Case Study: Was Jonathan Martin the Victim of an Unlawful Hostile Work Environment under New Jersey Law?

November 8, 2013

ESPN, Sports Illustrated, Good Morning America and probably even your own Facebook page, have been flooded with varying opinions on the Miami bullying/harassment scandal. This blog entry is written by our New Jersey Employment Lawyers to analyze the facts, as reported, to determine whether a hostile work environment existed that would be in violation of the New Jersey Law Against Discrimination.

For those who have been living under a rock for the week, Miami Dolphins offensive lineman Jonathan Martin left his employment with the Miami Dolphins as a result of, at least in part, constant harassment and bullying directed at him from his teammates. It has been reported that Mr. Martin checked himself into a hospital as a result of suffering from emotional distress caused by the harassment. One teammate in particular, Richie Incognito, has been suspended indefinitely for his role in the harassment and bullying. NFL Commissioner Roger Goodell has appointed the prominent attorney, Ted Wells, to conduct an independent investigation into allegations of harassment and bullying within the Miami Dolphins.

Based upon the allegations that have reported, Mr. Wells' investigation should reveal that Jonathan Martin was subjected to a hostile work environment that would be in violation of New Jersey law. The New Jersey Law Against Discrimination makes it unlawful to discriminate against an employee on the basis of protected characteristics, which include race, color, disability and sexual orientation. In other words, the discrimination must be based upon one of these protected characteristics in order for the harassment to be against the law. In the landmark case of Lehman v. Toy 'R' Us, Inc. 132 N.J. 587 (1993), the New Jersey Supreme Court defined a hostile work environment based upon sexual harassment as discriminatory conduct that a reasonable person of the same sex in the plaintiff's position would consider sufficiently severe or pervasive to alter the conditions of employment and to create an intimidating, hostile, or offensive working environment. The Lehman decision held that New Jersey employers must maintain an effective policy against unlawful harassment/discrimination. An effective policy requires, inter alia, that employers investigate complaints of harassment promptly, thoroughly and completely. All complaints of sexual harassment and other forms of discrimination must be fully investigated.

Since the Lehman decision, New Jersey law has recognized that a hostile work environment is not limited to sexual harassment, but any kind of harassment based upon a protected characteristic, including race, color, disability, sexual orientation, etc. Some New Jersey courts have held that a single comment or incident, if severe enough, can constitute a hostile work environment. see, e.g. Taylor v. Metzger, 152 N.J. 490 (1998) (single use of the phrase "jungle bunny" severe for purposes of establishing liability for racial harassment); Kwiatkowski v. Merrill Lynch, 2008 WL 3875417 (App. Div. 2008)(single use of the phrase "stupid fag" found to be severe for purposes of establishing liability for sexual orientation harassment); Flizack v. Good News Home for Women, Inc., 346 N.J. Super. 150 (App. Div. 2001) (single incident involving touching between members of the same sex sufficient to establish severity for purposes of sexual harassment claim).

The allegations of the harassment and bullying directed at Jonathan Martin are severe and pervasive enough to constitute a hostile work environment based upon Mr. Martin's race. It has been reported that Mr. Incognito left a threatening voice message on Mr. Martin's telephone identifying him as a "half nigger piece of shit". It does not appear that this was an isolated incident. Mr. Martin's attorneys have said that "[b]eyond the well-publicized voice mail with its racial epithet, Jonathan endured a malicious physical attack on him by a teammate, and daily vulgar comments such as the quote at the bottom. These facts are not in dispute."

Some of the post-scandal comments from other Miami Dolphin players actually blame the victim, Mr. Martin, for the situation. These comments will likely be viewed by the investigator as additional evidence of the existence of the discriminatory work environment within the Miami Dolphin workplace. For example, offensive tackle Tyson Clabo said, "I think if you have a problem with somebody -- a legitimate problem with somebody -- you should say, 'I have a problem with this,' and stand up and be a man. I don't think what happened is necessary. I don't know why he's doing this. And the only person who knows why is Jonathan Martin." Miami Dolphin receiver, Brian Hartline, "If you can't take validity from one part of the voice mail, how do you take validity from the whole voice mail? You can't pick and choose what parts count and which parts don't count."

Mr. Clabo and Mr. Hartline's comments are particular disturbing given the fact that Mr. Martin has voluntarily left a high paying job in the NFL and checked actually himself into the hospital for emotional distress. Despite these facts, at least these two of his ex-teammates suggest Mr. Martin has some ulterior motive and that it is somehow Mr. Martin's fault for not speaking up before he quit what a lot of people would consider a dream job. Other Dolphins, like Quarterback Ryan Tannehill, have said that Mr. Martin and Mr. Incognito were good friends. As Mr. Martin's attorney responded to these types of comments, stating, "For the entire season and-a-half he was with the Dolphins, he attempted to befriend the same teammates who subjected him to the abuse with the hope that doing so would end the harassment. This is a textbook reaction of victims of bullying. Despite these efforts, the taunting continued."

Mr. Martin now is unemployed and suffering from potential mental health disabilities as a result of the harassment. It is predicted that one of the remedial measures suggested by the investigator will be that Mr. Clabo, Mr. Hartline, Mr. Tannehill and the rest of the Miami Dolphin organization undergo extensive ant-harassment training so that they better understand the devastating impact that a hostile work environment can have on a victim, even when the victim is 6'5 and 312lbs.

New Jersey Court Finds the Board of Review Again Misapplies Severe Misconduct Standard

September 17, 2013

For the second time this year, the New Jersey Appellate Court has reverse and remanded a Board of Review decision disqualifying a claimant from receiving New Jersey unemployment benefits on the basis of severe misconduct. This is yet another reminder how necessary it is for the New Jersey legislature to enact a clear definition of what constitutes severe misconduct under New Jersey unemployment law.

In 2010, the New Jersey legislature created a new classification of misconduct called severe misconduct. Prior to 2010, there were only two types of misconduct, which were gross misconduct and misconduct (which was changed to simple misconduct with the enactment of severe misconduct). Gross misconduct occurs when an individual is terminated because they committed a crime of the first, second, third or fourth degree under the New Jersey Code of Criminal Justice. Simple misconduct occurs when an individual is terminated because he or she committed an act that is "improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee."

In creating the new classification, the legislature did not define "severe misconduct." Instead, the 2010 amendment sets forth a list of examples of what constitutes severe misconduct, which includes the catch-all example, "where the behavior is malicious and deliberate but is not considered gross misconduct." This "malicious and deliberate" catch-all example is, in fact, a lesser standard than the definition of simple misconduct, which has been the cause of the Department of Labor's confusion and as to how to apply the law for over the last three years.

The issue was finally analyzed by the Appellate Division in the case Silver v. Board of Review, decided in March 2013. In that case, the Appellate Division found that the legislature intended for severe misconduct to include conduct more egregious than simple misconduct. The Appellate Division described the two-prong standard for misconduct as follows: "First, the conduct must be improper, intentional, connected with the work, malicious, and within the employee's control. Second, the conduct must also be either a deliberate violation of the employer's rules or a disregard of the standards of behavior which the employer as the right to expect." Silver, supra, 430 N.J.Super. at 53.

Despite the guidance provided by the Appellate Division in Silver, the misinterpretation of severe misconduct continues.

In the case Tarnowski v. Board of Review, decided September 9, 2013, the Board of Review originally found the claimant disqualified to receive unemployment benefits without first applying the two-prong test set forth in Silver. The claimant in Tarnowski was terminated while he was on an emergency leave of absence from work as a result of receiving a call informing him that his cousin in South Carolina was on life support. The claimant had previous attendance problems, and alleged that he was unable to get in contact with anyone from his company for the week during his leave. The Board of Review found that, based upon these facts, the claimant had been terminated for severe misconduct. In reversing the Board of Review's decision, the Appellate Division noted that the Board of Review did not consider the threshold issue of whether the claimant's actions were intentional, malicious or deliberate. As a result, the decision was reverse and the case was remanded.

As we have previously mentioned in this employment law blog, there is a bill pending that would amend the New Jersey Unemployment law to include clear definitions for both simple misconduct and severe misconduct. Until this bill or a similar bill is passed, the Tarnowski decision reminds all claimants, employers and unemployment examiners to follow the standard articulated in Silver in determining whether a claimant was terminated for severe misconduct.

Proposed Bill Limits New Jersey Employers' Ability to Restrain Ex-Employees Based on Unemployment Benefits Eligibility

August 16, 2013

A new bill has been introduced to the New Jersey legislature that would invalidate any contract not to compete, not to disclose and/or not to solicit between employers and former employees if it is determined that the employee is eligible for unemployment benefits. The bill [A-3970] if passed, would not apply to any contract not to compete, not to disclose and/or not to solicit, that was in effect prior to when the bill is enacted.

The current law in New Jersey allows employers to enforce an agreement not to compete, not to disclose and/or not to solicit if the agreement protects a legitimate interest of the employer. Courts have held that, in certain circumstances, employers have a legitimate interest in protecting things such as trade secrets, confidential business information and customer relationships. In order to enforce a restrictive covenant, the terms of the not to compete, not to disclose and/or not to solicit clause must be reasonable, not impose an undue hardship on the employee and not be injurious to the public. Courts will not enforce agreements not to compete, not to disclose and/or not to solicit if the restriction is unreasonable. New Jersey courts have repeatedly held that employers do not have a legitimate interest in restricting competition. This is because New Jersey has a strong public policy affording individuals the right to pursue one's profession and livelihood. When determining whether a restrictive covenant is enforceable, New Jersey courts will analyze the specific facts and circumstances of the employee's former employment and new employment, along with the specific terms of the restrictive covenant.

If A-3970 becomes law, an employee would be relieved from any contractual obligation not to compete, not to disclose and/or not to solicit if they are found to be eligible for unemployment benefits. An employee is eligible for unemployment benefits if they become unemployed due to not fault of their own. Most disqualifications for unemployment benefits are because the employee either left work voluntarily without good cause attributable to the work or was involuntarily terminated for committing an act of misconduct. The three types of misconduct are gross misconduct, simple misconduct and severe misconduct. Gross misconduct is when an employee is terminated because they committed a crime of the first, second, third or fourth degree under the New Jersey Code of Criminal Justice. Simple misconduct occurs when an employee is terminated because of improper, intentional, connected with one's work, malicious and within the applicant's control and is either a deliberate violation of his or her employer's rules or a disregard to standards of behavior that the employer has the right to expect of the applicant. There currently is no statutory definition for severe misconduct, but there is a bill pending to correct this oversight by the legislature. The Appellate Division has interpreted severe misconduct to be a gap-filler between simple misconduct and gross misconduct.

The passing of this bill would undoubtedly be a huge victory for New Jersey employees. It would also become much more common for employers to challenge its former employees' claims for unemployment benefits. All New Jersey employers, employees and employment attorneys will need to stay tuned to see if this bill becomes law.

What constitutes "Severe Misconduct" under New Jersey Unemployment Law?

July 31, 2013

In 2010, the New Jersey legislature amended New Jersey Unemployment Benefits law to include a new basis for disqualification of benefits called "severe misconduct". Prior to the change in law, a claimant could be denied from receiving unemployment benefits if he or she was terminated for "misconduct" or "gross misconduct." Misconduct is defined by the regulations as an act that is "improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee. Gross misconduct is defined by law as a termination caused by the claimant as a committing a crime of the first, second, third or fourth degree under the New Jersey Code of Criminal Justice.

While adding "severe misconduct" as a new basis for unemployment benefits disqualification, the Legislature did not define what "severe misconduct" means, and instead set forth a non-exclusive list of examples of what could be severe misconduct. These examples include "repeated violations of an employer's rule or policy; repeated lateness or absences after the applicant receives a written warning from their employer; falsification of records; physical assault or threats that do not constitute gross misconduct; misuse of benefits or sick time; abuse of leave; theft of company property; excessive use of drugs/alcohol on the job; theft of time; or where the behavior is malicious and deliberate but is not considered gross misconduct.
Since the amendment to the unemployment law, our New Jersey unemployment lawyers have seen far too many cases in which the lack of a clear definition of severe misconduct has resulted in an unjust and unfair result for our clients. A lot of confusion for Appeal Tribunal examiners stems from the fact that last statutory example of severe misconduct (where the behavior is malicious and deliberate but is not considered gross misconduct) is in fact a lesser standard than the regulations definition of misconduct.

For approximately three (3) years, no New Jersey court wrote any decisions concerning the change in law. However, finally, in the case Silver v. Board of Review, decided March 21, 2013, the Appellate Division reviewed and analyzed the change in unemployment benefits law and provided some guidance as to the applicability of the new law, including the difference between misconduct and severe misconduct. In acknowledging that there is no definition regarding "severe misconduct" in the statute, the Appellate Division in Silver stated "it seems to us fundamental that the term "misconduct," should have the same meaning throughout N.J.S.A. 43:21-5(b) and its implementing regulation. The Appellate Division further stated:

Two examples of severe misconduct listed in the 2010 amendment describe, if read literally, conduct that would not necessarily be deliberate, intentional, or malicious ("repeated violations of an employer's rule or policy," and "repeated lateness or absences after a written warning"). However, light of the history we have described, it is obvious that the Governor and Legislature intended to create severe misconduct as a gap-filler between simple misconduct and gross misconduct. It would make no sense to allow for conduct with a lower level of culpability (such as mere inadvertence or negligence) to qualify as severe misconduct and carry with it a harsher sanction than simple misconduct. Such a result would be absurd and clearly contrary to the legislative intent...

In Silver, the Appellate Division reversed the Board of Review's decision disqualifying the claimant Ms. Silver for "severe misconduct." Although Silver decision has provided the Department of Labor and all unemployment claimants more guidance concerning the meaning of "severe misconduct", there still remains no clear definition of "severe misconduct." Fortunately, there is a bill pending (A1874) that would amend N.J.S.A. 43:21-5 of the New Jersey Unemployment law to include clear definitions for both simple misconduct and severe misconduct. All New Jersey citizens are encouraged to contact their state representatives to assure this bill is passed.

Appellate Division Remands Sexual Orientation Discrimination Case Back for Trial

May 20, 2013

The New Jersey Appellate Division recently reversed a trial court's decision dismissing an employee's claims for sexual orientation discrimination under the New Jersey Law Against Discrimination. In remanding the case for trial, the Appellate Division found that the school employer's motivation for forcing the employee teacher to resign is a question of fact for the jury to decide at trial.

In the case, Savoie v. The Lawrenceville School, Michael S. Cary and Catherine Boczkowski, Mr. Savoie, a homosexual, was employed as a teacher at The Lawrenceville School in 1982 until June 2003. During his approximate twenty (20) year career, Mr. Savoie received many awards and even held the position of Department Chair at one point. In 1991, Mr. Savoie's domestic partner, Richard Bierman, moved into his on-campus housing with him. At this point, the two of them began an openly gay lifestyle. Thereafter, Mr. Bierman began perceiving that he was being discriminated against by three male faculty members and one female administrator. For example, Mr. Bierman, testified that these individuals were "very nasty" to him and the administrator told him that "[she] did not approve of [their] lifestyle."

In June, 2002, the school's grounds crew entered Mr. Savoie and Mr. Bierman's on-campus housing to repair a water main break outside the home. Because it was emergent, the grounds crew entered the house despite neither Mr. Savoie nor Mr. Bierman being home. When grounds crew entered the house, they discovered certain sexually explicit objects in the basement, such as four pieces of apparatus hanging from the ceiling on chains, videotapes, a computer of the shelf, a tripod without a camera and KY brand lotion. A year later, in June 2003, the new Buildings and Grounds Director began replacing old condensing units. Two employees of the ground crew advised that they were uncomfortable about returning to the home as a result of what they saw the previous year. Ultimately, one of the employees went in the house and reported that he saw similar sexual objects that he had seen the year prior.

The school's trustees began investigating whether something egregious may be occurring in Mr. Savoie and Mr. Bierman's on-campus house. During questioning, Mr. Savoie acknowledged that he and his partner had sexual relations in the basement, owned a camera and had taken sexual images, but emphatically denied that any students or other faculty members had participated in any sexual activity. When asked whether he sent the pictures "out there", Mr. Savoie did not answer because he did not know what was meant by "out there". The school ultimately determined that although Mr. Savoie living with his partner on-campus was not a violation of school code, it was a clear violation for a faculty member to send explicit messages or images over the internet. Therefore, Defendants determined that they could no longer employ Plaintiff and he was forced to resign on June 6, 2003.

The trial court granted Defendants' Summary Judgment based on the notion that the school "...had good faith belief void of ill will towards homosexuality at the moment of his confrontation with Mr. Savoie that the reports were credible, that the basement served as a photograph or film studio for sexual activity and there were internet transmissions of that activity." The trial court further noted that Mr. Savoie did not produce enough evidence that school's actions were specifically based on discrimination. Mr. Savoie and his New Jersey employment attorney appealed the trial court's decision.

The Appellate Division reversed the trial court's decision dismissing Mr. Savoie's claims of sexual orientation discrimination. The Appellate Division held that the school's proffered reason for forcing Mr. Savoie to resign (i.e. that they believed he was sending sexually explicit images over the Internet) was not a legitimate non-discriminatory business reason as a matter of law and instead, an issue for the jury to decide. As such, the employment discrimination case was remanded for trial.

Did ex-Rutgers Basketball Coach Mike Rice Create an Illegal Hostile Work Environment in Violation of the New Jersey Law Against Discrimination?

April 4, 2013

Rutgers University terminated its basketball coach in the wake of ESPN's broadcast of a videotape showing him physically and verbally abusing players during practice. Public opinion seems nearly unanimous that Mike Rice's conduct warranted his termination, but the question remains did he create an unlawful hostile work environment under New Jersey Law Against Discrimination?

New Jersey has some of the strictest anti-discrimination and anti-harassment laws in the United States. Most notably, New Jersey's Law Against Discrimination outlaws unlawful employment discrimination against any person on the basis of protected characteristics, which includes sex, sexual orientation, national origin and others. In 2007, the New Jersey Supreme Court in a case called L.W. v. Toms River Regional Board of Education, 189 N.J. 381 (2007) extended the workplace protections provided under Law Against Discrimination to situations where schools fail to stop severe and pervasive bullying based upon protected characteristics such as sex, sexual orientation and national origin. This means that if a school permits severe and pervasive harassment based upon a protected characteristic, the school can be found liable. Moreover, if the school knows or should know of the existence of unlawful discrimination or harassment, the law requires that the school investigate, remediate and prevent it from happening again.

The video shown by ESPN of several Rutgers basketball practices reveals numerous incidents of Mike Rice pushing, kicking and throwing basketball balls at players. It also depicts Mike Rice yelling gay slurs at players calling them "faggots" and other inappropriate comments. ESPN has also reported that Mike Rice regularly called one of his former players who transferred to Rhode Island, Gilvydas Biruta, names relating to his national origin of Lithuania and gay slurs. Former Rutgers assistant coach, Eric Murdock, who is anticipated to file a lawsuit against Rutgers for unlawful retaliation and wrongful termination, has alleged that Mike Rice would constantly scream at Mr. Biruta by using his national origin and gay slurs. For example, Mr. Murdock says that Mike Rice called Mr. Biruta a "soft-ass Lithuanian bitch,' 'soft-ass Lithuanian pussy' and 'Lithuanian faggot.'" Mr. Biruta told ESPN that he took offense to Rice's name calling and insults stating, "If you're going to criticize me as a basketball player, I'm OK with that," he said, "but he would criticize me as a person." Mr. Biruta also told ESPN that the main reason he transferred was because of Mike Rice's treatment of him.

If what Mr. Murdock and Mr. Biruta have said is true concerning the specific comments that Mike Rice said to Mr. Burta concerning his national origin, it is likely that Mike Rice created an illegal hostile work environment toward Mr. Biruta as a result of his national origin which would be a violation of the New Jersey Law Against Discrimination.

It has also been reported that Mike Rice would regularly refer to players as "faggots" during practice. Under the New Jersey Law Against Discrimination, a person does not necessarily have to be gay in order to be a victim of sexual orientation discrimination under the New Jersey Law Against Discrimination. The definition or sexual orientation under the New Jersey Law Against Discrimination is male or female heterosexuality, homosexuality or bi-sexuality by inclination, practice, identity or expression, having a history thereof or being perceived, presumed or identified by others as having such an orientation. This broad definition of sexual orientation means that it is arguable that a Rutgers player, who is a heterosexual, but was nevertheless "identified" as being a "faggot" by Mike Rice may be a victim of actionable discrimination under the New Jersey Law Against Discrimination. Therefore, Mike Rice's identifying players "faggots" may constitute a hostile work environment based upon sexual orientation.

There is no doubt Rutgers did the right thing in terminating Mike Rice based upon these very serious allegations.


March 1, 2013

The New Jersey Appellate Division decided that a company's mandatory program and policy implemented only against employees suffering from alcoholism is a violation of the New Jersey Law Against Discrimination. In A.D.P. v. ExxonMobil Research Company, ExxonMobil Research and Engineering Company (Exxon) forced employees identified as recovering alcoholics to sign a contract that required only those employees to submit to mandatory clinical drug testing for two (2) years and monitoring for an additional three years. Other employees were not subject to drug or alcohol testing except for cause. In reversing the lower court's grant of summary judgment in favor of Exxon, the Appellate Division determined that the additional terms and conditions of employment imposed by Exxon based on Plaintiff's disability of alcoholism constitutes a claim for disability discrimination.

Plaintiff began working for a predecessor company of Exxon in 1978 as a research technician. She continued with Exxon and worked for a total of twenty-nine years. Plaintiff was consistently ranked as a top performer and received eight promotions from 1983 through 2005 becoming a Senior Research Associate. After the death of Plaintiff's husband in 2004, she suffered from depression and other medical conditions. In August of 2007, Plaintiff disclosed to a nurse at Exxon that she was an alcoholic and planned to check herself into an inpatient rehabilitation program in order to receive treatment for her alcohol dependency and depression. Plaintiff successfully completed inpatient rehabilitation at Carrier Clinic and outpatient treatment at Hunterdon Medical Center. Before Plaintiff was allowed to return to work at Exxon, she was required to sign an after-care contract pursuant to Exxon's company-approved after-care program. The after-care contract identified Plaintiff as an employee recovering "from chemical dependency" and mandated she participate in the after care program, totally abstain from alcohol and drugs not prescribed by a physician, submit to clinical substance testing for a minimum of two years after completion of a Primary Treatment Program and be monitored for an additional three years. The mandatory testing was to be periodic and unannounced. The policy applied to Plaintiff also stated that an employee suffering from alcohol or drug dependency that refuses rehab, fails to respond to treatment, or fails to exhibit satisfactory work performance would be disciplined up to and including termination.

In fear of losing her job, Plaintiff signed the after-care contract and submitted to nine (9) random breathalyzer tests between October 29, 2007 and August 20, 2008. Exxon had no reasonable cause to believe Plaintiff had been drinking alcohol at work or was intoxicated when these breathalyzer tests were administered. The tests were administered solely because of the after-care contract Plaintiff was required to sign as a recovering alcoholic. On August 22, 2008, Plaintiff was forced to take yet another "random" breathalyzer test. This test produced blood alcohol concentration (BAC) readings of .047 and 0.43.3. These readings are well below the threshold BAC of 0.08 set by New Jersey law as driving under the influence. Plaintiff was terminated on August 26, 2008. Exxon articulated that the only reason Plaintiff was terminated was because she violated the after-care contract in having a positive test. Exxon confirmed that, "an employee's status as an alcoholic is the lone trigger for requirements of total abstinence and random testing without cause." The company also confirmed that Plaintiff performance had absolutely nothing to do with her termination and that even if she was in the top 1 percent of her group, she would still have been terminated for failing the test.

The court applied a Price Waterhouse analysis in light of the direct evidence that Exxon's after-care contract was facially discriminatory and demonstrated hostility towards persons suffering from the recognized disability of alcoholism. Under a Price Waterhouse analysis, Exxon was required to prove that it would have still terminated Plaintiff even if the illegal bias had not played a role in the employment decision. The direct evidence Price Waterhouse analysis required Exxon to assert an affirmative defense that absent the discriminatory animus, Plaintiff would still have been terminated.

Exxon asserted that its legitimate non-discriminatory justification for the after-care contract and the resulting termination of Plaintiff's employment was to protect the health, safety and effective functioning of its employees and to reasonably accommodate Plaintiff's alcoholism. The Court rejected both assertions. As to the safety defense, the Court rejected such an affirmative defense because Exxon merely assumed that Plaintiff posed a safety risk in the work environment merely because of her disability of alcoholism. The policy in itself makes the assumption that Plaintiff posed an enhanced risk of substantial harm in the workplace based on the mere fact that she suffers from a particular disability. Citing to Barbera v. DiMartino, 305 N.J. Super. 617 (App. Div. 1997), the Court stated, "the employer may not assume that harm will result, nor may it act on the fear and prejudices of other employees." Exxon's policy includes the assumption the law prohibits. The policy states "that alcohol, drug or other substance abuse by employees will impair their ability to perform properly." The policy goes on to state that such abuse "will have serious adverse effects on the safety, efficiency and productivity of other employees and the Corporation as a whole."

Exxon failed to make an individualized assessment of Plaintiff's safety risk, which is required under both the New Jersey Law Against Discrimination and the American with Disabilities Act to justify an employer's random alcohol testing of an employee who has returned to work after a rehabilitation program. Additionally, within this individualized assessment, an employee who repeatedly tests negative for alcohol may not be subjected to continued testing because the employer may no longer have a reasonable belief that the employee will pose a safety threat. The Court found Exxon's blanket requirements applied to any identified alcoholic to be a confirmation of the "facially discriminatory nature of the Policy rather than establishing any affirmative defense to the allegation of unlawful discrimination."

The court rejected Exxon's argument that the after-care contract was a reasonable accommodation. As articulated by the Supreme Court, the only two instances where reasonable accommodation is an issue are (1) when the Plaintiff pleads failure to reasonably accommodate as a separate cause of action and (2) when the employer asserts that the employee was terminated because of the employee's inability to perform the job. Neither occurred here. The court further stated that the facts do not support a characterization of any of Exxon's actions as a reasonable accommodation except granting Plaintiff's request for leave to attend the in-patient rehabilitation program.

The Plaintiff's Pierce claim was denied because the Court determined the claim did not "seek to vindicate interests independent of those protected by the LAD" and was therefore barred. Specifically, the court rejected Plaintiff's argument that her termination for failing to comply with the after-care contract constituted a violation of the right to privacy guaranteed by the New Jersey Constitution.

The court's analysis and decision in this case upheld the primary purpose of the New Jersey Law Against Discrimination; to prevent unlawful discrimination by an employer against an employee because of the employee's membership in a protected class. Plaintiff was subjected to a specific standard of conduct based solely because she identified herself as recovering alcoholic. Plaintiff was terminated as a result of being singled out and forced to adhere to such standards because of her disability. Such direct discriminatory animus is exactly what the New Jersey Law Against Discrimination was designed to prevent.

Is Houston Rockets' Royce White's Request For His Own Doctor to Have Final Say As to Whether He Can Play a Reasonable Accommodation under the Americans with Disabilities Act?

February 1, 2013

HBO Real Sports aired a story last night about Houston Rockets rookie Royce White and his ongoing battle for the Houston Rockets to provide him his requested reasonable accommodations under the Americans with Disabilities Act. White suffers from mental health disabilities, including Generalized Anxiety Disorder and has not been able to practice or play a game as a result of not being provided his requested for reasonable accommodations.
After a storied career at Iowa State, White was drafted by the Houston Rockets with the 16th pick in the 2012 NBA draft. Prior to the draft, the Houston Rockets, along with other NBA teams, were aware of White's mental health disabilities and the risks associated with his disabilities that could impact his ability to perform in the NBA. After being drafted, and after signing a 3.3 million dollar contract, White has not been able to play because he believes he has not received the requested accommodations he needs for his disability.
White has requested that the Houston Rockets provide him a medical health protocol as a reasonable accommodation under the Americans with Disabilities Act. More specifically, White has asked for a driver to drive him to all NBA games, which Houston has agreed to provide him. The current sticking point between White and the Houston Rockets is White's request to have an independent doctor have the final say as to whether White is medically able to play a particular game. White says that this is necessary because the Houston Rockets' doctors work for the Houston Rockets and therefore have the Houston Rockets' best interest and not his in mind when making the decision as to whether he is medically able to play. Houston Rockets will not grant this particular request because they feel it is unreasonable. After talks concerning this request hit a standstill, the Houston Rockets suspended White on January 6, 2013 and have stopped paying him his 3.3 million dollar salary.
It is important to understand the law concerning reasonable accommodations under the ADA. Under the ADA, an employee must first request that the employer provide a reasonable accommodation for his or her disability. Once the request is made, the employer must initiate an interactive process with the employee to determine whether a reasonable accommodation can be made to assist the employee in performing the essential functions of the job. Both the employee and employer must engage in this process in good faith - the rationale being that both sides have information that the other may not possess. By communicating and working together, the hope is that the employer and employee are able to identify potential accommodations that will assist the employee in being able to perform the essential functions of their position. The employer does not have to grant the employee the requested accommodation or any other accommodation if the employer engages in an interactive process in good faith and determines that the accommodation would constitute an undue burden or hardship on the employer's operations.
Based upon the facts reported in the HBO segment, our New Jersey employment attorneys believe a court may find White's request for an independent doctor to travel with the team and have the final say as to whether White is medically able to play as an unreasonable request for an accommodation for his disability. My main concern for White would be that a court would find it unreasonable for him to prejudge that Houston Rockets' doctors only have the Houston Rockets best interest in mind and not his. If I were counseling White, I would advise him that if he does not feel well enough to play, then he should not play - regardless of whether the Houston Rockets doctors say he can. He knows better than anyone whether he is medically able to play. If he does not feel well enough to play, then he should sit out, as I am sure he would. Let the Houston Rockets fine him for making him work when he is medically unable to do so. Have the fight then, in which I think he would have much stronger grounds to stand on. At least at this point, White would not be speculating or prejudging the Houston Rockets doctor's motives.


January 10, 2013

The United States Court of Appeals for the Seventh Circuit reversed a District Court's grant of summary judgment in an action alleging TIN Inc. ("TIN") violated the Family Medical Leave Act ("FMLA") by interfering with an employee's right to take leave and retaliating against that employee. The Seventh Circuit reversed the District Court's decision that TIN terminated Mr. Jeff Pagel's employment due to his poor performance rather than for his taking of FMLA protected leave. The Court determined that there were still genuine issues of material fact as to why Mr. Pagel was terminated. Therefore, the grant of summary judgment in TIN's favor was reversed and the case was remanded for further proceedings.

Jeff Pagel worked for TIN as an outside salesman from May 2000 until his termination in October 2006. Mr. Pagel produced at least $7 million dollars in sales for the company per year, earning a $180,000 annual salary. On January 1, 2006, TIN instituted a new policy that required outside salesmen to submit daily activity reports to their Regional Sales Manager. Salesmen then would be given a periodic evaluation that included an assessment of their compliance with this new reporting system.

In July 2006, Mr. Pagel experienced several health problems and disabilities including being diagnosed with septal wall ischemia (a blockage in a portion of his heart). Mr. Pagel's health problems caused him to take a medical leave of absence from work. On August 29, 2006, Mr. Pagel underwent an angioplasty and stent replacement, spent one day in the hospital and was advised to rest for several days following the operation. The next week Mr. Pagel's symptoms returned and he was admitted to the hospital for two nights. It was determined that Mr. Pagel also had an irregular mass in his left lung that was unrelated to his septal wall ischemia.

In the midst of Mr. Pagel's health issues, he was called into a meeting with his Plant Manager. In that meeting he was told that his performance had steadily decreased in the last two years, he submitted the fewest number of new customer packing designs and he made the least amount of sales calls compared to the other account managers. Mr. Pagel disputed the accuracy of this evaluation claiming that the Plant Manager was unaware of many of his sales. Mr. Pagel also indicated that many of the days included in the evaluation he was out receiving FMLA qualifying treatment for his health conditions. Although Mr. Pagel had never been warned about his performance or disciplined before, he received a written memo that if his performance did not improve he would be terminated.

Mr. Pagel's Regional Sales Manager contacted him while he was in a clinic to receive a PET scan and informed him he would be observed and evaluated the next day in a sales ride along. Due to the short notice, Mr. Pagel was only able to schedule one call that day and two other attempts were unsuccessful. Usually scheduling a sales call would require one-week notice to the prospective customer but Mr. Pagel was only given one day notice to schedule the calls for his ride along. Mr. Pagel's Regional Sales Manager called the ride along "disastrous" and considered it the final straw in Mr. Pagel's negative performance. On October 2, 2006, Mr. Pagel was terminated. His termination memo articulated the reason for his termination being poor performance and described his poor performance in the sales ride along and his failure to improve since the August 24, 2006 evaluation as contributing factors.

Mr. Pagel brought both an interference and retaliation claim under the FMLA. Under an FMLA interference claim, Mr. Pagel was required to prove that: 1) he was eligible for FMLA protections; 2) his employer was covered by the FMLA; 3) he was entitled to take leave under the FMLA; 4) he provided sufficient notice of his intent to take leave; and 5) his employer denied him FMLA benefits to which he was entitled. Makowski v. SmithAmundsen LLC, 662 F.3d 818, 825(7 th Cir. 2011)(quoting Goezler v. Sheboygan Cnty., Wis., 604 F.3d 987,993 (7th Cir. 2010)). The Court focused on only the last three elements since the first two were conceded by TIN.

The Court found that Mr. Pagel produced sufficient evidence to survive summary judgment on his interference claim under the FMLA. Mr. Pagel was entitled to take FMLA leave because his septal wall ischemia qualified as a serious health condition. In finding the element of entitlement was met, the Court also noted that Mr. Pagel's inpatient care on at least three (3) occasions further substantiated that his septal wall ischemia was a serious health condition. Mr. Pagel was also deemed to have provided sufficient notice of his intent to take FMLA leave. The employer's admission that they knew of Mr. Pagel's chest pains, that he was sick and that he was going to be in the hospital was enough to establish sufficient notice. However, the court did note the uncertainty in Mr. Pagel's testimony about his communications with his employer.

The Appellate Court rejected the district court's finding that Mr. Pagel's disastrous performance in the ride along with his regional sales manager was a legitimate, non-discriminatory reason for his termination. The court determined that because Mr. Pagel was given only one day to prepare for the ride along and it was customary for account managers to be given at least one week, a reasonable jury could interpret such evidence as Mr. Pagel being set up for failure. Additionally, the court rejected TIN 's argument that it had independent grounds to terminate Mr. Pagel due to his poor performance. For instance, TIN stated that Mr. Pagel's revenue and volume had declined. Mr. Pagel countered the accuracy of that contention by asserting that his commission-based salary remained stable and that his salary would have declined if the contention that his sales revenue and volume declined was actually true. The Court deemed such evidence sufficient for Mr. Pagel to survive summary judgment.

The Appellate Court also evaluated Mr. Pagel's retaliation FMLA claim under the direct method. In order for Mr. Pagel to prove a violation of the FMLA under the direct method retaliation claim, he was required to show a casual connection between the taking of FMLA protected leave and the adverse employment action. The court noted that such connection may be shown by a direct admission from TIN Inc. or "a convincing mosaic of circumstantial evidence." The court further explained that such a "convincing mosaic" may include suspicious timing, ambiguous statements from which a retaliatory intent can be drawn, evidence of similar employees being treated differently, or evidence that the employer offered a pretextual reason for the termination. Under the direct method, Mr. Pagel argued that TIN's claim that he was terminated due to poor performance was mere pretext and he was terminated in retaliation for taking FMLA protected leave. The court concluded that although poor performance can be an acceptable non-discriminatory basis for termination, a genuine issue of material fact existed as to whether poor performance was the reason for Mr. Pagel's termination.

Employer's Best-Qualified Policy to Fill Vacant Positions does not Negate Requirement to Provide a Reassignment Reasonable Accommodation under the Americans with Disabilities Act

December 27, 2012

The United States Court of Appeals for the Seventh Circuit clarified the interpretation of the term "reassignment" under the Americans with Disabilities Act (ADA) by concluding that an employer's best-qualified policy to fill vacant positions would not automatically establish undue hardship to avoid the granting of a reasonable accommodation request. In EEOC v. United Airlines, the Seventh Circuit reversed the District Court's dismissal of the Equal Employment Opportunity Commission's (EEOC) claim brought against United Airlines on behalf of disabled employees who requested a reasonable accommodation in the form of a reassignment but were denied that request because of a "competitive transfer policy."

In 2003, United Airlines developed "Reasonable Accommodation Guidelines" that detailed the reasonable accommodation process for current employees who were no longer able to perform the essential functions of their job due to their disability. The guidelines indicated that a transfer could be a reasonable accommodation but the transfer process was "competitive." The competitive transfer policy essentially denied disabled employees requesting a transfer as a reasonable accommodation automatic placement in vacant positions. Instead, disabled employees would only be given preferential treatment and a more qualified candidate could be chosen for the vacant position instead. The EEOC filed this suit on behalf of disabled United Airlines' employees affected by this policy, asserting that the Americans with Disabilities Act requires employers to advance a disabled employee requesting reassignment as a form of reasonable accommodation over a more qualified candidate so long as the disabled employee can perform the essential functions of the job and such placement does not cause an undue hardship.

The EEOC also asserted this argument in EEOC v. Humiston-Keeling. In Humiston-Keeling, the court held that "the ADA does not require an employer to reassign a disabled employee to a job for which there is a better applicant, provided it's the employer's consistent and honest policy to hire the best applicant for the particular job in question." EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1029 (7th Cir. 2000). In this case, the EEOC requested the Court overturn that decision. In support of their argument, the EEOC cited to U.S. Airways Inc. v. Barnett. In Barnett, an employee of U.S. Airways injured his back but initially invoked his seniority status instead of his disability to obtain a transfer. However, two senior employees subsequently bid for the same position and the disabled employee, after asserting a request for a reasonable accommodation, was denied due to U.S. Airways' seniority system. The Court determined that under those circumstances, the seniority system was sufficient to meet the employer's burden of showing the accommodation was unreasonable. The Court noted that the seniority system, although a disability-neutral rule, did not provide an automatic exemption from accommodation requirements. Other facts specific to the situation established an undue hardship.

The Court also confirmed a two-step inquiry, articulated in Barnett, which must be applied to reasonable accommodation requests in the form of reassignments under the Americans with Disabilities Act. First, it must be determined if mandatory reassignment is ordinarily reasonable. Second, it must be determined if there are any specific considerations particular to the employer's system that would cause undue-hardship and make mandatory reassignment unreasonable.

The Court corrected any confusion that a best-qualified system is the same as a seniority system as applied to disabled employees requesting a reassignment as a reasonable accommodation. The Court determined the holding in Mays v. Principi was in error in suggesting that a deviation from a best-qualified policy always presented an undue hardship. Mays v. Principi, 301 F.3d 866 (7th Cir. 2002). A disabled employee's request for reassignment is considered a reasonable accommodation under the Americans with Disabilities Act and an employer must show undue hardship to avoid a violation of the Americans with Disabilities Act in denying such a request when vacant positions are available. A best-qualified selection policy does not automatically present such an undue hardship.


November 30, 2012

In 2010, Governor Christie and the New Jersey state legislature revised New Jersey Unemployment Compensation Law to include a new "severe misconduct" standard to disqualify certain employees from receiving unemployment benefits. Because of the ambiguity of the statutory revisions to the revised law, New Jersey unemployment lawyers, claims examiners, employers and employees have been left without clear guidance as the difference between being terminated for "severe misconduct" versus the "simple misconduct."

The revised New Jersey Unemployment Compensation Law did not change the definition of simple misconduct. Simple misconduct is defined as actions that are improper, intentional, connected with one's work, malicious and within the applicant's control and is either a deliberate violation of his or her employer's rules or a disregard to standards of behavior that the employer has the right to expect of the applicant. A simple misconduct disqualification will prevent an applicant from receiving unemployment benefits for the week of the termination and the subsequent seven weeks.

The major change contained in the revised legislation was to include a new "severe misconduct" category for disqualification of unemployment benefits. Under the revised law, being terminated for "severe misconduct" will disqualify a claimant from receiving unemployment benefits indefinitely or until he or she becomes re-employed, works for four weeks, earns at least six times their weekly benefit amount and is terminated from that employment due to no fault of their own. The problem with the enactment of the new "severe misconduct" standard is that it is completely void of a definition of what constitutes "severe misconduct." Instead, the revised statute only sets forth "examples" of "severe misconduct" that include the following: repeated violations of an employer's rule or policy, repeated lateness or absences after the applicant receives a written warning from their employer, falsification of records, physical assault or threats that do not constitute gross misconduct, misuse of benefits or sick time, abuse of leave, theft of company property, excessive use of drugs/alcohol on the job, theft of time, or where the behavior is malicious and deliberate but is not considered gross misconduct.

The "example" of severe misconduct that "the behavior is malicious and deliberate but is not considered gross misconduct" is in clear conflict with the definition of the supposedly lesser "simple misconduct" standard. However, by its very definition, the "malicious and deliberate" behavior example of severe misconduct has effectively rendered the simple misconduct standard meaningless because severe misconduct is a lesser standard. This, of course, makes no sense.

As a result, our New Jersey unemployment lawyers have witnessed claimants who would have been eligible for unemployment benefits pre-2010, be denied their claim for unemployment benefits because an examiner believed their conduct was "malicious and deliberate" thereby constituting "severe misconduct". As a result, instead of being eligible to receive unemployment benefits (or at worst, face a seven week disqualification for simple misconduct) many New Jersey employees have become completely disqualified for "severe misconduct."

There is proposed legislature that would finally remedy this serious problem that our New Jersey unemployment lawyers and clients are routinely confronted with their initial determinations or unemployment appeals. On December 3, 2012, the Assembly will vote on a bill to repair and clearly define the differences between a simple misconduct termination and a severe misconduct termination. If adopted, the new simple misconduct definition will read as follows:

"Simple misconduct" means misconduct, other than severe or gross misconduct, which is improper, intentional, connected with the individual's work, malicious, within the individual's control, not a good faith error of judgment or discretion, and is either a deliberate failure, without good cause, to comply with the employer's lawful and reasonable rules made known to the employee or a disregard of standards of behavior the employer has a reasonable right to expect, including reasonable safety standards and reasonable standards for a workplace free of drug and substance abuse. "Simple misconduct" includes: (1) repeated failure, without good cause, to comply with lawful, reasonable instructions of the employer not requiring the employee to perform services beyond the scope of the employee's customary job duties; (2) falsification of an employment application or other record required by the employer to determine the employee's qualifications or suitability for the job or omitting information which created a material misrepresentation of the employee's qualifications or suitability for the job; (3) tardiness without good cause which is chronic or excessive and repeated after written warnings from the employer; and (4) repeated unauthorized absences without good cause, such as illness or other compelling personal circumstance, or unjustified failure to provide notice prior to the unauthorized absences. An unauthorized absence without good cause for five or more consecutive work days may constitute job abandonment and subject the individual to disqualification for voluntarily leaving work without good cause attributable to work pursuant to subsection (a) of this section. An individual's discharge for failure to meet the employer's standards regarding quality or quantity of work shall not be considered misconduct unless the employer demonstrates to the division that the standards are reasonable and that the individual deliberately performed below the standards.

R.S. 43:21-5 (A1874 Establishes standards regarding the disqualification of claimants for unemployment compensation for misconduct).

The "severe misconduct" definition would be as follows:

"Severe misconduct" means misconduct connected with the individual's work other than gross misconduct, which: (1) is committed with actual malice and deliberate disregard for property, safety or life of the employer, fellow employees, contractors, invitees of the employer, or members of the public at the worksite, or consumers of the employer's products or services, and consists of physical assault, threats of physical assault, or theft or other employee-caused property or monetary loss or damage so serious that it is determined by the division that the penalties for simple misconduct are not sufficient; or (2) is comprised of a pattern of instances of simple misconduct which are, after repeated written warnings from the employer, repeated so frequently that they cause substantial disruption of the employer's operations or substantial property or monetary damage or loss for the employer which is so serious that it is determined by the division that the penalties for simple misconduct are not sufficient. Disruption of operations from a cessation of work during a labor dispute shall not be regarded as severe misconduct for the purposes of this subsection (b).

R.S. 43:21-5 (A1874 Establishes standards regarding the disqualification of claimants for unemployment compensation for misconduct).

If passed, this bill would truly be a victory for all New Jerseyans, especially those employees and their family members who have lost their job and are in need of unemployment benefits. The new language for simple misconduct gives a clear, descriptive, definition in addition to four (4) clear actions/types of actions which will constitute simple misconduct. As for severe misconduct, the new language provides an actual definition, instead of a short inadequate, non-inclusive list of examples. The new severe misconduct language provides two (2) clear, relatively high standards, an employer must demonstrate before a claimant can be disqualified for severe misconduct. Indeed, severe misconduct would finally rightfully be defined actions that more severe than an employee committing simple misconduct.

In its current form, the law has no clear standard for claims examiners to apply to the variety of different circumstances that occur in employee terminations. This has resulted in claimants being wrongfully denied benefits permanently or having to wait up to six (6) months for an appeal hearing due to the terrible backlog in New Jersey unemployment cases. Hopefully on December 3rd, the Assembly will vote in favor of this bill recognizing the necessary and positive impact it will have on New Jersey Unemployment Compensation law. We encourage all New Jersey citizens to reach out to their state representatives to express the importance of passing this law. To find out who your legislators are, please go to:

Being Told of Likely Termination Is Not Considered Good Cause to Quit and Receive New Jersey Unemployment Benefits

November 15, 2012

The New Jersey Appellate Division recently affirmed the Board of Review's decision denying claimant, Ms. Nzinga Jackson, New Jersey unemployment benefits, finding she left work voluntarily without good cause attributable to the work. In Ms. Jackson's initial hearing, the Deputy Director found that Ms. Jackson's resignation from her position because her union representative told her she would be laid off from work did not constitute voluntarily leaving for good cause attributable to the work. Ms. Jackson appealed the Deputy's determination. The Appeal Tribunal and subsequently the Board of Review affirmed the Deputy's decision.

In the case, Jackson v. Board of Review, Ms. Jackson worked for Verizon New Jersey, Inc. ("Verizon") from February 25, 2008 through September 4, 2010 as a customer service representative. Ms. Jackson accepted a voluntary severance package when her union representative informed her that she would most likely be laid off in the future because of her lack of seniority. Based on that information, Ms. Jackson accepted the severance package and resigned. Ms. Jackson did not confirm that she was going to be laid off with Human Resources or any other Verizon representative. In fact, Verizon did not lay off any employees because an "overwhelming" number of employees voluntary accepted the separation package.

Affirming the Deputy's initial determination denying Ms. Jackson's benefits, the Appeal Tribunal rejected Ms. Jackson's argument that she did not leave work voluntarily without good cause attributable to the work. The Appeal Tribunal stated that acceptance of a voluntary severance package is a valid reason for leaving the job, however it is a personal reason and is not connected to the work itself. During the appeal hearing, the customer service manager testified that Ms. Jackson was not under any direct threat of being laid off if she did not accept the package and continuing work was still available at the time she resigned. Ms. Jackson alleged that she would have been laid off in May 2011, approximately nine (9) months after her voluntary resignation.

In reviewing this decision the Appellate Division stated that "in the context of voluntary early resignation, an employee will not be found to have left for good cause attributable to the work unless the employee's 'subjective fear [of imminent layoff] was based upon definitive objective facts . . . to buttress [the] belief that [her] job [ ] would actually be eliminated in the impending work reduction,' and (2) that [the] claimant [ ] would suffer substantial economic loss.'" An imminent lay off is defined as one in which the individual will be separated within 60 days. N.J.A.C. 12:17-9.5. The Court further stated that the mere threat or possibility of a layoff is an insufficient basis to trigger the right to receive unemployment benefits.

The Court concluded that Jackson's argument that she was effectively terminated was not supported by the factual record. Although she was told by her union representative that she would most likely be laid off in the future, the Court found that she was never threatened with an imminent termination and she instead, made a personal decision to voluntarily leave work to secure the beneficial early resignation package. An employee who leaves work for personal reasons is deemed to have left work voluntarily without good cause attributable to the work. Based on that finding, the Appellate Division affirmed the determination disqualifying Ms. Jackson for unemployment compensation benefits.

Employee Required to Repay New Jersey Emergency Unemployment Compensation Benefits

October 15, 2012

The New Jersey Appellate Division recently affirmed the Board of Review's decision requiring claimant, Anthony M. Cibik, to refund extended Emergency Unemployment Compensation (EUC) received, totaling $14,600.

In the case, Cibik v. Board of Review, Mr. Cibik worked for a company that was acquired by HDR, Inc. (HDR). Mr. Cibik worked for HDR for about one and a half years until his position was terminated in August 2009. Initially, Mr. Cibik worked in HDR's New Jersey location. Around June or July 2008, Mr. Cibik relocated and was transferred to an HDR location in Oregon. He worked at the Oregon location from that time up until his termination.

Upon his termination, Mr. Cibik applied for unemployment benefits in New Jersey. He was found eligible for unemployment benefits in New Jersey because most of his wages during his employment with HDR were from working at the New Jersey location. Mr. Cibik received a total of twenty six (26) weeks of unemployment benefits. Mr. Cibik then received New Jersey EUC benefits from February 20, 2010 to August 7, 2010 totaling $14,600. However, Mr. Cibik was entitled to receive unemployment compensation benefits from Oregon starting on February 10, 2010. Mr. Cibik was unaware of his eligibility to receive such unemployment benefits in Oregon at the time he filed for New Jersey EUC benefits. On August 18, 2010, Mr. Cibik received a letter from the Director of the New Jersey Division of Unemployment Compensation requesting refund of all monies received through New Jersey EUC.

Mr. Cibik was required to refund all monies received through New Jersey EUC because at the time he received those funds, he was entitled to receive regular unemployment benefits in Oregon. In affirming the Board of Review's decision, the Appellate Division stated that even though Mr. Cibik did not make any misrepresentations and did not withhold any material facts concerning his unemployment, full repayment of EUC benefits is required if someone received benefits he or she was not entitled to, for any reason, regardless of good faith. Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997).

The court noted that "EUC benefits are payable to individuals who have exhausted regular unemployment benefits under Federal or state law and who 'have no other rights to regular compensation or extended compensation. . . under . . . any other State . . . or . . . Federal law . . . .'" Pub. L. No. 110-252, §§4001(b)(1)-(2). Mr. Cibik was entitled to receive Oregon benefits at the same time he received New Jersey EUC. Therefore, Mr. Cibik's good faith mistake could not negate his responsibility to repay EUC benefits to which he was not entitled under Federal or New Jersey law.

The Appellate Division also declined to address Mr. Cibik's argument that his repayment obligation should be waived because he asserted this argument for the first time on appeal to the Board of Review and neither the Board nor the Director decided on that issue.

Employee Disqualified from Receiving Unemployment Benefits for Failing to Adhere to Employer's Call Out Procedure

September 15, 2012

The New Jersey Appellate Division recently affirmed a Board of Review's decision denying claimant, Mr. John M. Custin, from receiving unemployment benefits, finding that he engaged in misconduct connected with the work. Mr. Custin was found eligible for unemployment benefits in the initial hearing however, his employer appealed. The Appeal Tribunal reversed the initial determination finding Mr. Custin eligible for benefits and found that Mr. Custin was disqualified. The Board of Review affirmed that decision.

In the case, Custin v. Board of Review, Mr. Custin worked for Walmart Stores Inc. ("Walmart") from April 11, 2008 through April 26, 2010 as a sales associate. Mr. Custin did not report to work on April 17, 19, 21, 22, and 23 because of pain in his legs that rendered him unable to get out of bed. Walmart's policy required employees to call an employee hotline and get a verification number as proof that the employee followed the correct procedure to call out of work. Mr. Custin asserted that he did call the hotline but was unable to get a verification number because the hotline was not working properly.

Mr. Custin was first found eligible for unemployment benefits on May 13, 2010, however, Walmart appealed that determination. During the appeal hearing, Ms. Beverley Shuck, Mr. Custin's former manager, testified that Mr. Custin was terminated because he was a "no call, no show," on April 17, 19, 21, 22, and 23. Ms. Shuck testified that employees were fully aware of the call out procedure. Ms. Shuck also testified that Mr. Custin had called out in the past, using the correct procedure however, when she asked him why he did not call out in this instance, he stated "that his legs hurt and he figured if he couldn't walk he couldn't work." Ms. Shuck further testified that employees who were absent more than three days were required to provide a doctor's note pursuant to Walmart's leave of absence policy. Mr. Custin denied being aware of such policy.

Under the American Recovery and Reinvestment Act of 2009, Mr. Custin applied for a COBRA premium reduction following his termination. Initially, Mr. Custin's request was denied because it was determined that he was not an "Assistance Eligible Individual" because he had purportedly not been involuntarily terminated. This decision was reversed when Walmart submitted a letter stating that following an additional investigation it was determined that Mr. Custin was eligible for the COBRA subsidy. Mr. Custin asserted that Walmart's position as to his eligibility for the COBRA subsidy contradicted Walmart's position during the appeal hearing, that he voluntarily abandoned his job. However, the Appeal Tribunal denied Mr. Custin's request that Walmart's statement that he voluntarily abandoned his job be stricken.

The Appeal tribunal found that Mr. Custin was disqualified from receiving benefits because he did not properly notify Walmart of his absences which constituted misconduct connected with the work. Mr. Custin appealed the determination of the Appeal Tribunal denying his unemployment benefits arguing Walmart failed to prove his misconduct constituted a wanton or willful disregard of the employer's interests, a deliberate violation of the employer's rules, or an intentional and substantial disregard of his duties and obligations. Mr. Custin also argued that he was denied due process of law. The Board of Review affirmed the Appeal Tribunal's decision and disagreed with Mr. Custin's arguments.

The Board cited to Demech v. Bd. of Review, 167 N.J. Super. 35, 38 (App. Div. 1979) to support its finding that Mr. Custin's failure to call out was not inadvertent or unintentional and thus, constituted misconduct connected with the work. Citing Demech, the court stated, acts of willful, deliberate, or intentional misconduct must be distinguished from "[i]nadvertent or unintentional acts, or simple neglectful conduct not amounting to a wanton disregard of consequences...." Demech at 38-89. Mr. Custin was absent from work for five days and presented no credible evidence to refute Ms. Shuck's testimony that the hotline was not malfunctioning as other employees had successfully called out the same mornings that Mr. Custin complained he could not. The court concluded Mr. Custin failed, without justification, to take steps necessary to notify his employer of his absence and the reason therefor. N.J.A.C. 12:17-10.3.

The Board also disagreed with Mr. Custin's argument that he was denied due process of law because Walmart failed to provide him copies of his exit interview and attendance record which was referenced by Ms. Shuck in the appeal hearing. The court rejected this argument because Mr. Custin failed to raise the issue before the Appeal Tribunal although he had an opportunity for such presentation.

Lastly, the Court concluded that Mr. Custin's argument that the only issue that was in dispute was whether he voluntarily left his job and since this was decided in his favor, he should have been qualified for unemployment benefits. The Court rejected this argument stating that Mr. Custin was well aware of Walmart's position that he had been separated from work for misconduct, the notice he received from unemployment identified the issues were "voluntary leaving" and "discharge for misconduct," and at the inception of the Appeal Tribunal hearing, the Appeals Examiner informed all parties of the issues.

In rejecting all of Mr. Custin's asserted arguments and finding that his failure to properly notify his employer of his absence as required by Walmart's policy, the Appellate Division affirmed the determination disqualifying Mr. Custin for unemployment benefits.


August 15, 2012

The United States District Court for the District of New Jersey denied defendants motion for summary judgment in favor of the employee. The court held that that the Plaintiff employee established a prima facie case of age discrimination under the New Jersey Law Against Discrimination (NJLAD) finding ambiguity in the terms of his termination and defendants different reason for termination in summary judgment raised genuine issues of material facts and potential pretext for discrimination. Although the Court concluded there was no direct evidence of age discrimination, the Court used the McDonnell Douglas burden shifting analysis to determine that defendant's stated non-discriminatory reason for Plaintiff's termination could be a pretext for age discrimination in violation of the NJLAD.

In Buchholz v. Victor Printing Inc., the Plaintiff, Mr. Richard Buchholz worked at Victor Printing Inc. as a pressman from June 1986 through 2006. In 2006, Victor Printing reduced Mr. Buchholz' hours to three days a week claiming that there was less work available for Mr. Buchholz because he was not trained on the new multi-color press machines that Victor Printing had acquired. Following the reduction in hours, Plaintiff accepted a full time job as a driver and his compensation remained the same at $17.50 per hour. He was then 63 years old. In 2008, Mr. Buchholz survived a lay off in which eight other Victor Printing employees were terminated.

A series of incidents occurred in the five months preceding Mr. Buchholz' termination involving complaints from individuals who came in contact with Mr. Buchholz while he was driving the Victor Printing van. An individual called Victor Printing and complained about an encounter he had with Mr. Buchholz where Mr. Buchholz confronted the driver about his driving and got out of the van to see if it had been hit. Another individual called and complained Mr. Buchholz had cut him off while exiting the New Jersey Turnpike nearly causing an accident. A customer also complained that Mr. Buchholz had inappropriately complained about Victor Printing when Mr. Buchholz told the customer the boxes were too heavy and Victor Printing never sent anyone to help him. On October 15, 2009, the day before Mr. Buchholz' termination, Mr. Buchholz hit a parked truck belonging to a large client of Victor Printing, Edmunds Direct Mail. The truck and the Victor Printing van were damaged and Mr. Buchholz failed to report the incident to Victor Printing or to Edmunds Direct Mail.

On October 16, 2009, Mr. Buchholz was confronted about the damage to the Edmunds Direct Mail truck and he admitted to his failure to report the incident. At that time, Victor, the owner of Victor Printing informed him that he was being laid off. Victor Printing asserted that his termination was identified as a lay-off as an accommodation to allow for unemployment benefits and for future employment. Mr. Buchholz asserted he was told he was being laid off because there was not enough work and if work increased he could come back three days a week for a lower rate of pay. Mr. Buchholz was 65 years old. Immediately after Mr. Buchholz' termination, three current employees took over his duties until a 22 year-old replacement driver was hired in April 2010.

About two weeks before Mr. Buchholz' termination and on October 8, 2009, Mr. Buchholz was asked by Victor, the owner of Victor Printing Inc. about his retirement plans. Prior to these inquiries, Mr. Buchholz had switched his medical coverage from Victor Printing's plan to a TD Bank medical plan. Also, on October 8, 2009, Mr. Buchholz withdrew his entire 401(k). Additionally, Mr. Buchholz began collecting social security in October 2009.

In denying defendants' motion for summary judgment, the Court analyzed Plaintiff's claim of age discrimination in violation of the New Jersey Law Against Discrimination through both direct and circumstantial evidence. The NJLAD prohibits employers from terminating an employee because of his/her age. See N.J.S.A. § 10:5-12(a). The court stated that to establish age discrimination under the NJLAD, the discrimination must be intentional however, either direct or circumstantial evidence may be used.

Here, the Plaintiff, Mr. Buchholz, presented both direct and circumstantial evidence. The Court determined Mr. Buchholz failed to present direct evidence that his age was a substantial factor in his termination however, found sufficient circumstantial evidence to establish a prima facie case of discrimination, and found that enough facts were present to support a reasonable inference that defendants did not act for its stated non-discriminatory reason.

In order to establish direct evidence age discrimination under the NJLAD it is the Plaintiff's burden to prove that age was a substantial factor in an adverse employment decision. The Court cites to Getzler v. Virtua West Jersey Health Systems, 804 F. Supp. 2d 241, 250 (D.N.J. 2011), stating "stray remarks in the workplace, unrelated to the decisional process, [are] not sufficiently direct evidence of discrimination to justify requiring an employer to prove that its....decisions were based on legitimate criteria." The court disagreed with Mr. Buchholz' assertion that the two inquiries about his retirement plans constituted direct evidence of his termination. The Court highlighted the events surrounding the inquiries including Mr. Buchholz' decision to withdraw his entire 401(k) and his receipt of social security benefits stating that Victor, as the owner of Victor Printing, has a legitimate interest in knowing if his employees are going to be leaving employment through retirement. See Glazman v. Metro. Mgmt. Corp., 391 F.3d 506, 513 (3d Cir. 2004).

After determining Mr. Buchholz did not meet his burden to make a claim for age discrimination using direct evidence, the Court then considered circumstantial evidence under the McDonnell Douglas burden-shifting analysis. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prove a claim of age discrimination under the McDonnell Douglas burden-shifting analysis, Mr. Buchholz must establish a prima facie case of discrimination where he is required to demonstrate by a preponderance of the evidence that: (1) he was in a protected group; (2) he was performing his job at a level that met his employer's legitimate expectations; (3) he nevertheless was fired; and (4) the employer sought someone to perform the same work after he left. Fischer, 974 F. Supp. at 805 (citing Erickson v. Marsh & McLennan Co., 117 N.J. 539 (1990)).

If all the elements of a prima facie case are met, the burden shifts to the employer, to provide a non-discriminatory reason for its employment decision. Then, the burden shifts back to the employee, Mr. Buchholz, to prove the non-discriminatory reason stated by Victor Printing was not the true reason for his termination but merely pretext for discrimination.

Mr. Buchholz met all four elements required to establish a prima facie case of age discrimination under the NJLAD. Victor Printing did not dispute Mr. Buchholz was a member of the protected group at 65 years-old, that he was terminated, and that they hired someone else to perform his job (elements one, three and four). As to the second element, the Court determined that despite the incidents that occurred while Mr. Buchholz was a driver, Mr. Buchholz performed his job and that those incidents go to his performance and should be considered not in the prima facie case determination, but instead when analyzing the employer's stated non-discriminatory reason and the employee's showing of pretext.

The Court found that Victor Printing met its burden to establish a sufficient non-discriminatory reason for Mr. Buchholz' termination. Victor Printing stated that Mr. Buchholz was terminated because of two incidents where individuals called to complain about Mr. Buchholz and Mr. Buchholz' failure to report damage to another company's vehicle when he hit the vehicle while working. The Court found that these incidents, if true, would justify Mr. Buchholz' termination for cause separate and apart from any alleged age discrimination.

However, the Court concluded that Mr. Buchholz raised a sufficiently genuine issue of material fact on the issue of pretext to preclude summary judgment. The disputed genuine issue of material fact was based upon the conversation that took place at the time of Mr. Buchholz' termination. The Court stated "There exists a dispute of material fact concerning the conversation that occurred at the time of plaintiff's termination." Mr. Buchholz testified that he did not ask to be laid off, he was told that Victor Printing did not have any work for him and the best thing to do is to give him a lay off, and that he could return to work at a reduced rate if available work increased at a later date. Victor Printing testified that when Mr. Buchholz was told he was being let go, Mr. Buchholz asked to be laid off.

The Court ultimately determined that the ambiguity in the reason for Mr. Buchholz' termination raised questions as to the legitimacy of Victor Printing's stated non-discriminatory reason for Mr. Buchholz' termination. Since now Victor Printing claimed Mr. Buchholz was terminated for his driving record, the court stated, "If plaintiff was being terminated for his driving record, why not say so, document the reason and its justification?" Instead, Victor Printing initially told Mr. Buchholz they did not have enough work for him but now state a different reason for his termination. The Court further stated that this "ambiguity raises the prospect that the stated reason - lack of work - was pretext or excuse for another prohibited reason, namely age. Thus, the context of Mr. Buchholz' other evidence about inquiries into his retirement plans and the hiring of another, younger employee soon after his termination should be analyzed by a jury to determine whether "such weakness, implausibility, inconsistencies, incoherencies, or contradictions" prove pretext.

Even though summary judgment was denied, the Court noted that Mr. Buchholz did not present a very strong case of age discrimination and only offered enough factual evidence to survive summary judgment. Furthermore, whether Mr. Buchholz was actually offered a chance to be rehired or whether he was laid off as a concession due to his years of service to the company is a credibility determination that the Court could not make on summary judgment.