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In recent celebrity employment law news, former reality television star, Angelina Larangeira (nee Pivarnick) settled a federal employment discrimination lawsuit against the Fire Department of the City of New York (FDNY) for $350,000. Pivarnick has been working as an Emergency Medical Technician (EMT) in Staten Island since 2016, where she alleges she was the victim of sexual harassment and assault. Specifically, Pivarnick sued the FDNY as well as one of her supervisors, Lieutenant Jonathan Schechter, alleging a hostile work environment and severe sexual misconduct that took place between 2017 and 2018.

IMG_2433-300x171In the Complaint, Pivarnick alleges that she was subjected to “repeated and unwelcome sexual advances, degrading comments about her body, vulgar sexual comments, inappropriate questions about her private relationships and, in one instance, the groping of an intimate part of her body without her consent”. This sexual misconduct allegedly took place in person at her work and via text message, when her supervisor sent her a message stating, “Your ass looked amazing and I wish I wasn’t working or in uniform because I definitely would’ve kissed those amazing lips”. As in many sexual harassment cases, Pivarnick was also assaulted. In her pleadings, she alleged that in May 2018, her supervisor groped her buttock and “made contact with her vaginal area.”

At the time her suit was filed, Pivarnick released a statement: “I suffered severe sexual harassment while working for EMS and was retaliated against by my management when I complained internally. It should go without saying that what I experienced has nothing to do with television or entertainment. Like all women, I am entitled to be treated with dignity and respect at work, and I should not have to accept unwanted sexual advances, crude comments about my body, or physical assault.” In response to news of her settlement breaking, Pivarnick stated, “I said when the case was filed that it had nothing to do with television or entertainment and that remains true. Sexual harassment is serious and has devastating consequences for so many women. It has for #MeToo. Although I experienced horrendous treatment at EMS, I’m pleased with the resolution of my case and I look forward to using my voice to speak about the need to protect all women from sexual harassment.”

New Jersey Governor Phil Murphy signed legislation this month that makes it a crime to use 911 as a tool to intimidate another person based on his or her race. The bill, which has already taken effect, was introduced to the State Senate on June 29, 2020. It amends and expands the state’s existing false public alarm statute to include false incrimination and filing a false police report as forms of bias intimidation when they are done in an attempt to intimidate or harass an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

IMG_5257-300x169Bias intimidation has long been a crime in New Jersey, and it occurs when a person is the target of a crime specifically because of his or her race or other protected status. When this additional layer of intent is present in the commission of a crime, it is commonly referred to as a “hate crime”. The penalties for committing a hate crime or bias intimidation are usually harsher and in addition to the penalties for committing the underlying offense. The reason for the harsher penalties is that the charge of bias intimidation is generally considered a crime of one degree higher than the most serious underlying offense. For instance, let’s assume that a Caucasian man ran his car into an African American man as he crossed the street, causing serious bodily harm, and the Caucasian man did so because of his race. Because assault by auto resulting in serious bodily injury is a crime of the fourth degree, the Caucasian driver is subject to 18 months in prison and a $10,000 fine for assault by auto. When the additional charge of bias intimidation is considered, he is now facing an additional 3-5 years in prison and $15,000 fine.

The state’s new law addressing racially-motivated 911 calls and false police reports appears to work slightly differently, however, by merging bias intimidation with the underlying crime. The statute (found at N.J.S. 2C:33-3), has been amended to add:

As drastic changes to the U.S. Postal Service (USPS) result in mail delivery delays, some postal workers have chosen to speak publicly about how these changes are impacting their work environment. Given the highly-politicized news coverage of postal service changes leading up to what is expected to be a largely mail-in presidential election, postal workers who refuse to remain silent may face retaliation from their employer.

IMG_0999-300x169Last month, Frank Bollinger, a union official representing approximately 900 members of South Jersey Area Local 0526, gave an interview to NJ Advance Media in which he described the problems he saw at work and the negative impact they were having on both his union members and the general public. After the interview was published, Mr. Bollinger received a threatening letter from his employer that indicated his job might be in trouble for speaking publicly about workplace issues. Specifically, management responded to Bollinger’s interview by sending him a letter demanding his appearance at an investigative interview. The letter had a threatening tone, reading in part that the investigative interview would be Bollinger’s “Day in Court” and that he was facing “a very serious matter.” After NJ Advance Media published a second story, outing the employer’s letter to Mr. Bollinger, management at the USPS backpedaled and backed down. Although the post office management has since canceled the investigative interview, Mr. Bollinger questioned whether he could be disciplined for speaking out or if his speech was protected under the National Labor Relations Act (NLRA).

The NLRA, however, does not apply to federal, state, or local government employees, many agricultural workers, or employees who work on interstate railroads and airlines. Congress enacted the NLRA in 1935 to protect the rights and general welfare of private sector employees, encourage collective bargaining, and curtail certain private sector labor management practices that were harming workers and the U.S. economy. It is considered an unfair labor practice for an employerto interfere with, restrain, or coerce employees in the exercise of their rights under the NLRA. Under the NLRA, employees have the right to organize, form labor organizations and labor unions, appoint representatives to engage in collective bargaining, and engage in other “concerted activities” for the purpose of collective bargaining or other workplace safety and fairness issues. Concerted activities are activities that bring workers together as a cohesive group to address work-related issues. Some examples of concerted activities are talking with co-workers about wages and benefits, circulating a petition to improve hours, participating in a concerted refusal to work in unsafe conditions, and joining with co-workers to talk directly to the employer, to a government agency, or to the media about problems in the workplace. An employer cannot fire, discipline, threaten or “coercively question” an employee for any of these activities. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action. However, a private sector employee is not protected under the NLRA if he or she says or does something egregiously offensive or knowingly false, or if he or she publicly disparages the employer without any underlying labor controversy.

This month the New Jersey Coalition Against Sexual Assault (NJCASA) released its report, “It’s Everywhere, It’s Everything: The Report of the New Jersey Coalition Against Sexual Assault’s 2020 Survey on Misogyny & Sexual Misconduct in New Jersey Politics.” The report publishes survey results received from employees within New Jersey’s political sphere regarding their experiences of sexual harassment and misconduct in the workplace. It also makes recommendations for improving workplace culture around sexual harassment and misconduct, including increased education and training, the development of transparent, predictable reporting processes, and the creation of a culture of accountability in NJ politics.

IMG_4994-300x168Survey respondents held a variety of positions within state politics, including advocates and activists, state government employees, campaign staffers, lobbyists, partisan political operatives, staffers to elected officials, those holding elected office themselves, legislature employees, and county and municipal government employees. The largest reporting groups were advocates and activists (16%), state government employees (13%), campaign staffers (13%) and partisan political operatives (13%). The vast majority of respondents were white (85%), non-immigrant (94%), heterosexual (81%), cisgender (79%), highly-educated (89%) women (78%). As the report acknowledges, this means that this particular study provides a window into the sexual harassment and misconduct experienced and witnessed by a highly privileged group, and indicates that despite holding such privilege, these respondents were often without the proper resources to prevent, report, or obtain justice in the face of harassment and misconduct in the workplace. The report stressed the importance of interpreting the results as framed and informed by one specific type of woman.

It comes as no surprise that most survey participants (57%) reported having either experienced and/or witnessed sexual harassment and misconduct during their work in NJ politics, and that women are far more often the targets of this misconduct and more likely to report it than men. By occupation, 75% of county government employees reported experiencing harassment, and 77% of campaign staffers and 76% of lobbyists reported witnessing it. When defining the specific types of harassment encountered, verbal remarks and misogynistic comments were the most frequently reported and combined make up 45% of the total. Three percent of respondents reported having been raped. State government employees reported that misogyny is “very prevalent” in their workplaces.

Many of us have heard of employee whistleblowers who go public with their employer’s egregious wrongdoings and suffer job loss or other retaliation for doing so. Both the federal government and the State of New Jersey offer protections to these conscientious employees.  For example, a federal law called the Whistleblower Protection Act of 1989 protects employees who disclose evidence of illegal or improper governmental activities. In New Jersey, we have enacted the Conscientious Employee Protection Act, which is viewed as one of the furthest reaching whistleblower laws in the country. Whistleblower laws such as these were enacted to assure that employees have protections when they do the right thing and oppose unlawful activity of their employer.  We, as a society, belief that employers and the government must play within the rules to protect people from being harmed from dangerous situations that can be caused by unlawful conduct.

IMG_3937-300x169There is perhaps no better example of the importance that whistleblowers can play in stopping governmental behavior that can cause harm to people than the allegations that Dr. Rick Bright has made against the government concerning its COVID-19 response. Dr. Bright was recently ousted from his prominent position as Director of the Biomedical Advanced Research and Development Authority (BARDA) for what he alleges was in retaliation for disclosing certain violations of law, gross mismanagement and waste of funds, abuse of authority and substantial and specific danger to public health and safety of the government in response to the Covid-19 pandemic.

Dr. Rick Bright recently began making headlines when he went public with his Complaint alleging Whistleblower Retaliation filed with the United States Office of Special Counsel. In the lengthy filing, Dr. Bright alleges that he was fired from his position within the Department of Health and Human Services (HHS) after he refused to spend money on unproven and potentially dangerous drugs that the White House was touting as promising treatments for Covid-19, and he resisted pressure to put in place a national program geared toward expanding public access to those drugs.

The COVID-19 pandemic has forced many New Jersey employees to work in unsafe work environments.  Facing increased risk of exposure, many employees are rightfully concerned that they will become infected or infect others because of their employer’s failure to have in place proper safety measures limiting the spread of COVID-19 at the workplace. Not surprisingly, many New Jersey workers who are forced to work in unsafe working environments have voiced objections to their employers, governmental officials and others concerning the unsafe work environments. With the increased number of employee complaints, many complainants are left wondering whether they have any legal protection against their employers who have taken adverse employment action against them in retaliation for their complaints. While we indeed may be living in unprecedented times, the COVID-19 pandemic is not a defense available to employers who choose to retaliate against employees for making reasonable and good faith complaints concerning unlawful workplace issues. Luckily for New Jersey workers, the state’s strong whistle-blower laws can provide employees with legal protections should they be fired from their jobs for complaining about unsafe work environments, improper quality of patient care or other unlawful business activities.

IMG_3937-300x169The New Jersey Conscientious Employee Protection Act is often described as being one of the most far-reaching, pro-employee, whistleblower statutes in the United States.  The purpose of the New Jersey anti-retaliation law is to protect whistleblowers from being retaliated against when they disclose, complain, object to or refuse to participate in certain actions at the workplace that he or she has a reasonable belief to be either unlawful, in violation of public policy or improper quality of patient care, should the employee be a licensed or certified health care professional.  A retaliatory action can manifest in the form of a demotion, suspension, termination or other forms of adverse action that would dissuade a reasonable worker from making or supporting a charge of unlawful retaliation.

Governor Murphy’s Executive Order No. 107 may also provide COVID-19 whistleblowers with additional legal support that their COVID-19 related complaints are protected under the New Jersey whistleblower law.  While Executive Order No. 107 bans many non-essential retail businesses from operating during the pandemic, it also places obligations upon essential or non-retail businesses and how they need to operate their business during the pandemic. For example, all businesses must accommodate their workforce, wherever practical, for telework or other work-from-home arrangements.  Additionally, for employees who cannot perform their job duties via telework or work-from-home, businesses should make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue. Many businesses are ignoring these requirements in running their business during the pandemic.

An employee may have a claim for whistle-blower retaliation under New Jersey state law if their employer takes adverse employment action against him or her for complaining directly to the employer or or reporting violations of New Jersey Executive Order 107 to a governmental agency.  Executive Order 107 was signed by Governor Murphy on March 21, 2020 in furtherance of concerted efforts to stop the spread of COVID-19.  Since its passing, there have been many news stories of New Jersey employees reporting that employers are conducting business as usual and in violation of their legal obligations under Executive Order 107. Employers who retaliate against their employees for “blowing-the-whistle” on violations of Executive Order 107 may also find themselves subjected to liability under the New Jersey Conscientious Employee Protection Act.

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The New Jersey Conscientious Employee Protection Act is considered one of the furthest reaching anti-whistleblower statutes in the country.  New Jersey’s whistle-blower protection law makes it unlawful for an employer to take adverse employment action (including, but not limited, to termination) against an employee for engaging in protected activity that is covered by the statute. There are many forms of protected activity recognized under the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34-19-3.  For example, an employee who discloses or threatens to disclose to a supervisor or public body practices or acts of the employer that he or she reasonably believes to be in violation of a law, rule or regulation promulgated pursuant to the law is engaging in protected activity under the statute.  Protected activity can also include objecting to or refusing to participate in any activity, policy or practice that the employee reasonably believes is “incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.” N.J.S.A. 34-19-3(c)(3).

The clear stated purpose of Executive Order 107 is to limit the spread and mitigate the impact of COVID-19.  In order accomplish the objections of the executive order, Governor Murphy ordered specific directives upon employers concerning how they must conduct their business operations during the coronavirus pandemic.  Among other things, Executive Order 107 directs the temporary closure of non-essential retail businesses.  It also mandates non-retail businesses to accommodate their workforce for telework or work-from-home arrangements. The term “telework” is defined in the order as “the practice of working from home or alternative locations closer to home through the use of technology that equips the individual to access necessary materials.”  The order further states that in situations in which employees cannot perform their job functions via telework or work-from home arrangements, the employer should make best efforts to reduce staff on-site to the minimal number of workers necessary to ensure the continuation of essential business operations.

An employee is protected from retaliation from his or her employer when he or she engages in protected activity under the New Jersey Law Against Discrimination.  But what constitutes protected activity?  Is any complaint covered?  Or does the employee complaint have to one that the complained of conduct violate the law?  The Supreme Court of New Jersey answered these questions concerning the standard in a 2013 decision in the case of Battaglia v. United Parcel Service Inc., in holding that an employee engages in protected activity when employee’s complaint is reasonable and made with a good faith belief that the complained of conduct violates the LAD.

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The Battaglia decision involved a case of sexual harassment retaliation.  Michael Battaglia had been employed with UPS since 1985, when he began as a driver and worked his way up the ranks. In 2001, Battaglia became the division manager of UPS’s South Division and he began supervising Wayne DeCraine. During this time, Battaglia became aware of DeCraine’s derogatory remarks about women, including sexually inappropriate comments about female employees at UPS. Battaglia took steps at that time, in accordance with UPS policy, to address DeCraine’s conduct and behavior. For unrelated reasons, thereafter, Battaglia was moved through several other departments at UPS and ultimately in 2004, returned to working with DeCraine – now with DeCraine supervising Battaglia as a division manager.

After some time, DeCraine began making what Plaintiff perceived to be a series of inappropriate sexual comments. While the comments were only made in the presence of male employees, the comments were about other female employees. Battaglia asserts that he spoke with DeCraine each time he made a comment and further met with their supervisor who had also heard these remarks.

A jury has found in favor of a former PNC Bank employee and awarded her damages $2.4 million is damages after finding she was victim of sexual harassment.  Damara Scott, a former wealth manager who worked at the PNC Bank branch in Glen Ridge, New Jersey, claimed in her lawsuit that a regular customer grabbed her and grinded into her buttocks.

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The incident concerning the alleged sexual assault took place on October 20, 2013.   Ms. Scott alleges that she was stalked by a well-known and regular customer, named Patrick Pignatello, who followed her to her car when she was attempting to leave work for the day.  Ms. Scott alleged that Mr. Pignatello proceeded to utter vulgar, sexist and racist insults and touched and grouped her from her behind.  Ms. Scott testified that Mr. Pignatello  stated to her, “No, I’m not following you.  I offer full services and I’m willing to please.”  She alleges he then pumped and grinded into her buttocks.  Ms. Scott claimed that she was able to get away from Mr. Pignatello and went to the back of her car to drop her on the trunk so she could try to fight him off.

At this time, the branch manager had informed one of the tellers that Mr. Pignatello had followed Ms. Scott to her car and ran out through emergency door towards Ms. Scott. The branch manager screamed to Ms. Scott, “Are you ok?  What did Pat do? Do you want me to call the police?”  Ms. Scott claims that she was so shocked and embarrassed she could not respond appropriately and told the branch manager that she just wanted to leave and then left.

In the midst of increased public scrutiny concerning allegations of a toxic work environment, NBC has announced that it will not seek to enforce any non-disclosure agreements (“NDA”) against any former or current NBC employee who wishes to speak openly about incidents of sexual harassment.  The announcement comes in response to recent reports that several former NBC employees are unwilling to speak publicly about their experiences of sexual harassment at NBC in fear that they would be breaching the NDA’s if they did so. While NBC maintains that the NDA agreements never prohibited employees from speaking out against sexual harassment, at least a few employees have been reported to believe differently.  The announcement should resolve any confusion of whether former or current NBC employees’ can speak freely about the NBC work environment. It also serves as a reminder to all employers of the significant legal risks associated with attempting to use NDA’s to keep employees silent about issues of workplace discrimination  


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The #Metoo movement has encouraged many victims of sexual harassment to openly and publicly discuss their experiences in working in a hostile work environment.  For far too long, victims of sexual harassment have remained silent and not hold the perpetrators responsible for the grave harms caused by their actions.  Many times, the decision to stay silent is voluntary. Victims would rather try to ignore what happened for fear that they will not be believed, their employer will not take any action, or even worse, suffer retaliation.  In fact, according to the report of the 2016 Task Force on the Study of Harassment in the Workplace, the least common response of a victim of harassment is to take some form of formal action, whether it be report the harassment internally or file a formal legal lawsuit.  In fact, approximately 75% of victims of sexual harassment will never talk to management, HR or a union representative about an incident of workplace sexual harassment.

Other victims of sexual harassment cannot speak freely about their experiences because they signed a written NDA contract with their former or current employer.  An NDA prohibiting an employee from discussing workplace sexual harassment is typically executed either when an employee starts his or her employment, or when the employment is separated.  When starting employment, many employers require the employee to sign employment agreements that include confidentiality of company trade secrets, proprietary information and other aspects of the employment that require confidentiality.  Some employers attempt to use these provisions to restrain current or former employees from disclosing incidents of workplace sexual harassment and deem them “confidential” under the NDA provision. While these confidentiality provisions in employment agreements are in most situations unenforceable as against public policy, many employees feel restrained by the provision and remain afraid to breach it.  Some employees are even afraid to speak to an employment attorney for advice and counsel concerning their rights under anti-discrimination laws. 

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