Lawyers.com Blog

Time Worked From Home Counts Toward FMLA's Minimum Hour Eligibility Requirement If Employer Knew or Had Reason to Know Employee Worked From Home

nospam@example.com (Jonathan I. Nirenberg) — Tue, 17 Nov 2009 09:42:52 -0500

On September 23, 2009, in Erdman v. Nationwide Insurance Company, the United States Court of Appeals for the Third Circuit discussed when an employee’s time working from home counts toward the 1,250 minimum hours required for an employee to be covered by the Family & Medical Leave Act (FMLA). The Third Circuit is the federal appellate court that includes New Jersey. The FMLA is a federal employment law that permits qualified employees to take time off from work to care for their own serious medical conditions, the serious medical conditions of members of their immediate family, for pregnancy, childbirth, adoption, or foster care, or to care for a new child.

The employee in that case, Brenda Erdman, has a daughter with Downs Syndrome. In 1998, Ms. Erdman’s employer, Nationwide Insurance Company, permitted her to work part time so she could care for her daughter. Ms. Erdman worked part time for four years, when she switched to a four day work week.

Ms. Erdman worked nearly 1,300 hours for Nationwide Insurance during the year at issue, including more than 100 hours that she worked from home. She had previously worked from home for Nationwide for many years. Nationwide consistently either paid her for working those hours, or allowed her to use the time as "comp" time.

In 2002, Ms. Erdman’s supervisor instructed her to "put in the hours that . . . you’re supposed to put in and nothing more than that." Although Ms. Erdman asked if she was still permitted to work extra hours to accrue comp time, her supervisor did not respond.

The lower court concluded that Nationwide did not have sufficient notice that Ms. Erdman continued to work from home after her supervisor told her she could only put in the hours she was supposed to work. As a result, it dismissed her case. However, the Third Circuit disagreed.

The Third Circuit recognized that hours worked off-site can count toward the FMLA’s minimum hour requirement only if the employer "knows or has reason to believe" the employee is working those hours. As a result, the relevant question is whether a jury reasonably can conclude that Nationwide knew or should have know that Ms. Erdman continued to work from home after her supervisor’s instruction.

The Third Circuit ruled that a jury can conclude that Nationwide had sufficient notice that Ms. Erdman was continuing to work from home. Specifically, a jury can believe her supervisor’s statement merely meant that she could no longer be paid for working extra hours at home, without prohibiting her from continuing to work from home to accrue comp time. In other words, her supervisor’s comment could mean the company wanted to eliminate overtime pay, or wanted to ensure uniform salaries, without prohibiting Ms. Erdman from working at home to make up for time she missed. Accordingly, the Court reinstated Ms. Erdman’s case and sent it back to the District Court so it can proceed to a trial.

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EEOC Issues New Guidance to Employees Regarding Waivers of Discrimination Claims in Severance Agreements

nospam@example.com (Jonathan I. Nirenberg) — Fri, 21 Aug 2009 16:25:00 -0400

On July 15, 2009, the United States Equal Employment Opportunity Commission (EEOC) issued guidance to employees who are offered severance agreements that include releases of employment law claims after they have been laid off or otherwise fired. More specifically, the EEOC’s guidance answers questions employees might have regarding severance agreements that require them to waive their rights under employment laws such as Title VII of the Civil Rights Act (Title VII), which prohibits gender discrimination, race discrimination, national origin discrimination, and religious discrimination; the Americans with Disabilities Act (ADA), which prohibits disability discrimination; and the Age Discrimination in Employment Act (ADEA),which prohibits age discrimination. While it is focused on federal claims, the guidance is also relevant to claims under state laws, such as the New Jersey Law Against Discrimination (LAD), the New Jersey Conscientious Employee Protection Act (CEPA), the New Jersey Civil Rights Act (NJCRA), and the New York Human Rights Law (NYHRL).

A significant portion of the EEOC’s guidance discusses what is required for a waiver in a severance agreement to be valid. Specifically, waivers (1) must be knowing and voluntary, (2) must offer the employee some consideration, meaning a benefit the employee would not otherwise receive, and (3) must comply with applicable state and federal laws.

The EEOC notes that, to determine whether an employee knowingly and voluntarily waived the right to sue for employment law claims like discrimination, retaliation, or harassment, courts generally consider factors such as:

Whether the severance agreement is clear and specific enough that the employee understands it, considering his or her level of education and experience;
Whether the severance agreement was the result of fraud, duress, undue influence, or other improper conduct by the employer;
Whether the employee had sufficient time to read and consider the severance offer;
Whether the employee consulted with an attorney, or the employer encouraged the employee to consult with an attorney, before accepting the severance offer; and
Whether the employee had input into negotiating the terms of the severance agreement.

The EEOC guidance also discusses the special minimum requirements for a release to waive age discrimination claims under the ADEA. Those requirements come from a 1990 amendment to the ADEA, called the Older Workers Benefit Protection Act (OWBPA). The OWBPA contains seven requirements for a valid waiver of federal age discrimination claims:

The waiver must be written clearly, so the employee can understand it;
The waiver must specifically refer to claims under the ADEA;
The waiver must advise the employee to consult a lawyer before accepting it;
The waiver must give the employee at least 21 days to consider the severance offer;
The waiver must provide the employee at least seven days to revoke the agreement after he or she signs it;
The employee must not be required to waive the right to pursue any violations of his or her future rights under the ADEA, meaning that the employee cannot waive any violations of the ADEA that occure after the effective date of the waiver; and
The employee must receive additional consideration, typically severance pay or benefits, that he or she would not be entitled to receive otherwise.

A waiver under the ADEA is also unenforceable if the employee signs it as the result of the employer’s fraud, undue influence, or other improper conduct, or if the employee signed the release because it contains a material mistake, omission, or misstatement.

The EEOC guidance discusses additional requirements of the OWBPA that apply to mass layoffs, reductions in force, early retirement incentive plans, and other employer exit incentive programs and termination programs. For example, employers must give employees at least 45 days, rather than 21 days, to consider a waiver of the right to sue for age discrimination under the ADEA if they are terminated as part of a mass layoff or reduction in force. Employers also must provide employees who are impacted by a mass layoff or reduction in force with a list of the job titles and the ages of all individuals in their "decisional unit" who were eligible for, selected for, and not selected for, inclusion in the mass layoff or reduction in force. Depending on the circumstances, the relevant decisional unit can be the entire company, a division, a department, the employees reporting to a particular manager, or the employees in a particular job classification.

The EEOC guidelines contain a checklist of things employees should do if they are offered a severance agreement, including that they should:

Make sure they understand the severance agreement;
Check for deadlines in the agreement, and act promptly;
Consider having an attorney review the severance offer; and
Make sure they understand what they are giving up in exchange for the severance benefits.

Although not specifically discussed by the EEOC, it is often possible for an employee who has been laid off to negotiate additional severance benefits, or to otherwise improve the terms of their severance offer. You should consider meeting with an experienced employment lawyer in your area if you have been laid off or otherwise fired and are hoping to enhance your severance package, or if you need help understanding the severance agreement and the important rights you may be giving up if you sign it.

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Employees' Private Communications With Lawyers on Company Computers Protected By Attorney-Client Privilege

nospam@example.com (Jonathan I. Nirenberg) — Wed, 15 Jul 2009 15:12:54 -0400

Earlier this year, in Stengart v. Loving Care Agency, Inc., New Jersey’s Appellate Division ruled that confidential emails employees send to their lawyers using company computers are protected by the attorney-client privilege.

Under the attorney-client privilege, communications made in confidence between lawyers and their clients in the course of their professional relationship are privileged. The primary reason for the attorney-client privilege is to encourage clients to engage in a full and free disclosure of information with their lawyers.

In Stengart, employee Marina Stengart was still working for Loving Care Agency, Inc., when she emailed an employment lawyer about her potential discrimination case. She sent emails to her attorney, using her private Yahoo email address, from her company-issued laptop.

After Ms. Stengart left Loving Care and filed a lawsuit, the company created a forensic image of her computer’s hard drive. The lawyers representing Loving Care discovered numerous communications between Ms. Stengart and her lawyers in her computer’s Internet browsing history. When Ms. Stengart’s lawyers learned that Loving Care had copies of many of her emails to them, she asserted the attorney-client privilege and demanded that Loving Care return them to her. She also sought to disqualify Loving Care’s lawyers since they had unfair access to her privileged communications with her lawyers.

Prior to the appeal, based on the company’s electronic communications policy, the trial court ruled that Ms. Stengart did not have a reasonable expectation of privacy when she used her company laptop to communicate with her lawyers. Accordingly, it found that the emails were not protected by the attorney-client privilege.

However, the Appellate Division disagreed. It ruled that it was unclear whether the company’s electronic communications policy prohibit Ms. Stengart from using her company laptop to email her lawyers, since it expressly permitted some personal use.

More importantly, the appellate court also found that, even if Ms. Stengart had violated the company’s email policy, the attorney-client privilege outweighed her employer’s interest in enforcing its electronic communications policy. It noted that while employee handbooks can create binding employment contracts, New Jersey courts will not enforce unreasonable workplace rules and policies. More specifically, courts will only enforce employment policies if they advance the "legitimate business interests of the employer." Accordingly, the Appellate Division rejected what it described as "the employer’s claimed right to rummage through and retain the employee’s emails to her attorney."

The Court noted that people conduct many personal and confidential transactions via the Internet, including accessing private medical records, viewing bank account data and telephone records, filing tax returns, and emailing attorneys about confidential matters. It indicated that those individuals have a reasonable expectation that their private communications will remain private, even if they review the private information on a company computer. However, the Court made it clear that companies are entitled to monitor whether their employees are performing non-business activities that distract them from their work, and can discipline employees who engage in personal matters during working hours.

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Inadequate Sexual Harassment Investigation Can Help Support Discrimination Claim By Alleged Harasser

nospam@example.com (Jonathan I. Nirenberg) — Tue, 30 Jun 2009 14:49:47 -0400

On May 22, 2009, in the case of Sassaman v. Gamache, Commissioner, Dutchess County Board of Elections, the United States Court of Appeals for the Second Circuit reinstated the sex discrimination claim of an employee who was forced to resign because another employee accused him of sexual harassment. The Second Circuit is the federal appellate court that covers several states, including New York.

The plaintiff in that case, Carl Thomas Sassaman, worked for the Dutchess County Board of Elections. In March 2005, another Board of Elections employee, Michelle Brant, accused Mr. Sassaman of harassing and stalking her. Mr. Sassaman denied harassing Ms. Brant. He also claimed that she had previously asked him if he was interested in a one-time sexual encounter with her, which he declined.

When Ms. Brant complained about the sexual harassment, the Commissioner of the Board of Election, David Gamache, suggested that she should file a complaint with the Dutchess County Prosecutor’s office. The Prosecutor’s office subsequently found insufficient proof that Mr. Sassaman had enaged in a crime.

However, Mr. Gamache and the Board of Elections conducted virually no sexual harassment investigation of their own. Instead, they immediately suspended Mr. Sassaman without pay. A few weeks later, Mr. Gamache gave Mr. Sassaman the option to resign, or he would be fired. According to Mr. Sassaman, Mr. Gamache told him "I really don’t have any choice, Michelle [Brant] knows a lot of attorneys; I’m afraid she’ll sue me. And besides you probably did what she said you did because you’re male and nobody would believe you anyway." Given the options, Mr. Sassaman resigned.

Mr. Sassaman then filed a discrimination claim, alleging that Mr. Gamache, the Dutchess County Board of Elections, and Dutchess County discriminated against him because of his gender in violation of Title VII of the Civil Rights Acts of 1964. The United States District Court for the Southern District of New York dismissed Mr. Sassaman’s case, concluding he did not have sufficient evidence of sex discrimination to even get to a jury. However, on appeal, the Second Circuit reinstated his case.

The Second Circuit reasoned that a jury could interpret Mr. Gamache’s statement that Mr. Sassaman "probably did what [Ms. Brant] said you did because you’re male," as evidence of gender discrimination. Specifically, a jury could reasonably interpret his statement to mean that Mr. Gamache assumed Mr. Sassaman sexually harassed Ms. Brant based on a discriminatory assumption that men are likely to engage in sexual harassment. Adverse employment decisions based on stereotypes about the behavior of men or women are discriminatory, and violate Title VII.

The Court noted that, in context, the fact that Mr. Gamache terminated Mr. Sassaman’s employment without adequately investigating Ms. Brant’s sexual harassment allegations further support his gender discrimination claim. While Mr. Gamache claims he terminated Mr. Sassaman’s employment because he was afraid Ms. Brant would sue for sexual harassment, a jury might not believe that argument.

However, the Second Circuit was careful to note that an insufficient sexual harassment investigation, on its own, is not enough to prove sex discrimination. Rather, when there is other evidence of discrimination, the lack of a proper investigation potentially can support a discrimination claim. In other words, the Court did not rule that an alleged harasser can sue for discrimination merely because the employer fired him or her without engaging in an adequate investigation. It merely recognized that, in some cases, the employer’s failure to conduct a thorough sexual harassment investigation can further support a discrimination claim.

Over 70 Exception

nospam@example.com (Jonathan I. Nirenberg) — Wed, 24 Jun 2009 16:41:41 -0400

The New Jersey Law Against Discrimination (LAD) prohibits employers from discriminating against employees on the basis of age. Among other things, it prohibits employers from firing, refusing to hire or requiring an employee to retire because of their age.

However, the LAD expressly does not prohibit employers from refusing to hire or promote a person over 70 years old. As a result, someone who is not hired or promoted because they are over seventy years old does not have an age discrimination claim under the LAD.

On April 23, 2009, in Nini v. Mercer County Community College, the New Jersey Appellate Division ruled that this over-seventy exception does not apply to a company’s failure to renew an employment contract. In other words, a company violates the LAD if it decides not to renew an employment contract of an individual who is over 70 years old based on the employee’s age.

The case involves Rose Nini, who worked as an executive assistant for Mercer County Community College (MCCC) from 1979 to June 30, 2005. She worked pursuant to a series of renewable employment contracts. In June 2005, MCCC chose not to renew her contract for an additional three years term. At the time, Ms. Nini was 73 years old.

According to Ms. Nini, she had substantial evidence of age discrimination. For example, during the nearly 25 years before MCCC told her it might not renew her contract, she never received a poor performance review. Her supervisor then made it clear that he thought she should not be working at her age, that other employees her age were considering retiring, and that he thought she should retire too. Several MCCC department heads also discussed "age and incompetence," "dead wood," and made jokes about getting rid of the "oldest employees." Ms. Nini also heard that MCCC’s Human Relations Director said the college needed to "get rid of the old-timers" and "bring in new blood."

In analyzing the LAD’s exception regarding the right not to hire or promote an employee over seventy years old, the Appellate Division stated that the nonrenewal of a contract is the equivalent of a termination, rather than a refusal to hire. Previous New Jersey cases have recognized there is little or no difference between failing to extend or renew an employment contract and a decision to fire an employee. Thus, the Court ruled that the over-seventy exception does not apply to a decision not to renew an employment contract, meaning it violates the LAD if an employer chooses not to renew the contract of an employee because she is over 70 years old. Accordingly, the Court sent the case back to the lower Court so Ms. Nini could further pursue her age discrimination case.

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Employees Working in Other States Can Sue Under New York's Anti-Discrimination Laws

nospam@example.com (Jonathan I. Nirenberg) — Wed, 24 Jun 2009 13:02:47 -0400

If you have been the victim of unlawful discrimination or harassment, you might be able to sue your employer for under New York law even if you never worked in New York. At least according to one New York appellate court, employees can bring discrimination claims under New York’s anti-discrimination law if they are residents of New York or if the company made its discriminatory decision in New York, even if their jobs were out of state. For example, a New York State resident who works in New Jersey or Connecticut can sue his or her employer for discrimination under New York law.

Among other things, the New York Human Rights Law (NYHRL) prohibits employment discrimination and harassment based on an individual’s age, race, creed, color, national origin, sexual orientation, military status, gender, disability, genetic characteristics or marital status. The New York City Human Rights Law (NYCHRL) prohibits discrimination and harassment based on virually all of those categories, as well as discrimination based on gender identity, partnership status, alienage/citizenship status, and status as a victim of domestic violence, stalking or sex offense. Both laws prohibit companies from retaliating against employees who complain about legally prohibited discrimination or harassment.

The NYHRL specifically states that it applies to acts committed outside of New York State if the employee is a resident of New York. Thus, New York residents can sue companies for violating the NYHRL even if they worked in another state.

In addition, under certain circumstances, even non-residents who worked outside of New York can sue their employers under the NYHRL. Likewise, in some situations employees who work outside of New York City can sue their employer’s under the NYCHRL. Specifically, on May 7, 2009, in Hoffman v. Parade Publications, the Appellate Division of the New York Supreme Court ruled that out-of-state residents can sue their employers under the NYHRL or the NHCHRL if the company made the discriminatory decision in New York State or New York City, respectively.

Hoffman involves an employee, Howard Hoffman, who worked for Parade Publications from 1992 until Parade fired him on January 1, 2008. Mr. Hoffman worked for Parade based out of its Atlanta, Georgia office. When Parade fired Mr. Hoffman, he was 62 years old.

On October 2, 2007, while in Atlanta, Mr. Hoffman received a telephone call from Parade’s president and publisher in New York, who told him Parade was closing its Atlanta office, and firing him and his assistant for economic reasons. Mr. Hoffman sued under the NYHRL and the NYCHRL, claiming he was an exceptional employee, the oldest employee in Parade’s newspaper relations group, and that Parade actually fired him because of his age. He also claimed that Parade reassigned his job duties to another employee who was "considerably younger" than him.

The court held that although the NYCHRL is "limited to acts occurring within the boundaries of New York," if the discriminatory employment decision was made in New York, then the discrimination "occurred" in New York. The court further explained that it would be "contrary to the purpose of both the NYHRL and the NYCHRL to leave it to other states to address acts of discrimination that occurred in New York." Accordingly, it allowed Mr. Hoffman’s case to proceed in New York, under New York State and New York City law, because he alleged that Parade made the discriminatory decision to fire him because of his age in New York City. Thus, an employee who has never set foot in New York can potentially sue a company under New York law if the company made an adverse discriminatory decision about the employee in New York.

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Discrimination Against Caregivers

nospam@example.com (Jonathan I. Nirenberg) — Wed, 24 Jun 2009 12:55:49 -0400

Last month, the United States Equal Employment Opportunity Commission (EEOC) published suggested best practices for companies to minimize the chance of violating the rights of employees who are also caregivers. Those suggested practices supplement the guidelines the EEOC issued in 2007 regarding when it is unlawful for an employer to discriminate against an employee who is a caregiver.

Although there is no law in New York or New Jersey which expressly prohibits discrimination against employees because they are caregivers, many state and federal laws provide protection to caregivers under certain circumstances. For example, the New Jersey Law Against Discrimination, the New York Human Right Law, the Family & Medical Leave Act (FMLA), the New Jersey Family Leave Act, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act (ADA) all provide some protection to caregivers.

The EEOC’s 2007 guidelines regarding employees with caregiving responsibilities recognize that, in part due to anti-discrimination laws, women now make up nearly half of the workforce in the United States. In addition, while the role of men as caregivers has substantially increased over the past 50 years, women still disproportionately have the primarily responsibility for caring for children and elderly parents, in-laws, and spouses. As a result, employment practices that disfavor caregivers disproportionately harm women.

The EEOC guidelines also recognize that many women in the work force face a “maternal wall” or “glass ceiling,” largely as a result of their dual roles as employees and caregivers, but also due to other gender stereotyping and discrimination. For example, women are drastically underrepresented in corporate management. Gender discrimination, such as discrimination based on the assumption that women are less dedicated to their jobs because they are more likely to be primary caregivers, violates New York, New Jersey federal anti-discrimination laws.

The EEOC’s guidelines provide many examples of evidence of discrimination against women based on the gender stereotype that they are more likely to be caregivers, including whether the employer (1) only asks female applicants if they are married or have young children (2) makes stereotypical or derogatory comments about pregnant women or working mothers, (3) treats women less favorable soon after it becomes aware they are pregnant, (4) assigns women with caregiving responsibilities to less prestigious or lower-paid jobs, or (5) treats men with caregiving responsibilities less favorably than female caregiving employees.

The guidelines further recognize that it violates the law to make employment decisions based on assumptions and stereotypes about women as caregivers. The EEOC mentions many common negative assumptions and stereotypes about women in the workplace, including the assumption that (1) women are less reliable because of childcare responsibilities, (2) female employees with children do not work long hours and are less committed to their jobs, (3) working mothers do not want to relocate to another city, (4) mothers do not want to work full time, and (5) pregnant women are less committed to their job or are unable to perform certain physical tasks. While employers are not permitted to make employment decisions based on discriminatory assumptions about women, it is generally not unlawful to make decisions based on an employee’s actual job performance or limitations, even if the job performance is unsatisfactory or the limitations are due to the employee’s caregiving responsibilities.

Employers can also violate the law by treating male caregivers worse than female caregivers. For example, it can be unlawful for a company to provide job flexibility to women to accommodate their caregiving responsibilities, but not to offer the same flexibility to similarly situated men.

The EEOC guidelines also discuss unlawful harassment of caregivers, and unlawful retaliation against individuals who oppose discrimination, including the fact that it is impermissible to retaliate against a woman who objects to gender stereotyping. In addition, they discuss the fact that the ADA protects many caregivers since it is unlawful to discriminate against employees due to their relationship or association with a disabled individual, including employees who care for a disabled child, spouse, or parent.

In contrast to the EEOC’s 2007 guidelines, its May 2009 suggested best practices go beyond what is legally required, and instead suggest proactive and progressive corporate policies and practices. According to the EEOC, implementing its suggested policies is likely to enhance productivity, reduce absenteeism, reduce costs, improve employee retention, and otherwise increase profits. The EEOC’s suggest numerous best practices, including:

Training managers about the legal obligations regarding employees with caregiving responsibilities;
Developing, disseminating, and enforcing a strong Equal Employment Opportunity (EEO) policy;
Responding to complaints of discrimination efficiently and effectively;
Protecting against retaliation;
Seeking out job candidates with caregiving responsibilities;
Removing barriers to individuals who are returning to work from leaves of absence;
Encouraging employees to request flexible work arrangements;
Making overtime as family-friendly as possible; and
Reassign job duties employees are unable to perform due to pregnancy or caregiving responsibilities.

If you have experienced discrimination or harassment at work due to your status as a caregiver, you should consider contacting an employment lawyer to discuss your legal rights.

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Courts Can Increase Employment Law Jury Awards to Offset Adverse Tax Consequences of Lump Sum Payment

nospam@example.com (Jonathan I. Nirenberg) — Wed, 17 Jun 2009 14:22:42 -0400

When a plaintiff wins a discrimination lawsuit, the judge or jury is supposed to award economic and emotional distress damages that compensate the employee for his or her losses. In particular, damages for past and future lost wages and benefits are supposed to compensate the employee for the economic losses caused by the illegal discrimination or retaliation. Courts often refer to this as making the employee whole.

However, because higher incomes are taxed at higher rates, an employee who receives an award for lost wages can end up paying much more in taxes than she would have paid if she had not experienced the discrimination or retaliation. In those cases, employees are not made whole for their economic losses. Rather, they end up with less money in their pockets after taxes than if the unlawful employment practice had not occurred.

For example, if an employee making $100,000 per year is illegally fired, a jury might award her $400,000 for past and future lost income. That individual would receive the $400,000 in one lump sum, rather than the $100,000 per year she would have received if she had remained employed. But because the income tax rate increases as your total annual income increases, that individual would pay significantly more in taxes than if she had remained employed and received $100,000 each year. The higher the total lost wages award, the greater the impact of this problem.

Earlier this year, the United States Court of Appeals for the Third Circuit (the federal appellate court that includes New Jersey) addressed this problem. Specifically, the Court recognized that under the appropriate circumstances a judge should increase lost wages damages awards in employment law cases to offset this adverse tax consequence. The Third Circuit ruled that federal district courts can, in their discretion, award an employee "an additional sum of money to compensate for the increased tax burden a back pay award may create." However, the court made it clear it was not suggesting that there should be a presumption that an employee is entitled to additional money to offset this negative tax consequences. Rather, courts have the option to increase a judgment if the employee proves she suffered a negative tax consequence as a result of a lump sum judgment for lost wages and doing so is fair under the circumstances.

The case, Eshelman v. Agere Systems, Inc., involves a disability discrimination lawsuit under the American’s with Disabilities Act (ADA). However, the decision appears to apply to claims of discrimination due to race, color, sex (gender), national origin and religion in violation of Title VII of the Civil Rights Act of 1964 (Title VII), and its reasoning would apply equally to other discrimination and retaliation claims under federal law.

It is unclear why the Court resisted creating a presumption of a tax offset, even though this adverse tax treatment occurs in the vast majority of employment law cases in which the plaintiff is awarded lost wages stemming from more than one year. However, the case is an important step in the right direction, since it allows federal judges to increase judgments to offset this tax penalty, and help make more victims of discrimination and retaliation economically whole.

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The Doctrine of Apparent Authority

nospam@example.com (Jonathan I. Nirenberg) — Wed, 10 Jun 2009 17:56:55 -0400

Imagine a company’s Vice President offered you a great new job. Better yet, he or she offered you a guaranteed written one year employment contract that provides a generous salary and benefits. You signed the contract and started the job, only to be told by someone in the human resources department that the Vice President who hired you did not have the authority to offer you an employment contract, the company has hired someone else for your job, and you are fired. Do you have a legal claim for the company breaching your employment contract?

The answer is not so simple. Generally, the law only holds a company responsible for contracts which are made by someone who actually has the authority to enter into that type of contract on the company’s behalf. For example, if an employee has the authority to hire employees, then the company ordinarily must honor the employment contacts he or she enters into on the company’s behalf. However, if an employee tries to enter into an agreement on behalf of the company without having the authority to do, then the company is generally not bound by that agreement.

But what about when an employee who does not actually have the authority to hire, but reasonably appears to have that authority? The law in many states, including New York and New Jersey, recognizes that companies sometimes should be bound when they allow people to reasonably believe that a corporation’s employee has more authority than he or she actually has. Under the doctrine of "apparent authority," a company potentially can be held legally responsible when it allows others to reasonably believe that someone else had the authority to act on the company’s behalf. The law recognizes that often when a company’s representative has the apparent authority to act on the company’s behalf, the company should be legally bound by the representative’s actions. Accordingly, since you reasonably believed the Vice President had the authority to hire you, at least in some states you would at least have a good argument to enforce your employment contract based on the Vice President’s apparent authority to hire you.

It is important to note that the applicability of the doctrine of apparent authority is very fact specific, and that the law varies from state to state and from case to case. If you believe your employment law rights may have been violated, you should contact an experienced employment lawyer who can evaluate your case and help you to enforce your legal rights.

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Supreme Court Rules it is Unlawful to Retaliate Against Employee For Harassment Complaint During Investigation

nospam@example.com (Jonathan I. Nirenberg) — Wed, 10 Jun 2009 17:53:26 -0400

On January 26, 2009, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 (Title VII) prohibits retaliation against employees who speak out about harassment while answering questions as part of a company’s internal harassment investigation.

The case, Crawford v. Metropolitan Government Ofnashville and Davidson County, involved a sexual harassment investigation by the Metropolitan Government of Nashville and Davidson County, Tennessee (Metro). Metro began investigating rumors of sexual harassment by one of its employee, Gene Hughes. During the investigation, a human resources representative asked an employee, Vicky Crawford, if she had witnessed any inappropriate behavior by Mr. Hughes. In response, Ms. Crawford described several examples of Mr. Hughes sexually harassing conduct toward her. During the investigation, two other Metro employees also indicated that Mr. Hughes had sexually harassed them.

Metro took no disciplinary action against Hughes. However, shortly after it completed the investigation, it fired Ms. Crawford and the two other women who accused Mr. Hughes of sexual harassment. Metro claims it fired Ms. Crawford for embezzlement.

After Metro fired her, Ms. Crawford filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), and eventually sued. She alleged that Metro fired her in retaliation for reporting Mr. Hughes’ sexual harassment.

The United States District Court dismissed Ms. Crawford’s case, finding that her complaints of sexual harassment were not protected by Title VII because she did not initiate the complaint, but rather answered questions during an investigation initiated by her employer. On appeal, the United States Court of Appeals for the Sixth Circuit agreed with the District Court, and affirmed the dismissal of Ms. Crawford’s case. However, the United States Supreme Court reversed that decision, reinstated Ms. Crawford’s case, and sent it back to the District Court for further proceedings.

In its legal analysis, the Supreme Court noted that Title VII includes two provisions that make it unlawful for an employer to retaliate against an employee who reports workplace race or gender discrimination. The first of those provisions, which the Supreme Court referred to as the "opposition clause," makes it unlawful to retaliate against any employee because she opposed any practice that Title VII makes unlawful. The other anti-retaliation provision, which the Supreme Court referred to as the "participation clause," makes it unlawful to retaliate against an employee because she filed a charge of discrimination, or because she testified, assisted, or participated in any investigation, proceeding or hearing pursuant to Title VII.

The Supreme Court based its decision in Crawford on the opposition clause, as opposed to the participation clause. The Court concluded that Ms. Crawford’s statements were made in opposition to Mr. Hughes’ sexual harassment since she expressed her disapproval with his behavior. In support of its position, the Supreme Court relied on an EEOC guideline which states that "‘[w]hen an employee communicates to her employer a belief that the employer has engaged in … a form of employment discrimination, that communication’ virtually always ‘constitutes the employee’s opposition to the activity.’" Notably, the Court indicated that protected opposition would include "refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons," suggesting that the opposition protects employees who verbally or orally object to discrimination, but also to employees who refuse to participate in discriminatory practices.

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President Obama Signs Lilly Ledbetter Fair Pay Act

nospam@example.com (Jonathan I. Nirenberg) — Tue, 03 Feb 2009 17:58:12 -0500

On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009. The Act reverses the United States Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), which requires an employee to bring a federal claim of pay discrimination in violation of the Title VII of the Civil Rights Act of 1964 (Title VII) within 180 days (or in some states, including New York and New Jersey, within 300 days) of the decision that caused the pay disparity.

In the Ledbetter case, the Supreme Court ruled that Lilly Ledbetter was outside of Title VII's filing deadline when she initiated her gender discrimination claim against Goodyear. Ms. Ledbetter was seeking damages because she was paid less than men in comparable positions at the company. The Supreme Court found that her claim was untimely because she did not file a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) within 180 days after the company’s initial discriminatory decision, even though she was still underpaid due to the past discrimination in that her salary remained lower than her male coworkers.

The Ledbetter decision was highly criticized on the basis that employees usually do not know how much their coworkers are paid, making it difficult or impossible for them to determine that they are experiencing discriminating against with respect to their compensation. As a result, employees who have been underpaid because of their race, color, sex (gender), religion, national origin, or disability are unlikely to know about it until long after the 180 (or 300) day EEOC filing deadline.

The Lilly Ledbetter Fair Pay Act amends both Title VII and the Americans with Disabilities Act of 1999 (ADA) by making it a separate violation of the law each time (1) a company adopts a discriminatory compensation decision or practice, (2) a company subjects an employee to a discriminatory compensation decision or practice, or (3) an employee is affected by a discriminatory compensation decision or practice, including each time an employee receives any wages, benefits, or other compensation that is at least in part the result of a discriminatory decision or practice.

Under the law, a new 180 (or 300) day period starts each time an individual is paid less due to his or her race, color, sex (gender), religion, national origin, or disability. In addition, the law permits an employee to prove damages resulting from pay discrimination for up to two years before the employee filed a charge of discrimination with the EEOC. The law is retroactive, applying to all covered discrimination that occurred on or after May 28, 2007, and to all claims that have been pending in the EEOC or in Court since that date.

The United States Senate voted in favor of the the Fair Pay Act on January 22, 2009. The House of Representatives voted in favor of the Act on January 27, 2009, paving the way for the President to sign it into law today.

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Damages in Employment Law Cases

nospam@example.com (Jonathan I. Nirenberg) — Sun, 25 Jan 2009 18:51:08 -0500

Many people who have been fired, demoted, harassed, or experienced some other violation of their employment law rights wonder what kind of damages they can recover if they win their case. Damages in employment law case can vary greatly in different states and under different laws, so it is recommended that you contact an employment lawyer in your area to discuss your specific claims. However, the most common type of damages available in employment law cases in New York and New Jersey include economic damages, emotional distress damages, attorneys fees and costs, punitive damages, and liquidated damages.

Economic Damages

Most employment laws allow for the recovery of economic damages. Economic damages are intended to compensate you for the salary and benefits you lost. They can include your lost salary and the value of your lost benefits like health insurance, a pension, or a 401(k) plan. Economic damages include past losses (called back pay) and future losses (called front pay).

Economic damages are normally available not only in termination cases, but also in cases in which an employee has been illegally suspended without pay, demoted, or denied a promotion. In demotion and promotion cases, economic damages are based on the difference between what you actually earned and what you would have earned if you had been promoted or had not been demoted.

The law requires you to make reasonable efforts to minimize your economic losses. This requirement to “mitigate” your economic damages is discussed in more detail here.

Emotional Distress Damages

Most employment law claims also allow you to recover damages for the emotional harm caused by an adverse employment action taken against you. This includes damages for emotional pain and suffering you experience as a result of being unlawfully harassed, fired, suspended, demoted, or denied a promotion. It also includes damages for psychological harm you suffer as a result of the discrimination or harassment, such as depression, anxiety, Post-Traumatic Stress Disorder (PTSD), difficulty sleeping, weight loss, weight gain, difficulty concentrating, headaches, or other physical pain.

Attorney Fees and Costs

Most employment law claims also permit an employee to recover reasonable attorney’s fees and the costs of the lawsuit. However, it is important to understand that the attorney’s fees are not necessarily based on what you paid your lawyer. Rather, they are based on your lawyer’s reasonable hourly billing rate and the time he or she spent on your case.

Punitive Damages

In some employment law cases, you may be able to recover punitive damages. Unlike economic and emotional distress damages, punitive damages are not meant to compensate you for the harm you suffered. Instead, they are meant to punish the company or the individuals who discriminated against you, retaliated against you, harassed you, or otherwise violated your employment law rights.

Punitive damages are only recoverable in a limited number of cases. Generally, you have to prove that the conduct toward you was not just unlawful, but also “especially egregious,” and that the company’s upper management participated in the conduct toward you.

Liquidated Damages

A few laws, including the Family & Medical Leave Act (FMLA), the Age Discrimination in Employment Act (ADEA), and the Fair Labor and Standards Act (FLSA) provide for liquidated damages instead of punitive damages. Liquidated damages are double damages. Under these statutes, you can recover liquidated damages if the unlawful conduct was “willful,” meaning that your employer either knew its conduct violated the law or acted in reckless disregard for your legal rights.

Conclusion

The damages you can recover in an employment law case depend on which law applies and the specific facts of your case. Accordingly, if you want to know what damages you can recover if you win your employment law case, you should contact an employment lawyer in your state.

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New Jersey Supreme Court Expands Claim of Wrongful Discharge in Violation of Public Policy

nospam@example.com (Jonathan I. Nirenberg) — Sun, 25 Jan 2009 18:38:10 -0500

On December 16, 2008, in the case of Tartaglia v. UBS PaineWebber, the New Jersey Supreme Court expanded the scope of the claim of wrongful discharge in violation of public policy.

Before explaining the significance of the Tartaglia decision, it is important to understand the claim of wrongful discharge in violation of public policy. The New Jersey Supreme Court first recognized that claim in 1980, when it ruled that it is unlawful to fire a New Jersey employee in if the termination violates a clear mandate of public policy. Specifically, that prohibits a company from firing an employee for objecting to an illegal corporate policy or practice, or for refusing to engage in an illegal activity. It also prohibits companies from firing an employee for blowing the whistle on, or refusing to engage in, acts that are not illegal but violate a clear mandate of public.

A few years later, in 1986, the New Jersey legislature passed the Conscientious Employee Protection Act (CEPA). CEPA prohibits a broad range of retaliatory employment actions, such as making it unlawful to fire an employee for objecting to or refusing to participate in an activity he or she reasonably believed was fraudulent, criminal, violated the law, or was incompatible with a clear mandate of public policy concerning public health, safety or welfare, or the protection of the environment.

While CEPA is extremely broad, the claim of wrongful discharge in violation of public policy is still important because not all wrongful discharge claims are necessarily covered by CEPA. In addition, employees have at least two years to bring a claim of wrongful discharge, but only one year to bring file a claim under CEPA.

The New Jersey Appellate Division has twice ruled that employees are not protected by the claim of wrongful discharge in violation of public policy if they make their objection to another employee at their company. Both of those cases conclude that employees must blow the whistle to a government agency to be legally protected by that claim.

However, Tartaglia overrules those cases. It concludes that New Jersey employees are protected from being wrongfully discharged in violation of public policy even if they made only internal complaints. However, to be protected an employee’s internal complaint has to have been made to an individual with authority to correct the problem. Accordingly, an objection to a coworker or even to the employee’s immediate supervisor is usually insufficient.

Whistleblower claims and other retaliation claims of wrongful discharge in violation of New Jersey’s public policy can be complicated. If you believe you have experienced unlawful retaliation at work, you should contact an experienced employment lawyer to discuss your employment law rights.

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Frequently Asked Questions Regarding the New Jersey Family Leave Insurance Law

nospam@example.com (Jonathan I. Nirenberg) — Wed, 17 Dec 2008 02:32:39 -0500

Earlier this year, New Jersey became the third state in the country to pass a law entitling employees to be paid during family leaves. New Jersey’s Family Leave Insurance law is set to go into effect in just a few weeks. Since the law is brand new, many employees and employers do not fully understand what the law means or what it requires. This article will answer many of the most frequently asked questions about the New Jersey Family Leave Insurance law.

When Does the Family Leave Insurance Law Go Into Effect?

On January 1, 2009, New Jersey companies will begin withholding taxes from employee salaries to fund family leave insurance benefits. Starting on July 1, 2009, qualified employees will be entitled to receive state insurance benefits during covered family leaves.

Who is Qualified to Receive Family Leave Insurance Benefits?

The New Jersey Family Leave Insurance law applies to all employees who are covered by the New Jersey Unemployment Compensation law. To be qualified for benefits, an employee needs to have worked for at least 20 calendar weeks in New Jersey and either earned at least $143 per week or a total of $7,200 during the 12 months immediately before he or she made a claim for family leave insurance benefits.

For How Many Weeks Can an Employee Receive Family Leave Insurance Benefits?

An employee can receive up to six weeks of family leave insurance benefits during a 12 month period. The 12 month period begins on the first day after the employee’s initial claim for family leave insurance benefits.

How Much Money Will I Receive If I Qualify For Family Leave Insurance Benefits?

An employee’s weekly benefits are normally two-thirds of the employee’s average weekly income over the eight weeks before the family leave, up to a maximum of $546 per week.

How Much is Family Leave Insurance Going to Cost Me?

The cost of Family Leave Insurance is minimal, especially when compared to other taxes. The total withholding for each employee is less than a tenth of a percent of their wages. There is also a maximum annual contribution per person, which will be $26.01 in 2009.

What Types of Leaves Qualify for Family Leave Insurance Benefits?

Leaves to Bond With a Child

A qualified employee can receive family leave insurance benefits during a leave to bond with a child during the first 12 months after a child is born if the employee is the child’s biological parent or the domestic partner or civil union partner of the child’s biological parent. Likewise, a qualified employee who adopts a child can use his or her six weeks of family leave insurance benefits to bond with a child during the first 12 months after the adoption.

An employee can use family leave insurance benefits during an intermittent leave to bond with a newborn or newly adopted child, but to qualify for benefits the employee must take the leave in periods of at least seven days at a time, and the employer must agree to the employee’s intermittent leave schedule.

Leaves to Care for a Family Member with a Serious Health Condition

A qualified employee is entitled to use family leave insurance benefits during a leave to care for his or her immediate family member, meaning a parent, child, spouse, domestic partner, or civil union partner who has a serious health condition. Those benefits can be used for six consecutive weeks, six intermittent weeks, or for 42 intermittent days during the 12 months after the claim.

What Notice Must I Give Before I Can Receive Family Leave Insurance Benefits?

An employee who plans to seek family leave insurance benefits must give his or her employer reasonable advanced notice of the leave. Exactly how much notice is required varies based on the circumstances. For example, an employee who intends to seek benefits during an intermittent family leave must give a minimum of 15 days notice before the leave, and an employee who plans to seek benefits during a leave to bond with a newborn or newly adopted child must give his or her employer thirty days notice before the leave.

Does the Family Leave Insurance Law Entitle Me to Take a Family Leave

No. The New Jersey Family Leave Insurance law only provides monetary benefits. It does not entitle employees to take family leaves. However, many employees are already legally entitled to those rights under the New Jersey Family Leave Act (NJFLA) or the Family and Medical Leave Act (FMLA).

Does the Family Leave Insurance Law Entitle Employees to Return to Their Job?

No. However, some employees are guaranteed to be returned to their job or an equivalent one under the New Jersey Family Leave Act (NJFLA) or the Family and Medical Leave Act (FMLA).

Are There Any Other Limits on an Employee’s Right to Receive Family Leave Insurance Benefits?

Yes. There are many other limits to an employee’s rights to receive family leave insurance benefits. For example, employees ordinarily do not receive family leave insurance benefits during the first seven days of a family leave. In addition, among other limitations, an employee cannot receive family leave insurance benefits:

While receiving disability benefits or paid sick leave;
While the employee is receiving unemployment insurance benefits;
While the employee is receiving full salary or paid time off;
When the employee is working;
Within 14 days of the employee’s last day of work;
While the family member for whom the employee is caring is not under the care or supervision of a health care provider;
While the employee is out of work due to a labor work stoppage, such as a union strike; or
After the employee is fired for gross misconduct related to an act that is a crime under New Jersey law.

Can an Employer Require An Employee to Use Vacation or Sick Time Before Receiving Family Leave Insurance Benefits?

Yes. Employers can require employees to use up to two weeks of paid sick leave, vacation time, or other paid leave time toward their annual family leave insurance benefits entitlement.

The employment lawyers at Resnick Nirenberg & Cash are dedicated to enforcing the employment law and civil rights of employees in New York and New Jersey.

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New Guidelines Under New York's Employee Blood Donation Leave Law

nospam@example.com (Jonathan I. Nirenberg) — Tue, 09 Dec 2008 01:07:13 -0500

The New York Department of Labor recently issued guidelines for employee blood donation leave under New York State Labor Law Section 202-j. That law, which went to effect late last year, requires companies with twenty or more employees to allow employees to take time off to donate blood. Those companies must choose either to allow employees at least one leave of absence of up to 3 hours each year to donate blood (off-premises blood donation leave), or allow employees to donate blood during work hours at least twice a year at a “convenient time and place set by the employer,” such as allowing employees to participate in a blood drive at their place of employment, without having to use accumulated leave time (on-premises blood donation leave).

The New York Department of Labor’s new guidelines provide additional detail regarding the rights and requirements of New York’s blood donation leave law. For example, they indicate that:

Off-Premises Blood Donation Leave:

¿ Employers are not required to pay employees during off-premises blood donation leaves.

¿ The right to take off-premises blood donation leave is based on a calendar year, meaning that covered employers that elect off-premises blood donation leave must permit employees to take at least one such leave during each calendar.

On-Premises Blood Donation Leave:

¿ Employers cannot require employees to use accumulated vacation, personal, sick, or other leave time for on-premises blood donation leave.

¿ The right to take leave is based on a calendar year, meaning that covered employers that elect on-premises blood donation leave must offer employees two on-premises blood donation leaves during each calendar year.

¿ The requirement that on-premises blood donation leave must be at a “convenient time” means during an employees’ normal scheduled work hours.

¿ The requirement that on-premises blood donation leave must be at a “convenient place” means employers cannot require employees to travel an unreasonable distance.

¿ Covered employers must offer an alternative option for employees who are unable to participate in an on-premises blood donation leave, such as when an employee is sick or on vacation during a scheduled company blood drive.

¿ Covered companies must give employees who donate blood at an on-premises blood donation leave enough time off to donate blood, recover (including eating something after donating blood), and return to work.

¿ Covered employers must prominently post notice of any on-premises blood donation leave at least two weeks in advance.

¿ Companies cannot schedule an on-premises blood donation leave when a significant number of employees are out of the office, such as during the last week of December or around other major holidays.

Required Notice of Employees’ Rights:

¿ Employers must notify employees in writing of their right to take blood donation leave in a place that ensures employees will see it, such as by posting the information prominently in a place where employees gather, or including the information with employees’ paychecks or in the employee handbook.

¿ Employers can require employees to give advance notice of when they plan to take a blood donation leave. Ordinarily, employers can require employees to give up to 3 workday’s notice before taking an off-premises blood donation leave, or 2 days notice before an employee participates in an on-premises blood donation leave. However, employers can require up to 10 working days advance notice if necessary because the employee’s position is essential to the company’s operation, and employees can give less than 3 day’s notice if they are donating blood because of an emergency surgery of the employee him or his or her family member.

The employment lawyers at Resnick Nirenberg & Cash are dedicated to enforcing the employment law and civil rights of employees in New York and New Jersey.

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