agreed to waive his rights, but instead chose to mislead the employee instead.

Kevin Dugan was a general manager with Best Buy. In 2016, after six years of employment, Best Buy rolled out a new arbitration policy and required its employees to view an eLearning program. As the opinion points out, the language of the policy suggested that the arbitration process was more favorable than court proceedings. The employee is then asked to click a box stating, “I have read and understand the Best Buy Arbitration Policy that takes effect on March 15, 2016.” Mr. Dugan clicked the box. Just three weeks later he was terminated. In September, he filed an age discrimination lawsuit in Burlington County State Court. Best Buy moved to enforce the arbitration program and Judge Claypoole granted the motion to dismiss the lawsuit in favor of arbitration. This appeal followed.

The Appellate Division reversed. The Court pointed out that Best Buy’s policy did not express that employees were “waiving” their right to sue. The policy states that employees are bound by the policy “by becoming or remaining employed after the effective date of the policy”. Perhaps most importantly, the box that is clicked only provided that Mr. Dugan “read and understood” the policy. It never expressly states that Mr. Dugan agreed to waive his right to a jury trial nor to arbitrate all claims. The Court followed this firm’s case of Morgan v. Raymours Furniture Co., holding that simply agreeing that the employee received and read a policy does not constitute an agreement. The Court reiterated that an employer, with minimal effort, can provide language that unambiguously advises the employee that he or she is waiving the right to a jury trial.

The two judge panel had a disagreement regarding one key element in the decision. Judge Moynihan, who wrote the opinion, commented that, because Mr. Dugan’s employment only continued for three weeks, it was not long enough to establish an unambiguous waiver. This inferred that there is, at some point longer than three weeks, a duration of time that could constitute assent. It was ultimately upon this basis that Judge Moynihan concluded that the agreement was unenforceable.

Judge Vernoia wrote a concurring opinion, something exceedingly rare in a two judge opinion. The concurring opinion disagreed that the length of employment following the adoption of the policy could be dispositive of the enforceability of the policy. Rather, Judge Vernoia opined that the agreement was unenforceable because it did not constitute an unambiguous notice that continued employment would create an enforceable agreement.

There are two additional important points that I want to highlight. First, in a footnote, the Court stressed that we should not conflate the issue of whether continued employment constitutes adequate consideration for an enforceable agreement with whether continued employment constitutes assent to an agreement. In other words, even though Courts have held that continued employment is adequate consideration for the enforceability of an agreement, the continuation of employment alone cannot create an enforceable agreement to waive the right to sue absent an unambiguous assent.

I also want to vent a little about the Appellate Division’s illogical policy of not ever approving for publication opinions written by two judges instead of three. Generally, two judges are assigned for oral argument and opinion where the issues are clear-cut and the judges are in agreement. Here, the issues were not clear cut, and the concurring opinion makes it clear that the judges were not in agreement. Obviously, a third judge should have been invited to join. This is sometimes done after oral argument, when a third judge is invited to listen to the oral argument and join in the opinion. Nevertheless, this is an important opinion and I hope that the Appellate Division revisits its unwritten rule to decline publication of two-judge opinions.

Motion Judge: Susan Claypoole, J.S.C., Burlington County.

Appellate Judges: Vernoia and Moynihan.

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Roopchand v. Complete Care, 2017 N.J. Super. Unpub. LEXIS 1974 (N.J. App. Div. (Unpublished) August 3, 2017)

The Appellate Division reversed an indefensible grant of summary judgment against a pregnant medical technician with a high-risk pregnancy who was fired by a medical practice for refusing to climb a ladder to wash windows. The grant of summary judgment by the motion judge in this case was especially egregious and highlights the prejudice that pregnant women still suffer, both in the workplace and in the Courts.

Sandra Roopchand worked for Complete Care (now known as FastCare) and its former owners as a medical technician for a year and a half preceding her termination in July 2014. Her duties included both patient care and administrative duties for this small medical practice. Prior to her termination, there had never been an issue with her job performance. On July 24, 2014, she advised one of the two doctor-owners that she was pregnant and that it was a high-risk pregnancy. Five days later she told the other doctor-owner, when she saw him, that she was pregnant, and he told her that he already knew. She did not tell him that she was high-risk at that point because she assumed that he already knew that as well.

Later that day she heard the doctors talking to each other that, “I don’t care, she’s a liability”, and then they started speaking softer. Later that day, one of the doctors asked her to clean the second floor windows, which were floor to ceiling and would have required a ladder to clean. Believing the doctor was joking, she responded, “I don’t do windows”. Indeed, Ms, Roopchand had never before been asked to clean windows because the medical practice had a cleaning service. The doctor asked her two more times and she again refused. She asked her co-workers whether any of them had ever been asked to wash windows, and nobody had ever been asked to wash windows.

She was then terminated on the spot for insubordination. The Plaintiff was understandably shocked, especially since one of her co-workers her argued forcefully with the same doctor and told him to “shut up” and yet suffered no discipline at all. The Plaintiff filed for unemployment and the Department of Labor found that she was not terminated for misconduct. Then she sued. The Defendants, after discovery, filed for summary judgment, and Judge Thomas Walsh, of Union County, shockingly granted summary judgment. To do so, Judge Walsh displayed disappointing ignorance and disregarded key facts.

First, the Judge blamed the Plaintiff for assuming that one doctor had told the other about the high-risk pregnancy, and falsely stated that “there is no evidence whatsoever that [the doctor] even knew of [plaintiff’s] pregnancy prior to terminating her employment”. He stated that although Ms. Roopchand alleged that her pregnancy was high-risk due to hypothyroidism, “she did not have any work restriction due to her pregnancy, and at no time told [the defendants] that she had any work restrictions.”

The Appellate Division reversed. The panel acknowledged that washing windows was not part of the plaintiff’s regular job duties and that she had never been asked to do so until she announced that she had a high-risk pregnancy. Furthermore, she was the only employee ever asked to do so. The Appellate Division found that there was ample evidence presented by the plaintiff that the employer’s reason for termination was pretextual and that the real reason was discriminatory, and accordingly reversed the dismissal.

Two important points here. First, our judiciary is still struggling with pregnancy and childbirth-related issues despite the recent amendments to the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12(s) which expand the explicit protection of pregnant workers and those that have to breast feed and express milk.

Second – and this is an important point – the Appellate Division took time to point out that the Department of Labor found in her favor at the unemployment appeal, holding that, “Had the doctor informed the claimant that her refusal to comply with the directive would result in her termination she would have informed him she was refusing because of her high risk pregnancy.” Although unemployment testimony and opinions are not binding on the courts, Appellate Courts have been willing to consider that grant of unemployment benefits as evidence to support the denial of summary judgment. See also, Gibbs v. Caswell-Massey, 2011 N.J. Super. Unpub. LEXIS 2629 (App. Div. 2011). This underscores why it is so important to have an experienced unemployment attorney handle any unemployment hearing, and why these hearings need to be taken very seriously.

Motion Judge: Thomas J. Walsh, J.S.C., Union County.

Appellate Judges: Reisner, Koblitz, and Mayer.

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By Matthew Schorr

Castleberry v. STI Group, No. 16-3131 (decided July 14, 2017)

This week focuses on a decision out of the United States Court of Appeals For the Third Circuit. This case was appealed from the U.S. District Court for the Middle District of Pennsylvania.

The co-plaintiffs, Atron Castleberry and John Brown, are African-American males hired by Defendants in 2010 as general laborers. Over the course of their employment they experienced several instances of racial harassment by Defendants’ employees and upper management. In addition to overtly racist comments, management also did not allow these two employees to do the same work as their non-African-American counterparts. The Plaintiffs’ termination occurred after an incident where a supervisor told Plaintiffs that if they had “n*gger-rigged” the fence they would be fired. Plaintiffs reported the offensive language to a superior and were fired two weeks later without explanation. They were then rehired and fired again for “lack of work.”

Plaintiffs brought a claim in Pennsylvania District Court alleging harassment, discrimination, and retaliation under §1981. The district court dismissed Plaintiffs’ §1981 claim and the Plaintiffs appealed to the Third Circuit.

The Third Circuit discussed the confusing and conflicting precedents regarding claims of harassment or hostile work environment. There have been several different standards applied over the years, so the Third Circuit took this opportunity to clarify. The Third Circuit decided that the correct standard is “severe or pervasive.” This was a significant change from the previously existing case law standard of “severe and pervasive.” The disjunctive created by the word “or” now puts the Third Circuit law firmly in line with the New Jersey Supreme Court in Lehmann v. ToysR’Us, Inc., 130 N.J. 587 (1993) and the United States Supreme Court in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

Additionally, the court determined that a single use of the “n-word” can suffice to state a claim for hostile work environment or harassment. The court further clarified this point by stating that a Plaintiff must plead the incident to be extreme enough to change the terms and conditions of employment to serve as a harassment claim. This is significant because the court is ruling that a single isolated incident of discrimination is enough to state a claim for harassment. This ruling puts the Third Circuit in line with the New Jersey Supreme Court ruling in Taylor v. Metzger, 706 A.2d 685 (1998).

This is great decision for employees and forces employers to be even more vigilant to prevent racial harassment in the workplace.

Argued before AMBRO, VANASKIE, and RESTREPO, Circuit Judges.

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By Jenelle Hubbard

Maryanne Grande v. Saint Clare’s Health System, No. A-67-15, 2017 N.J. LEXIS 746 (decided July 12, 2017).

This week, our Case of the Week focuses on the New Jersey Supreme Court’s decision in Grande v. Saint Clare’s Health System, which this blog has previously covered.

In sum, Maryanne Grande worked as a Registered Nurse with St. Clare’s Health System for ten years when she was terminated in July 2010.  Beginning in 2007, Ms. Grande suffered a series of work-related injuries.  She suffered her final work-related injury in February 2010, while she was caring for an overweight patient. She sustained injuries to her back which ultimately required surgery and four months of recovering and rehabilitation before she could return to work.

In July 2010, Ms. Grande’s doctor cleared her to resume full-duty work. However, St. Clare’s required Ms. Grande to undergo a “functional capacity evaluation” or “FCE” before she could return to work. Ms. Grande underwent the examination, the results of which recommended certain maximum loads for her to bear. The FCE results also explained that Ms. Grande qualified to return to work on “altered duty” based on the Report’s recommendations. Following the functional capacity evaluation, Ms. Grande was summoned to a meeting with her supervisor where she was fired.  Ms. Grande filed suit against her former employer asserting two counts of unlawful discrimination based on her disability and a perceived disability.

The trial court granted summary judgment in favor of St. Clare’s and dismissed the case, finding that Ms. Grande did not establish a prima facie case of discriminatory discharge because she “failed to articulate whether she was performing (or was able to perform) her job at a level that met the employer’s legitimate expectations.” Ms. Grande appealed and a divided Appellate Division reversed, vacating summary judgment, because the record contained several material facts in dispute that could only be resolved by a jury.  St. Clare’s then appealed the matter to the New Jersey Supreme Court.

Last week, the New Jersey Supreme Court affirmed the majority Appellate Division ruling and remanded the matter to the trial court for further proceedings.  Notably, this case is the first time, outside of a failure-to-accommodate claim, that the Court considered at what point in the McDonnell Douglas analysis a court is to consider the availability of a reasonable accommodation.  The Court held that said reasonable-accommodation consideration belongs in the second prong analysis of a plaintiff’s prima facie case, stating:

A plaintiff may satisfy the second prong of the prima facie case for an allegation of discriminatory discharge based on a disability by putting forth evidence either that she was actually performing her job or was able, with or without reasonable accommodation, to perform her job to her employer’s legitimate expectations.

With respect to Ms. Grande, the Court held that Grande had met the modest burden to withstand summary judgment as to the second prong of her prima facie case because a material issue of fact exists “as to whether Grande’s periods of absence from work preclude her from demonstrating that she was actually performing her job at the time she was terminated.”

The Court also examined the employer’s alternate claim on appeal that, even if Ms. Grande has established a prima facie case, Saint Clare’s is entitled to summary judgment on the basis of its defense (under the second step of the McDonnell Douglas framework), that the firing of Ms. Grande was justified because she was both unable to perform the essential functions of her job and unable to do so without posing a risk of harm to herself of others.  The Court held that to provide its claim, the employer must show that it “reasonably arrived” at its opinion that Ms. Grande’s perceived disability precluded her from performing as a R.N. (i.e., that its opinion is “based upon an objective standard supported by factual evidence”).

The employer maintained that it met this burden by relying on the Ms. Grande’s FCE Report.  However, the Supreme Court found that the report presented material issues of fact as to whether the lifting standards identified by the report as St. Clare’s requirements are actually the standards applicable to Ms. Grande’s position and as to whether the report conclusively establishes that Ms. Grande is unable to perform her job.  The Court found that these factual disputes are material to the issue of whether Ms. Grande’s disability precluded her from performing the essential functions of her job and the evidence that St. Clare’s presented that Ms. Grande presented a risk of injury to herself or patients is inadequate to resolve such material issue.

This decision, including the concurring opinion by Justice LaVecchia, is a must-read.

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By Adam Schorr

Hernandez v. The Office of the Commissioner of Baseball, Case No. 1:17-cv-456 (S.D. Ohio, Complaint filed July 3, 2017)

Veteran Major League Baseball umpire Angel Hernandez has filed a Title VII race discrimination case against the MLB and the Commissioner’s office alleging race discrimination. Add this to the growing list of questionable calls made by Angel Hernandez.

Angel Hernandez is Cuban and has been an MLB umpire since 1993. From his hiring through 2010, Hernandez received praise from the league office and multiple postseason assignments, including two World Series assignments. In 2011, Joe Torre, a former player and manager, was put in charge of overseeing MLB umpires. According to the Complaint, Torre had a grudge against Hernandez from an incident in May 2001 when Torre insulted Hernandez after a call Torre perceived was incorrect. After Torre took over, Hernandez’s evaluations got worse and he did not receive another World Series assignment.

The Complaint alleges that while Torre’s animus against Hernandez may be personal, Hernandez is being discriminated against in that of the 36 umpires Torre has assigned to the World Series, only 2 have been non-white, and both of those were the same umpire, Mexican Alfonso Marquez. The Complaint further alleges that there is systematic discrimination dating back to 2000 that prevents minorities from getting promoted to Crew Chief

This Complaint is confusing, disjointed, and unfocused. The first half of the Complaint makes the claim appear to be that Torre was discriminating against Hernandez, but in paragraph 66, it is admitted that Torre’s animus is personal and not discriminatory. The second half of the Complaint alleges that the real discrimination is that white umpires are treated better than non-white umpires in that they get better assignments and better jobs, but the time frame is repeatedly changed. Despite focusing more than half the Complaint on Torre, none of the Counts allege anything specific regarding Torre. Ultimately, it appears that this is a disparate impact claim that the MLB has routinely favored whites over non-whites. This claim gets lost in the morass of Hernandez and Torre’s personal animus.

The disparate impact claim is broken down into two parts. The first is that non-whites are not being assigned to the World Series under Torre and the second is that non-whites are not being given crew chief positions. Not alleged is that the MLB is not hiring minority umpires. There is no attempt to compare percentage of minority umpires against percentage of total umpires getting these positions. These issues will have to be addressed during discovery.

More problematic for Hernandez, however, will be proving that this disparate impact affected him personally. Even a cursory google search returns many results about Hernandez:

• In a 2010 poll of MLB players, he was named the third worst umpire in baseball.
• There have been numerous complaints about missed calls, including having the worst strike call in the MLB this season.
• In his last major assignment, the 2016 National League Championship Series assignment, he blew a call that caused the player to publicly question him.
• He has been called “among the most vilified umpires in the major leagues” and “just bad.”
• Perhaps most damning, given the content of the Complaint, is that going back as far as 1991, when Hernandez was still an umpire in the minor leagues, he had a reputation as “an umpire who yearns for the spotlight”. This did not surprise anybody when the article resurfaced in 2013.

To prove a claim of disparate impact discrimination, a plaintiff must be able to show that the policy or procedure in place was in fact not neutral and in fact did cause him to be denied beneficial job actions such as promotions or bonus opportunities. While Hernandez alleged that he was a good performer and only received poor marks because of Torre’s personal animus against him, Hernandez will have a significant uphill battle to prove that he was deserving of what he claims and that it was discrimination and not his own performance that has led to his lack of opportunities.

We will continue to monitor this case and update as it moves along.

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By Arykah Trabosh

Credeur v. State of Louisiana, 2017 U.S. App LEXIS 11269 (5^th Cir., Jun. 23, 2017)

The U.S. Court of Appeals for the 5^th Circuit recently upheld a grant of summary judgment, agreeing with the court below that the Plaintiff could not perform an essential function of her job – regular attendance.

Credeur was employed by the Office of Attorney General for the State of Louisiana (“DOJ”) from 2008 to 2014 as a litigation attorney. In 2010, Credeur underwent a kidney transplant and was granted an accommodation to work from home for six months. Three years later, Creduer experienced complications from the transplant and went out on FMLA leave from March to August 2013. When her leave expired, Credeur requested that she be permitted to work from home. The DOJ granted the request on a temporary basis with the goal that Credeur would eventually return to her “normal work hours and duties.”

In January 2014, the DOJ sent Credeur an ADA Supplemental Request for Medical Status. Credeur submitted to the DOJ evaluations form her medical providers. The evaluations conflicted on whether Credeur could return to work at her office in the DOJ.  In response, the DOJ advised Credeur that “it is not possible for a litigation attorney to work from home on a long term basis.”  The parties had a meeting in March 2014 at which time the DOJ advised that Credeur would be required to work 3-4 hours per day in the office and to take the remaining time as leave. She was expressly told that she would no longer be permitted to work from home.

Credeur returned to the office in late March 2014, at which time the DOJ placed her on a “Last Chance Agreement” which advised her of various performance issues. Credeur refused to sign the agreement and requested FMLA leave, which was granted.  A few weeks into her leave, Credeur developed an infection and again requested that she be permitted to work from home instead of being on leave. The request was denied but the DOJ did advise that she would be permitted to stay on leave after her FMLA leave expired in June 2014.

In August 2014 the DOJ again contacted Credeur and advised that litigation attorneys could not work from home on a long term basis. Credeur eventually returned to work in late August 2014. However, two days prior to returning to work, Credeur filed suit against the DOJ alleging failure to accommodate, harassment, and retaliation. Four months later, Credeur resigned from employment.

The central issue in her failure to accommodate claim was whether an essential function of Credeur’s job as a litigation attorney included regular office attendance. The Court observed that there was a general consensus that regular on-site attendance is an essential function of most jobs. The Court stated that “this is especially true when the position is interactive and involves a significant degree of teamwork.”

In affirming the lower court’s decision, the 5^th Circuit were mindful of statutory and regulatory mandates requiring that the Court give deference to the employer’s judgment as to what constitutes an essential function of the job.  While Credeur argued she had successfully worked from home on several occasions before the DOJ, the Court further found persuasive the fact that neither state statutes nor regulations instruct the courts to “credit the employee’s opinion about what functions are essential.” Accordingly, the court held that Credeur’s unsupported testimony that she could perform her job functions from home did not create a fact dispute sufficient to preclude summary judgment.

With regard to Credeur’s harassment claim, the Court, similarly upheld the lower court’s decision. Credeur alleged that the following conduct constituted harassment based upon her status of being disabled: (1) being ordered to attend a meeting; (2) being required to work 3-4 hours at her office and not from home; (3) criticism of her work performance; (4) threats of termination; (5) being asked to sign “false payroll documents;” and (6) being forced to take an unpaid leave of absence.

The court held that this type of conduct was not harassment which was severe or pervasive. The Court further observed that the record demonstrated deficiencies in Credeur’s performance which were legitimate grounds for concern and criticism. The Court further found no merit to Credeur’s allegation that she was forced to submit “false payroll documents.” Specifically, the payroll documents at issue were the leave slips that the DOJ required Credeur submit to account for the hours she did not work in the office.  Credeur took the position that since she did in fact perform some work while at home that she should be compensated for said work. However, the Court pointed out that Credeur took it upon herself to perform work while at home despite being told by the DOJ that she was not to do so as she would not be compensated for said work. Lastly, the Court found the DOJ justified in placing Creduer on unpaid leave as Credeur was ineligible for the initial FMLA which the DOJ had erroneously granted. Therefore, the DOJ’s requirement that the extended leave be unpaid, after the exhaustion of “FMLA” was not harassment.

With regard to Credeur’s retaliation claim, the court applied the same analysis it utilized in evaluating the allegations of harassment. Accordingly, the Court held that the record did not support an inference that the DOJ’s actions were retaliatory.

This case reaffirms that a key element in any disability discrimination claim is the ability of the employee to perform their job duties.

The post Week Ending 6/30/17: Credeur v. State of Louisiana appeared first on Schorr Law | The Employment Lawyers | South Jersey Employment Attorneys.

Univ. of Tex. v. Kearney, 2017 Tex. LEXIS 615 (Texas Supreme Court – Petition of Review denied June 23, 2017)

The Texas Supreme Court this week denied the University of Texas’s Petition of Review, which sends this discrimination and retaliation case brought by women’s track coach, Beverly Kearney, back to the trial court to continue litigation.

Coach Kearney, who is African-American, was the head coach of the University’s women’s track and field team for approximately 21 years during which time she had much success and received considerable recognition. Kearney alleges that she has won more competitions than any other African-American coach in the history of all NCAA sports and at the time of her termination was the only African-American head coach in any sport in the history of the University. In 2012, she was advised that a report had been made that she had engaged in a relation with a former student in 2002. Shortly thereafter, Kearney made complaints of past incidents of race and sex discrimination. Then she was threatened that she was going to be fired regarding the relationship in 2002. Facing termination, Kearney resigned.

Kearney alleged that numerous white and male coaches had previously engaged in relationships with students or direct subordinates and had not been subjected to meaningful discipline. She promptly filed a charge with the Texas Workforce Commission, which is a required prerequisite for suit under Texas. After the TWC issued a right to sue notice, Kearney filed suit alleging constructive discharge and retaliation. The parties began to litigate and a few depositions were taken, but when Kearney tried to take the depositions of the School’s top officials, the University filed a motion to dismiss for lack of jurisdiction based upon an alleged failure to exhaust administrative remedies and moved to dismiss the claims. Based upon the fact that Kearney had clearly filed within time limits and had received a Right to Sue notice, it seems like they must have known it was a long shot. It did cause a two year delay, however, and perhaps that was the defendant’s intention.

The trial court denied the plea, and the defendants appealed to the Court of Appeals of Texas. The Appeals Courts denied the jurisdiction motion but held that since Ms. Kearney alleged that she was threatened with termination due to a disparate and discriminatory charge of misconduct, she had negated her retaliation lawsuit. The retaliation charge was dismissed by the Court of Appeals, but the constructive discharge claim was permitted to proceed. (Read the Court of Appeals decision here). The University Petitioned for review to the Texas Supreme Court. On Friday, the Supreme Court denied the Petition without comment. The matter will now return to trial and the school’s officials will now have to face the depositions they tried so hard to avoid.

The Associated Press reported that the University has already spent over $400,000 fighting this lawsuit, and they have not even taken most of the depositions yet. This will still be a long distance contest for Coach Kearney, but at least she is still in the race.

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Pritchett v. State of New Jersey, MER-L-2189-13 (Mercer County – Trial Verdict June 15, 2017)

A Mercer County jury has made another whopping jury verdict in an employment case against the New Jersey prison system, this one involving the New Jersey Juvenile Justice Commission (“JJC”). On Wednesday, June 14, the jury found liability against the JJC and awarded $1,233,000 in economic damages for front pay and back pay. The jury tacked on an additional $575,000 in emotional distress. On Thursday, June 15, the jury heard the punitive damages arguments and awarded an additional $10 million in punitive damages. All tolled, the jury awarded $11,808,000.

Shelly Pritchett was a Senior Corrections Officer who had worked for five years before being injured on the job. As a result of the injuries, Ms. Pritchett went out on a workers compensation. During her workers compensation leave, after several operations, a MRI determined that she had Multiple Sclerosis. This caused an additional extension of her leave. Her leave had begun on June 8, 2011. The JJC granted her Family and Medical leave for 12 weeks and then allowed an extension. But on October 11, 2011, the JJC advised that the FMLA had expired and that if Ms. Pritchett did not return by November 2, 2011, she would be terminated.

Ms. Pritchett’s physican would not clear her to return on November 2 because she still needed some treatment for her Multiple Sclerosis. The employer refused to grant any further extension, despite the fact that they had granted others similar extensions. When the union protested on Ms. Pritchett’s behalf, they were told, “We are going to stop it at some point so we are stopping it now.” Ms. Pritchett was given an ultimatum to resign or face disciplinary actions. Accordingly, she resigned. This lawsuit was filed in October 2013. There were four counts: (1) Failure to Accommodate/Failure to Engage in the Interactive Process under the NJLAD; (2) Disability Discrimination; (3) Disability based upon perceived disability; and (4) Request for equitable and injunction relief.

It took 3-1/2 years to get the matter to trial, which is a pretty typical time frame for an employment lawsuit against the State. Despite what seemed like clear-cut liability for disability discrimination, the JJC never offered more than $25,000 for settlement and flatly refused to reinstate Ms. Pritchett. Obviously, plaintiff’s counsel did a great job in presenting Ms. Pritchett’s case and convincing the jury that the actions of the JJC were both discriminatory and malicious.

This is just the latest in a series of enormous employment verdicts against New Jersey’s prison system. Last year, our firm won a $9.2 Million judgment against the NJDOC in Easley v. NJDOC. That had followed a number of multi-million dollar judgments against the NJDOC. The NJDOC, however, is not the only employer who finds themselves in legal trouble for discriminating against disabled employees who require leave. This is an all too common occurrence.

Although Federal law provides 12 weeks of job protection for a serious health condition under the Family and Medical Leave Act, the New Jersey Law Against Discrimination requires employer to provide additional leave beyond 12 weeks for disabled employees, so long as the accommodation is reasonable and does not create an undue hardship for the employer. The employer is required to engage in an interactive process with the employee and her physician in order to determine what accommodations or leave is necessary, so they can determine whether the extended leave will create an undue hardship for the employer.

Just this week, as this case was coming to an end, our firm filed a new lawsuit (Ionno v. NJDOC) for firing a corrections officer who was missing days due to an intermittent disability. Unfortunately, some employers never learn a lesson. At some point one would hope that our State Government would begin listening to the Courts and juries who continue to punish the State prison system for discriminating and retaliating against its workers. Unfortunately, that time has not yet come.

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P.S. v. Board of Review and NBC40, 2017 N.J. Super. Unpub. LEXIS 1390 (App. Div., June 7, 2017)

It is hard to collect unemployment when you quit your job. Really hard. Unlike a misconduct disqualification where the burden is on the employer to prove misconduct, in a voluntary quit situation, the burden is on the employee to demonstrate “good cause connected to the work”. Add to that a presumption that the Appeal Tribunal examiner has correctly assessed credibility and the presumption by the Appellate Division that the Department of Labor’s decisions should not be disturbed unless arbitrary and capricious, and you have a recipe for an extremely difficult appeal.

That difficulty was graphically illustrated in this week’s Appellate Division decision in P.S. v. Board of Review. Ms. S. (because there was sexual harassment, the Appellate Division honored the claimant’s request to keep her name anonymous. We will also honor that request.), worked for NBC40 television. She had been suffering sexual harassment in the workplace by her general manager, and filed a lawsuit against her employer while she was still working there. The general manager was fired. She quit three months later. She testified at unemployment that she quit because of the sexual harassment and because the employer was retaliating by stifling her sales. The employer testified at unemployment that Ms. S’s sexual harassment claims were investigated and found to have no merit and that the general manager was terminated for reasons other than the sexual harassment complaint.

The Appeal Tribunal disqualified Ms. S. finding that the sexual harasser was fired three months prior to the resignation for reasons other than sexual harassment, and that Ms. S.’s income had increased during her employment, and concluded that the terms and conditions of her employment did not warrant her voluntary resignation. The claimant did not appeal at that time, and pursued her lawsuit.

Eighteen months later, at a deposition, the CEO of NBC40 admitted that Ms. S.’s sexual harassment had been substantiated and that the general manager was fired for “gross misconduct” for sexually harassing her. Another year later, the case went to trial. Prior to trial, the Court dismissed the constructive discharge claim, and at trial the Court granted directed verdict on the post-employment retaliation claim. The jury found no cause on Plaintiff’s CEPA claim, but found in her favor on the LAD hostile work environment and sexual harassment claims and awarded $300,000.00.

In the meantime, after the deposition of the CEO, Ms. S. filed a (very late) appeal with the Board of Review claiming that she had good cause for the late appeal because she had now acquired proof that the employer deliberately lied about their determination on the sexual harassment claim and the fact that the general manager had not been fired because of it. The Board of Review did not care that the employer had lied. They refused to consider the claimant’s appeal on timeliness grounds, and found that the employer’s dishonesty did not change the outcome since the claimant had quit three months after the harasser was fired and that the claimant did not prove that her income had suffered as a result of retaliation. The Appellate Division affirmed for essentially the same reasons, citing the limited review of administrative decisions.

Apparently, the claimant’s proofs of retaliation and constructive discharge were weak, given that the Trial Court also dismissed the constructive discharge and retaliation and the jury no-caused the retaliation claim. But the decision disturbs me because willful misrepresentations at unemployment hearings are punishable by fine, and furthermore, since they are under oath, they constitute perjury. There could not have been a more clear cut case of misrepresentation by the employer, and that should have, at least, provided good cause to reopen the unemployment claim. Ultimately, the claimant may have still lost, but there should have been some consideration of the employer’s misconduct and dishonesty. Too often, the Department of Labor gives employers a free pass.

The real lesson here to employees is that there are very few good reasons to voluntarily quit a job. There is almost always a much better option and employees are strongly advised to contact an attorney before tendering that resignation.

Judges: Rothstadt and Sumners.

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Grau v. AHS Hospital Corp., 2017 N.J. Super Unpub. LEXIS 1342  (App. Div., June 2, 2017)

Some of the most emotional difficult cases that come before us involve nursing employees that have been injured on the job and have lost their career jobs because of injuries suffered in the line of duty. It is a fact of life for nursing professionals that it is an extremely physically demanding job, often involving lifting heavy items and sometimes lifting and carrying patients, pushing, pulling, bending, reaching, amid all sorts of dangerous conditions, including slippery floors. Unfortunately, when nursing professionals suffer lifting injuries, it all too often results in the end of their career. While logic and common sense would dictate that there should be some sort of job protection to these most dedicated and important employees, it often falls short. Francis Grau learned that lesson the hard way this week.

Ms. Grau worked for twenty-six years as a nursing assistant in a cardiac unit at Morristown Medical Center. As a nursing assistant, she was responsible for assisting patients with activities of daily living, bathing and helping patients with their hygiene maintenance, making beds, turning and positioning patients as needed, maintaining and stocking linen carts, and moving, maintaining, and returning all equipment used in patient care.  She also needed to be able to push stretchers, chairs, and empty beds and, as part of a team, a patient while in a bed, for distances of hundreds of feet.  In January 2013, Ms. Grau fell at work and injured her shoulder.

Her physician cleared her to return to work on “light duty” with strict restrictions on lifting, pushing and pulling. As a result, Ms. Grau was unable to work as a nursing assistant. The employer accommodated her with a temporary sedentary desk position in infection control. The evidence, according to the opinion, demonstrated that the employer also tried to find a permanent sedentary job for her but was unable to do so. The employer also attempted to retrain Ms. Grau, but she was unable to keep up with retraining because of her limited ability to use a computer.

The employer was only willing to provide light duty for 90 days. In the meantime, it was determined that Ms. Grau was now permanently unable to perform the duties of a nursing assistant. The employer was able to convince the Court that they had done everything possible to accommodate or find a new job for Ms. Grau, but they were unable to find her a position. Unable to find another position, in February 2014 Ms. Grau retired and successfully applied for Social Security Disability.  In March she filed suit alleging disability discrimination. After discovery, the Defendant successfully filed and was granted summary judgment.  The plaintiff appealed.

The Appellate Division affirmed. The unpublished decision contains a fairly comprehensive treatise of the law governing disability discrimination, reasonable accommodation, and the employer’s duty to engage in an interactive process. The Court concluded that Ms. Grau was unable to perform her duties of nursing assistant, with or without accommodations, and therefore did not have protection for that job. With regard to the obligation to find another position as a reasonable position, the Court found that the employer had met its burden to demonstrate that they did not have an open position that Ms. Grau was qualified for. Furthermore, Ms. Grau’s ability to qualify for other positions was complicated due to her inability to competently use a computer.

These cases are very challenging and very dependent upon tenacious discovery into whether there were available non-physical positions; whether those non-physical positions could be made permanent; whether retraining is possible; and whether the job itself could be restructured. One way that employers, especially in the medical field, discriminate against its employees is by creating job description requirements that are completely unrealistic. We routinely see and litigate cases where employees who do not lift at all as part of their normal every day duties have job descriptions that require an employee to be able to lift 100 pounds. The Court should not take these job descriptions at face value and plaintiffs in these cases should focus on the creation of such ridiculously overbroad job descriptions as evidence of the employer’s discriminatory animus.

We believe that these cases will become increasingly frequent and difficult as the health care industry and its employees struggle with the physical demands of health care work.  The Law Against Discrimination provides broad protection to temporarily disabled employees, but unfortunately employees who suffer permanent disabilities often find their cases slip through the cracks in the law.

Appellate Judges: Haas and Currier.

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Meyer v. University of Iowa, District Court of Iowa, Polk County (Settlement announced May 18, 2017)

A settlement of $6.5 million was announced this week after a verdict in the gender and sexual orientation discrimination case brought against the University of Iowa by former athletic administrator Jane Meyer and her partner, former women’s field hockey coach Tracey Griesbaum.

Jane Meyer was the senior associate athletic director for University of Iowa.  She had been complaining of discrimination in wages and opportunities on the basis of her gender.  She was also experiencing discrimination based upon her same sex relationship with the women’s field hockey coach, Tracey Greisbaum, who was suffering her own discrimination problems.  Greisbaum had been fired in 2014 and threatened to sue for gender and sexual orientation discrimination.  The management at University of Iowa publicly announced that they had decided to fire Meyer because Greisbaum had threatened to sue.  Apparently, no one advised them that associational discrimination is actionable in itself.

Both Meyer and Greisbaum brought suit in Iowa state court under the Iowa Civil Rights Act.  Meyer’s trial came first.  Earlier this month, an Iowa jury found liability against University of Iowa and awarded $1.45 in compensatory damages.  The parties were preparing for the punitive damages phase when the case settled.  Greisbaum’s trial was due to begin in June.  The settlement provides for $2.33 million to Meyer and $1.49 million to Griesbaum to cover lost wages and emotional distress damages. The school will also pay $2.68 million to the plaintiffs’ attorneys.

Cases like this help to educate employers that gender and sexual orientation discrimination is bad for business.  Associational discrimination, where an employer discriminates or retaliates against an employee because of that employee’s relationship with another employee, has been established in New Jersey to be unlawful as well as in Iowa.  Unfortunately, these situations continue to occur and these lawsuits continue to be brought.

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Hejda v. Bell Container Corp., ___ N.J. Super. ___; 2017 N.J. Super. LEXIS 59 (App. Div. May 9, 2017) (Published)

In a published opinion this week, the New Jersey Appellate Division ruled that a discrimination claim brought under the New Jersey Law Against Discrimination cannot be pre-empted by the Labor Management and Relations Act (LMRA) unless resolution of the discrimination claim will require interpretation of any provision of the collective bargaining agreement between the union and employer. This case follows a recent Supreme Court opinion in which the Court held that the Conscientious Employee Protection cannot be preempted by the LMRA under the same circumstances.

Brian Hejda was a commercial truck driver for Bell Container Corp. He suffered a workplace injury and filed for workers compensation. After being cleared by his physician to return to work, the employer refused to permit Mr. Hejda to return without an independent medical examination. The union filed a grievance of Mr. Hejda’s behalf, and took the matter to arbitration, but the arbitrator ruled that the employer did not violate the collective bargaining agreement by refusing to permit Mr. Hejda to return without an independent medical examination.

Mr. Hejda then filed an administrative claim with the New Jersey Department of Labor alleging that he had been discriminated against for filing a worker’s compensation claim. His claim was dismissed by the Department of Labor, finding that Mr. Hejda had not received a proper certification to return to work. Mr. Hejda then presented a new certification which, he claimed, complied with all legal requirements. He was offered a job as a “night switcher” but the employer would not permit him to drive. Mr, Hejda then filed this lawsuit alleging violation of the New Jersey Law Against Discrimination and worker’s compensation retaliation.

The employer moved to dismiss and the trial judge granted the motion, holding that the resolution of the case depends upon an interpretation of the collective bargaining agreement and therefore was pre-empted by the LMRA. Pre-emption occurs when Congress declares that a Federal Law is so encompassing that it supersedes State law.

Ultimately, the Appellate Division ruled that there is nothing alleged in the NJLAD or worker’s compensation retaliation claim that requires an interpretation of the collective bargaining agreement and therefore was not pre-empted by the LMRA. The Court relied upon a recent N.J.Supreme Court case, Puglia v. Elk Pipeline, Inc., 226 N.J. 258 (2016), in which the Court held that a state whistleblower claim under CEPA is not pre-empted where the interpretation of the collective bargaining agreement was not necessary for resolution.

It is important to note that Mr. Hejda is not home free. The trial court only addressed the subject matter jurisdiction part of the motion to dismiss. On remand, Mr. Hejda still faces numerous other parts of the motion to dismiss that the trial court did not address because the court had found they did not have jurisdiction. Despite the uphill battle, Mr. Hejda’s case is important to clarify that the NJLAD will not be pre-empted by the LMRA unless the interpretation of a CBA is necessary to the resolution of the lawsuit.

Appellate Judges: Messano, Espinosa and Guadgno (opinion by Espinosa).

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In re N.J.A.C. 12:17-2.1, ___ N.J. Super. ___; 2017 N.J. Super. LEXIS 58 (App. Div. May 1, 2017) (Published)

This week our law firm, Schorr Law, P.C., was a successful litigant arguing for the invalidation of an onerous and illogical unemployment regulation that would have disqualified unemployed workers for benefits if they committed negligent acts. The Appellate Division, in a published opinion, invalidated the Department of Labor’s regulation, N.J.A.C. 12:17-2.1, which defines the terms “simple misconduct” and “severe misconduct”.

To provide some history, we have had a constant struggle with the Department of Labor, which has been increasingly willing to disqualify workers who have lost their jobs due to unintentional mistakes even though the regulations clearly required there to be malicious and intentional violation of policy in order to be disqualified. These have included making a mistake mixing paint the wrong color, accidentally giving the wrong x-ray to the wrong patient with the same last name, and accidentally leaving a jewelry case unlocked (nothing was stolen).

The negligence issue came to a head in the case of Silver v. Board of Review, 430 N.J. Super. 44 (App. Div. 2013). In that case we represented Joan Silver, a teacher in a Youth Correctional Facility. Despite her best efforts, a student had stolen a pen, which Ms. Silver reported immediately after discovering that the pen was missing. The employer fired her, and then the Department of Labor disqualified her, arguing that her mistake could have led to a fatality, since the pen could arguably be used as a weapon (mightier than a sword, they say).

In a rare published opinion, the Appellate Division reversed, holding that the unemployment statute was not intended to disqualify workers who lose their jobs due to unintentional mistakes. The Appellate Division pointed out that even the Department’s own regulations require an intentional and malicious action to be taken in order to constitute “misconduct”. Rather than accepting the decision of the Court, the Department of Labor retaliated by changing their statute defining misconduct to remove the requirement of malice and to add negligence to the definition of “simple misconduct”.

The new regulation took dicta (non-binding comments) from a 1956 case, which quoted a definition from a 1943 legal dictionary, which had defined misconduct as including “negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design . . .” Our firm, along with a few other attorneys and organizations objected to this regulation as being illogical and oxymoronic – after all how can negligence be intentional or evil? If it is negligent, then it is, by definition, unintentional.

The Department of Labor enacted the regulation over our strenuous objections. Our firm, and the National Employment Lawyers Association – New Jersey, represented by our firm, filed an appeal to challenge the regulation. The Appellate Division invalidated the regulation, holding that the inclusion of the negligence language has led to a “linguistic morass, one that cannot be readily or sensibly understood and applied.” The Court ordered the Department to “go back to the proverbial drawing board and develop a clearer and more cogent alternative”. The Court gave the Department 180 days to either take corrective action, or in the alternative, to appeal to the State Supreme Court.

This is a huge win for New Jersey’s unemployed workers – the most vulnerable of our citizens. New Jersey calls its program “Unemployment Insurance”. Every employee in New Jersey pays a weekly premium through wage deduction from their paycheck. Just like car insurance is in place to cover accidents, even when the insured is driving negligently, unemployment insurance is intended to provide a safety net to workers who lose their job for reasons other than deliberate misconduct or voluntarily quitting without good cause. This important Appellate decision affirms that workers should never be denied unemployment benefits for making an unintentional error.

We are very proud to have led this successful effort. Keep watching this blog. We will keep you informed as to new developed.

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Koch v. Bd. of Review, 2017 N.J. Super. Unpub. LEXIS 1005 (App. Div. April 25, 2017)

Our firm won a significant victory for our client, Henry Koch, and for unemployment claimants with the Appellate Division’s decision in Koch v. Board of Review.  It was the culmination of a very long battle involving the largest individual unemployment refund to ever be litigated.

Henry Koch became unemployed and filed for benefits way back in March 2010.  He was initially approved for benefits based upon his statements about the separation.  The employer did not respond at all and did not challenge the unemployment.  The separation took place during the recession at which time unemployment benefits could be extended to 99 weeks.  Mr. Koch collected benefits for a full year, but then received a notice that the Department of Labor had received information from the employer who was now claiming that Mr. Koch quit without good cause.  The Department of Labor sought a refund.

Mr. Koch appealed to the Appeal Tribunal, which held that he had not quit and upheld his benefits.  The employer then appealed to the Board of Review, which reversed and held Mr. Koch disqualified.  By that time, Mr. Koch had already collected his entire maximum unemployment benefit.  The Department of Labor sought over $60,000 to be refunded.  Mr. Koch appealed to the Appellate Division.  He argued that (1) he did not quit; and (2) that the employer should not have been permitted to assert an objection and appeal a year later when the law requires both employers and employees to appeal determinations within 10 days. N.J.S.A. 43:21-6(b)(1).

In its first opinion, the Appellate Division deferred to the Board of Review on the disqualification, but remanded to the Board of Review for a determination of whether the employer filed a timely appeal, and whether a waiver was in order given the lengthy delay.  The Board of Review held an evidentiary hearing but did not subpoena the employer to produce proof that it had made a timely appeal.  The Department of Labor similarly produced no evidence of a timely appeal.   At the hearing Mr. Koch presented evidence that the employer did not appeal for over a year and did so then because they had hired a 3rd party administrator to handle their unemployment claims.  He also presented evidence that the Department of Labor had been deliberately destroying evidence of employer appeals.

The Board of Review still held that the employer’s appeal was timely.  Although not a scintilla of evidence supported its decision, the Board of Review ruled that the employer must have filed a timely appeal because “we cannot think of any reason why the employer would submit the form a year after the claim was filed.”  Three additional appeals were held regarding waiver but the Board of Review refused to consider waiver.  Mr. Koch took the appeal back up to the Appellate Division, who completely reversed and ordered that Mr. Koch was not liable for the refund.

The Appellate Division affirmed that the decision of the Board of Review was arbitrary and not supported by credible evidence.  Most importantly for other unemployment claimants, the Appellate Division made it clear that employers are bound by the same statute of limitations for appealing unemployment decisions as claimants.  So often we represent claimants in unemployment appeals that arise from a late appeal by employers.  This case will help claimants argue that the Department of Labor cannot have different standards for employers and employees.

Appellate Judges: Nugent and Currier.

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Osborne v. N.J. Transit, 2017 N.J. Super. Unpub. LEXIS 962 (App. Div. April 20, 2017)

This week, the Appellate Division issued an unpublished opinion relating to discovery of claims of discrimination by other workers for the same employer.  This opinion has caused great concern and anger among plaintiff employment practitioners.  I do not believe that this opinion changes any law, nor does it create any new roadblocks for employees to compel discovery of other claims of discrimination in the workplace.

Twenty years ago, my first big appellate victory was in the case of Connolly v. Burger King.  In that case, a sexual harassment case, we had sought discovery of claims made against Burger King of sexual harassment from every store in the District.  The trial judge had ruled that Ms. Connolly only worked in one store, and therefore Burger King should only have to produce discovery regarding claims from the one store.  We argued that Burger King’s quality control inspector, who was sexually harassing Ms. Connolly, went to every store in the District and therefore we need to know whether any other store in the District had received complaints of sexual harassment.  On an interlocutory appeal, the Appellate Division issued a rare published opinion holding that other claims of discrimination in the workplace are relevant, not only for liability, but also for punitive damages, and are therefore discoverable.

In this Case of the Week, Katrina Osborne, an assistant supervisor with New Jersey Transit, filed a sexual harassment lawsuit and sought discovery of other claims against NJT.  NJT resisted production and claimed that some of the documents were privileged.  A Superior Court Judge ordered the production, but never signed the order.  A second judge signed the order and then denied a motion for reconsideration.  Neither judge had agreed to review the documents in camera (in chambers) to determine whether there was privileged information, and instead left the burden on the defendant to redact any information they deemed confidential or privileged.

The Appellate Division upheld the part of the order that required production of other claims of discrimination.  That is the really important part of this case.  After 20 years, the cases of Connolly and Payton v. N.J. Turnpike Auth. are the law of New Jersey, and it is beyond dispute that Courts are required to order such production.  This case does not question the Plaintiff’s right to the documents, it merely addresses the procedures involves in the production of documents which the employer claims to be confidential or privileged.

When a party claims that information in an ordered document is privileged or confidential, it is customary that the judge will review the documents to ensure that the party is not improperly asserting privilege and that the claim is privilege is justified.  This is consistent with Payton and Connolly. Regarding confidentiality, “the balance weighs in favor of disclosure with appropriate procedures to ensure justified confidentiality in light of plaintiff’s paramount interest in obtaining relevant materials.” Connolly at 350.  The Osborne Court ruled that, in the event that a party claims privilege or confidentiality in a document to be produced, the Defendant shall not self-redact, but rather shall provide the documents to the court to ensure that the redactions are justified before turning the documents over.

Judges may not like this decision because it will create more work for them.  Consequently, they may be unhappy about ordering broad discovery of other claims.  But New Jersey’s Appellate Court in this opinion reaffirms the vitality of Connolly and will require Judges to not only order discovery of other claims but to also personally ensure that defendant employers do not unnecessarily redact important and necessary information.  Rather than seeing this as a negative opinion for employee plaintiffs, I believe that this opinion may delay discovery in some cases where privilege is claimed, but will ultimately end up providing additional useful information that has been too easily hidden by defendants who self-redact.

Appellate Judges: Lihotz, O’Connor, and Whipple. (Opinion per curiam)

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Hively v. Ivy Tech Cmty. College of Ind., 2017 U.S. App. LEXIS 5839, (7th Cir. [En banc], April 4, 2017)

In a case we have been closely watching, the 7th Circuit, ruling en banc, held that sexual orientation discrimination is protected by Title VII.  We wrote about this case on October 14, 2016, when the Seventh Circuit agreed to hear en banc, a ruling which agreed that sexual orientation should be protected, but nevertheless ruled that precedent would not permit the Court to extend that right.  An en banc appeal is where all of the Circuit judges in a particular circuit agree to hear a case that had been previously heard by only a panel of Circuit judges.

To recap the facts and procedures, Kimberly Hively, a part-time adjunct professor, sued Ivy Tech Community College in South Bend, Indiana, alleging that she had been denied numerous full-time positions solely due to her sexual orientation.  The College’s only defense is that Title VII does not apply to claims of sexual orientation and therefore Hively made a claim for which there is no legal remedy.  The District Court agreed and Hively appealed to the Seventh Circuit.  The Seventh Circuit affirmed, but attacked the law as illogical and anachronistic.

The Full panel of the 7th Circuit was far from unanimous.  The majority held that, by its definition, sexual orientation is necessary about sex:

Viewed through the lens of the gender nonconformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual. Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all. Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).

There were two concurring opinions, which agreed with the majority, but expressed additional reasons.  Both concurring opinions were written by Judge Posner, one of the smartest and most influential jurists to never be on the Supreme Court.  There was a dissent written by Judge Sykes, who believes that it should be up to Congress to change the law by statute and not up to the Courts to make that decision.

Ivy Tech Community College has already announced that they will not appeal the decision to the U.S. Supreme Court.  The School insists that it does not discriminate on the basis of sexual orientation and did not discriminate against Ms. Lively.  The case will now go through the litigation process, Since this had begun on a motion to dismiss, the case is essentially now starting from scratch.

As we stated before, sexual orientation and gender identity discrimination is protected by the New Jersey Law Against Discrimination.  Federal law in the Third Circuit, where New Jersey is, still does not recognize protection for sexual orientation.  This case is only precedent in the Seventh Circuit, so the fight for equal rights for the LGBTQ community continues.

Appellate Judges: WOOD, Chief Judge, and BAUER, POSNER, FLAUM, EASTERBROOK, RIPPLE, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON, Circuit Judges. POSNER, Circuit Judge, concurring. FLAUM, Circuit Judge, joined by RIPPLE, Circuit Judge, concurring. SYKES, Circuit Judge, with whom BAUER and KANNE, Circuit Judges, join, dissenting.

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Bonda v. Elizabeth Fire Department (Complaint), Docket No. UNN-L-l979-13 (N.J. Superior Court, Union County, Final Verdict, March 27, 2017)

An Elizabeth Fire Department employee won a verdict this week in a Conscientious Employee Protection Act trial in Union.  The total verdict was $2,075,000 – $750,000 for lost wages, $325,000 for emotional distress, and $1 million in punitive damages.

According to Fred Bonda’s Complaint, he began working for the Elizabeth Fire Company in 1995.  The Complaint outlines a systematic pattern of discrimination on the basis of Hispanic origin and retaliation for complaining about and refusing to participate in activities which were unlawful and primarily related to being instructed to relax fire codes for buildings belonging to friends of the Mayor.  Mr. Bonda alleged that retaliation and harassment continued to intensify until he was forced to go out on disability leave for emotional distress.

The discrimination claims were dismissed by the Court before the trial, and the Plaintiff dismissed the individual defendants.  So the trial proceeded on only the CEPA count against only the Fire Department.  On January 26, 2017, the jury returned a unanimous verdict for $1,075,000.  The jury came back last week to hear and decide punitive damages.  On the punitive damages, the unanimous jury added another $1,000,000.

When these CEPA cases go to the jury against public entities, they often hit for large verdicts.  It concerns me that public entities often show such little concern for the taxpayers who end up footing the bill for the discriminatory and retaliatory actions of their elected officials.  According to an interview given to the Newark Star Ledger, the Defendant intends to appeal.  Keep watching this space for further developments.

Trial Judge: Thomas J. Walsh, J.S.C.

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Holmes v. Board of Review, 2017 N.J. Super. Unpub. LEXIS 687 (March 21, 2017)

Stealing a grand total of $16.80 over the course of three years of otherwise satisfactory performance can result in the total disqualification from unemployment benefits.  In Holmes v. Board of Review, the Appellate Division made it clear that it is the intent of the employee, not the value of a theft, is the issue for purposes of unemployment disqualification.

Gary Holmes, III worked as a full-time parts manager for AutoZone for over three years. Holmes was questioned during a routine investigation regarding a returned battery that went missing.  During the questioning, Holmes admitted that during the course of his three years of employment he had taken ten bottles of water (valued at $16.80) without paying for them.  He signed a statement admitted that fact specifically.  AutoZone fired him and he applied for unemployment benefits.  He was initially denied for severe misconduct and appealed.

At the Appeal Tribunal, Holmes testified that he had not intended to steal the bottles but merely forgot to pay for them.  He also testified that he had never taken a bottle without permission.  Holmes did not have an attorney for Appeal Tribunal.  The Appeal Tribunal, based upon the signed statement, did not believe Holmes and affirmed the disqualification, as did the Board of Review.  The Appellate Division affirmed.

The Court noted that Holmes had admitted to both “theft of company property” and “repeated violations” of Auto-Zone’s company policy, both of which are examples of severe misconduct under N.J.S.A. 43:21-5(b).  Because the Court found the thefts to be deliberate, the Court agreed that Holmes’ actions were “malicious”.  Noting that $16.80 is “not grand larceny”, the Court nevertheless ruled that there is no de minimis rule and that it is the action and intent that determine whether disqualification is appropriate, not the value of the damage done.

Employees should be aware that even infractions that seem minor can result in both termination and unemployment disqualification if they are done intentionally and with knowledge that the action violates company policy.  This case also provides an important reason why an attorney is so important at all unemployment hearings.  Mr. Holmes testified that he had never taken anything without permission and had never taken anything intentionally.  At an Appeal Tribunal, an attorney can question employer witnesses, and under skillful cross-examination, an experienced attorney may have been able to adduce testimony from the investigator and/or store manager that Mr. Holmes was truthfully testifying that he either had permission or had inadvertently forgotten to pay.  If the Appeal Tribunal had credited such testimony, Mr. Holmes would not have been disqualified at all.

Appellate Judges:  Fisher and Leone

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By Adam Schorr

O’Connor v. Oakhurst Dairy, 2017 U.S. App. LEXIS 4392 (1st Cir. March 3, 2017)

I have long been a staunch supporter of the Oxford comma and believe that it should always be used. After the First Circuit decision in O’Connor v. Oakhurst Dairy, I get the distinct feeling that employers will start to agree with me on this.

What is the Oxford comma (lesser known as the serial comma)? Quite simply, it is the comma between the second to last item in a list and the last item of the list. In the sentence “I write letters, briefs, and case of the week articles”, it is the comma after briefs. In journalism, it is common to omit this comma, and in other fields, its use is mixed.

O’Connor and other employees brought suit against Oakhurst Dairy claiming they were not paid overtime benefits they were entitled to. In question was an exemption clause in the statute, stating that “[t]he canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” various food items were not covered. Specifically, the Plaintiffs contended that “packing for” referred to both shipment and distribution, while the Defendants contended that “packing for shipment” and “distribution” were two separate items. The Plaintiffs distributed the food items, so the case turned on whether the exemption was for “packing for distribution” or for “distribution” itself was the crux of the case.

The District Court ruled in favor of the Defendants, finding that their interpretation of the statute was better than the Plaintiffs’ interpretation. The First Circuit acknowledged that there was but one non-binding decision on the matter and set out to interpret it themselves. If you are a grammar nerd, I highly suggest reading the full opinion, as this is a difficult one to summarize down to a few lines.

In essence, the First Circuit first examines the Defendants’ arguments, noting that Maine’s statute construction manual indicates that the comma should be omitted and that interpreting the “or” any other way would leave the list without a conjunction. Then, they examine the Plaintiffs’ arguments, noting that the manual has exceptions and that statutory language sometimes omits conjunction. They note that the legislative history provides no helpful guidance. Given this, the First Circuit than does what most people would do: throw up their hands and say “we have no idea”.

In the end, Maine had a default rule of “tie goes to the people the law was intended to help”, or, legally speaking, given ambiguous language, the wage and hour law should be interpreted to provide the most help to employees. The First Circuit therefore adopted the Plaintiffs’ interpretation and reversed the District Court. I agree with both Courts – I think the Defendants’ interpretation is the better of the two, but it is ambiguous, and ambiguity should be interpreted in accordance with the law.

The moral of this story: always use the Oxford comma. Especially if you’re a lawyer or lawmaker. There is no reason not to, and as this case shows, every reason to do so.

District Judge: John H. Rich, III.

Circuit Judges: Lynch, Lipez, and Barron.

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Acevedo v. Flightsafety International, Inc., __ N.J. Super. __; 2017 N.J. Super. LEXIS 29 (N.J. Appellate Division, March 6, 2017)

The New Jersey Appellate Division, in a published opinion, made it clear this week that unemployment benefits may not be deducted from the back pay portion of a discrimination verdict.  Although the law has been established for a long time, this has been an issue that continually confuses trial judges because in civil cases other than discrimination, unemployment benefits are routinely deducted.  This published case will put to rest any confusion in the future.

Co-Plaintiff Rex Fornaro (Ms. Acevedo settled before trial) filed a disability discrimination and retaliation claim against his employer, a flight training school.   He prevailed at trial and was awarded back pay of about $83,000.  The trial judge reduced the award by $14,000, representing 50% of the unemployment compensation that Mr. Fornaro received.  There were other issues addressed in an unpublished opinion relating to attorney’s fees and other claimed trial errors, but the published opinion only focused on the unemployment issue, where the Appellate Division reversed and reinstated the full back pay.

New Jersey has a collateral source statute, N.J.S.A. 2A:15-97, which requires that income from collateral sources like unemployment be deducted from back pay in civil cases.  But cases under the New Jersey Law Against Discrimination have long been an exception.  The Appellate Division, in this opinion affirmed that discrimination Plaintiffs are exempt from the Collateral Source Rule.

The reasoning for this exception is that the NJLAD is remedial legislation intended to eradicate the cancer of discrimination, protect employees, and deter employers from engaging in discriminatory practices.  The Appellate Division stated that “shifting the benefit of unemployment compensation from the wronged employee to the discriminating employer does not serve the LAD’s deterrent purpose.”

The Court pointed to Model Civil Jury Instruction 2.33A(8), which since 1993 has provided that unemployment compensation should not be deducted, but the cases footnoted only include a Law Division case from 1974 and a Third Circuit case from 1983.  So now we have a brand new published New Jersey Appellate case that should permanently resolve this confusion.

The trial judge in this case will be retiring on May 4, 2017.  The entire plaintiff employment Bar wishes her a happy and peaceful retirement.

Trial Judge: Francine A. Schott, J.S.C.
Appellate Judges: Reisner, Koblitz and Sumners

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Ali v. Don’s BFF, LLC , 2017 N.J. Super. Unpub. LEXIS 516 (March 3, 2017)

This is the sad story of Mohamed Ali – not Muhammed Ali, who was, IMHO, the greatest of all time and my personal hero.  Poor Mohamed proved his case of sexual harassment in a New Jersey Court and ended up with a $1,000 verdict, and he may not even collect that paltry amount.  So despite being right and proving his case, poor Mohamed is down for the 10 count.  I went to the Appellate Division to get all the briefs and appendices, and I want to take this opportunity to point out 10 things that Mohamed did wrong that led to this TKO.

Mistake #1 – Failure to document complaints. Mohamed did not document his complaints of discrimination.  In his case it was not easy to do so since he was working for a one owner restaurant without an HR department.  The harrasser, who repeatedly grabbed his backside and made Arabic epithets about his mother’s private parts, was his boss and direct supervisor.  Nevertheless, the employee needs to complain about such abuse, and should do so either by e-mail or by recorded conversation (perfectly legal in NJ and easy to do on a smart phone).

Mistake #2 – Mohamed quit his job.  Rule number 1 for harassed employees – DO NOT QUIT!  There is always a better option.  When we consult with people like Mohamed we discuss options such as writing a demand letter to try to negotiate a fair severance.  If the harassment is causing true emotional distress, temporary disability is sometimes a good option while a settlement is negotiated.  When an employee quits, it removes all leverage, lessens damages, and may even disqualify the employee from unemployment.

Mistake #3 – Mohamed did not retain a lawyer.  An employment attorney knows exactly what to do with a case like this.  Mohamed was very angry and very principled, but I have read his papers and, well, Mohamed is not a very good lawyer.  Representing yourself is the most dangerous mistake an injured employee can make.

Mistake #4 – Mohamed decided to file with the New Jersey Division on Civil Rights (DCR).  This State agency does not do an adequate job of properly investigating claims.  They are underfunded and understaffed. Furthermore, the statute of limitations can run out while they are investigating.  Critically, the law requires the DCR to make a finding.  A finding of “no probable cause” is a determination that can only be appealed to the Superior Court, Appellate Division.

Mistake #5 – Mohamed went to Office of Administrative Law (OAL).  New Jersey law provides that, if the DCR has not rendered a decision within 180 days, the employee has the right to transfer the matter to the Office of Administrative Law for a contested hearing.  If Mohammed had permitted the DCR to complete the investigation and proved probable cause, the attorney general would have represented him at the OAL.  Because Mohamed withdrew early, he was denied a government attorney and had to represent himself.

Mistake #6 – Mohamed did not file in Superior Court.  There really is no excuse for going to the DCR or the OAL instead of filing in Superior Court.  In Superior Court there is the right to a jury trial, the ability to collect punitive damages, the ability to be heard by an experienced Superior Court judge, and the verdicts are generally much higher.  The OAL has a history of low verdicts, and even those verdicts can then be lowered more by the agency.

Mistake #7 – Mohamed did not know how to try a case.  He won a verdict only because the employer (who could not afford an attorney) did not even show up.  Mohamed did a very poor job of explaining his emotional distress and without a bad guy to cross-examine, his presentation completely lacked emotional appeal.

Mistake #8 – Mohamed sued a broke company.  The Court would not permit Mohamed’s employer to self-represent because it was an LLC.  The individual defendant did not show up.  Neither could afford an attorney.  No doubt the inability to pay factored into the OAL judge’s decision to award $1,000 to Mohamed and a fine of $1,000 against the employer.  Mohamed will now have to try to collect that $1,000 from an entity that may very well be judgment proof.

Mistake #9 – Mohamed severely overreached.  One of the biggest mistakes that employees make is overestimating the value of a case.  An experienced attorney can help an employee put a proper value on a case and having a rational expectation is critically important in litigation.  After the verdict, Mohamed filed his list of exceptions, as permitted, with the Division on Civil Rights.  If Mohamed had argued that he should have been award $5,000 or $10,000, the DCR might well have increased his award.  But Mohamed demanded $2 million, which was a completely ridiculous and indefensible overreach.  Given Mohamed’s absurd demand, the DCR affirmed the award.

Mistake #10 – Pro se appeal.  The Superior Court Appellate Division is a complicated place.  Writing a proper brief requires experience and skill that untrained citizens simply do not have.  He did not cite verdicts from other cases or cite precedent as an experienced employment attorney would do.  He did not request oral argument.  On the other side, the DCR was represented by the Attorney General, who now took sides against Mohamed.  So Mohamed trusted the DCR to pursue his claim and instead they litigated against him.  It was a mismatch, and Mohamed lost his appeal.

And that is how you win a match and end up down for the count.

Appellate Judges: Alvarez and Accurso

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