Gibbons Law Alert
On July 17, 2013, New Jersey Governor Chris Christie signed into law the New Jersey Security and Financial Empowerment Act (NJ SAFE Act). Effective October 1, 2013, the law requires private and public employers with at least 25 employees to provide unpaid leave to any employee who was a victim of domestic violence or whose child, parent, spouse, domestic partner, or civil union partner was a victim of domestic violence.
In a decision clarifying the standards of proof for retaliation claims arising under the Law Against Discrimination (“LAD”) and the Conscientious Employee Protection Act (“CEPA”), the New Jersey Supreme Court held in Battaglia v. UPS that, for purposes of an LAD retaliation claim, a plaintiff need only demonstrate a good faith belief that the complained-of conduct violates the LAD, and need not identify any actual victim of discrimination. As to the fraud-based CEPA claim, the Court held that the plaintiff must have “reasonably believed” that the complained-of activity was fraudulent. Finally, addressing the plaintiff’s emotional distress damages, the Court ruled that claims for future emotional distress must be supported by an expert opinion regarding permanency.
In a victory for employers, the U.S. Supreme Court ruled in University of Texas Southwestern Medical Center v. Nassar, that employees asserting retaliation claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) must establish that the adverse employment action at issue would not have occurred “but for” an improper motive on the employer’s part. This “but for” causation standard, as opposed to the more plaintiff-friendly “motivating factor” causation standard used in Title VII discrimination claims, gives employers a better chance at defeating Title VII retaliation claims, particularly at the summary judgment stage.
At the Gibbons Second Annual Employment & Labor Law Conference last month, one panel discussion focused on the Equal Employment Opportunity Commission’s (“EEOC”) recent activity and enforcement priorities. Among the panelists were Corrado Gigante, Director of the Newark Area Office of the EEOC, and Gibbons Directors, Christine Amalfe, Kelly Ann Bird and Susan Nardone.
The Second Circuit, in a case of first impression, ruled that an employee is not protected against retaliation prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”) for participating in an investigation of sexual harassment conducted by an employer before a charge of discrimination has been filed with the Equal Employment Opportunity Commission (“EEOC”). Although under Title VII, employers are duty-bound to appropriately remedy discrimination and harassment in the workplace uncovered by such investigation, employers in the Second Circuit can breathe a modest sigh of relief that a negative employment action affecting an employee who claims protection under Title VII based on “participating” in an investigation following an internal complaint is not actionable.
In the latest chapter of the ongoing case of Quinlan v. Curtiss-Wright Corporation, the New Jersey Appellate Division has ruled that while an employer, found to have terminated an employee in violation of the New Jersey Law Against Discrimination (“the LAD”), has the burden of persuasion to establish a plaintiff’s failure to mitigate damages with respect to back pay, the employer does not have the burden of persuasion with respect to a plaintiff’s failure to mitigate future losses, including front pay. In reversing a jury award for front pay in the amount of $3,650,318 because of improper jury instructions on the front pay issue, the Appellate Division suggested a framework for proper jury instructions on front pay damages and referred the issue to the Model Civil Jury Charge Committee. The Court also reversed the jury’s punitive damages award of over $4.5 million, concluding that that award was linked to the front pay award. The Court held that a new trial was required on both the front pay issue and on punitive damages.
The Federal Family and Medical Leave Act (“FMLA”), which, among other things, affords eligible employees up to 12 weeks of unpaid leave for the employee’s own serious medical condition and reinstatement to the employee’s former or equivalent position, includes stringent notice obligations for employers. A New Jersey District Court recently reinforced the importance of complying with the statute’s notice requirements. In Antone v. Nobel Learning Communities, Inc., the court denied the defendant employer’s motion to dismiss, rejecting its argument that the employee was not protected by the FMLA when she was terminated more than 12 weeks after she commenced leave because the employer failed to provide the requisite FMLA information to the employee. The Court similarly denied the employer’s motion to dismiss disability retaliation claims based on improper notification required by the FMLA.
Introduction – In a case of particular interest to New Jersey employers, the New Jersey Supreme Court has been asked to review an appellate ruling that an employee who reported violations of law to her superiors was not a “whistle-blower” because her reporting was required as part of her job duties. A decision by the Supreme Court will have a substantial impact on the scope of New Jersey’s whistle-blower statute, the Conscientious Employee Protection Act (“CEPA”) . Factual Background – In White v. Starbucks, plaintiff Kari White was employed as a district manager in Starbucks’ Upper Mid-Atlantic Region, where she was responsible for the overall management of six Starbucks locations including some in New Jersey. According to the job description for plaintiff’s position, she was responsible for, among other things, “ensuring that employees adhere to legal and operational compliance requirements.” Prior to formally assuming her management role, plaintiff participated in a six-week training period, where she received instruction in retail management and compliance with public health laws. She also received and reviewed a manual titled “Starbucks Food Safety, Store Cleanliness and Store Condition Standards.”
On January 11, 2012, the United States Supreme Court for the first time recognized the so-called “ministerial exception” to workplace discrimination laws. In Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, the Court unanimously found that the Establishment and Free Exercise Clauses of the First Amendment bar wrongful termination suits brought on behalf of “ministers” against their churches. While this decision is helpful for religious group employers, including religious schools and places of worship, the Court left open the important question of which employees actually qualify as a “ministers.” Accordingly, the decision may create some confusion for religious group employers going forward.
In our June 15, 2011 post, we reported on Donelson v. DuPont Chambers Works, a case in which two employees alleged they were retaliated against after they raised safety concerns about the employer’s manufacture of a dangerous chemical. The jury rendered a verdict in favor of one employee (Seddon) and against the other (Donelson). On appeal, the New Jersey Supreme Court held that the employer was liable under New Jersey’s Conscientious Employee Protection Act (“CEPA”) for the economic losses of Seddon, who was unable to continue working because of his mental injuries caused by the employer’s retaliatory actions. The Court reversed the decision of the Appellate Division that Seddon could not recover his economic losses because he had not been discharged or constructively discharged from his job. The Supreme Court remanded the case to the Appellate Division to decide the issues of punitive damages and attorneys’ fees.