Former Police Detective Receives Nearly 1 Million in Settlement

Former Jackson Police Officer, Detective Howard Bogan, recently received a settlement of nearly 1 million dollars from Jackson Township. Bogan’s complaint in the Superior Court of New Jersey alleged that after he was called to testify against two officers charged with perjury in connection to a narcotics case, other officers in the police department began to harass him. Bogan states that the other officers repeatedly called him a “rat,” “snitch,” and “untrustworthy.” One instance of harassment referenced in the complaint included Bogan coming into work one day and finding a toy mouse which represented a “rat.” Bogan claimed that due to the unlawful, illegal, and unethical conduct of his fellow officers, he suffered mental stress including panic attacks, anxiety attacks, and post-traumatic stress disorder. The harassment started in November 2007 and by August 2008, Bogan stated that he could no longer take the harassment and go into work. Bogan remained out of work from August 2008 to September 2009.

Bogan’s complaint resulted in Jackson Township signing a settlement in the amount of $950,000. It is reported that Jackson had to borrow $500,000 from the Ocean County Municipal Joint Fund in order to obtain payment for Bogan.

Jackson’s Mayor, Michael Reina, comments that hopefully this is a lesson learned for Jackson and other towns, and harassment and bullying is not something any township would condone.

Choose Your Forum Wisely

The Appellate Division of the New Jersey Supreme Court recently affirmed a dismissal of a plaintiff’s complaint based on the Conscientious Employment Protection Act (CEPA). The plaintiff, David Schmidt, alleged retaliation after he blew the whistle against his employer, Celgene Corporation, and CVS/Caremark Corporation, one of Celgene’s distributors. The primary reason why the Appellate Division affirmed the dismissal of the complaint was based on the fact that Mr. Schmidt first filed his lawsuit in Texas, and when he received an unfavorable ruling on the choice of law, he then filed in New Jersey. Mr. Schmidt’s actions appeared to look like “forum shopping,” a practice the courts strongly frown upon. Further, filing the CEPA claim in Texas first made Mr. Schmidt miss the one year filing deadline in New Jersey.

It is unusual that Mr. Schmidt filed his CEPA claim in Texas before considering New Jersey as New Jersey law provides stronger CEPA protections for employees. When there is more than one acceptable venue for a claim, it is important to keep in mind strategy and evaluate which jurisdiction your claim is more likely to prevail in.

Do I Really Need an Employment Lawyer?

Some employees do a little Googling and think they are qualified to extract big settlements or severance packages from their employers without hiring an employment lawyer. Can it be done? Honestly, no, not really. Should it be attempted? Absolutely not. An employment lawyer is a specialist in handling employment law matters, just as a cardiac surgeon is a specialist in performing heart surgery. You wouldn’t perform heart surgery on yourself, would you?

This point is driven home by a recent decision of the Appellate Division of the New Jersey Superior Court. On May 1, 2012, the Appellate Division affirmed a lower court decision concluding that the plaintiff-employee failed to state a cognizable claim under the New Jersey Law Against Discrimination (LAD) and the Conscientious Employment Protection Act (CEPA), and had not established a cause of action for either LAD or CEPA. The employee represented himself in the case. The appellate court agreed with the trial court’s decision that the employee had not stated his claims correctly, nor provided enough evidence to sustain them.

If you believe you have a valid claim against your employer, seek the guidance and counsel of a lawyer who specializes in employment law matters. The employee mentioned above made simple mistakes which caused him to lose his case. Hiring an employment lawyer, while not guaranteeing him victory, would have at least given him a fighting chance.

EEOC Issues Guidance on Age Discrimination Defense

The Age Discrimination in Employment Act (ADEA) prohibits discrimination based on age and applies to employees and job applicants who are 40 years of age and older. One of the grounds for liability under the ADEA is called a “disparate impact” claim. This is where an employee demonstrates that a seemingly neutral decision by an employer has a disparate impact on older employees. As a defense to this type of claim, employers are permitted to argue that the differential treatment was due to reasonable factors other than age.

The Equal Employment Opportunity Commission (EEOC) recently issued new regulations which clarify the “reasonable factors other than age” defense under the ADEA. The new regulations, which go into effect today, provide employers with guidance on ensuring that their employment practices are in fact for reasons other than age. For example, the new regulations urge employers to take into consideration the following non-exhaustive list:
• The extent to which the factor is related to an employer’s stated business purpose;
• The extent to which an employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
• The extent to which the employer limited a supervisor’s discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
• The extent to which the employer assessed the adverse impact of its employment practice on older workers;
• The degree of harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm in light of the burden of undertaking such steps.

The above considerations provide guidance on what an employer must demonstrate to successfully utilize the “reasonable factors other than age” defense. The new rule prevents employers from routinely and mechanically utilizing the “reasonable factors other than age” defense in every decision it makes which disparately impact older employees. Instead, the new rule encourages employers to take into consideration whether their decision to implement a particular policy was truly due to factors other than age, and the possible harm the policy may have on older employees. We believe the EEOC’s clarification on the defense is one that keeps in mind the rights of older employees and the susceptibility to discrimination they frequently face at work

NJ Court Expands Definition of Discrimination

The Appellate Division of the New Jersey Superior Court recently expanded the scope of employees protected from employment discrimination. The Court ruled that anti-discrimination protection extends to employees who are perceived to be, but aren’t, members of a protected class. For example, if your employer thinks you are Jewish, but you aren’t, you are still protected from anti-Semitism at work.

The case was brought by Myron Cowher, a truck driver for Carson & Roberts Site Construction & Engineering. Mr. Cowher claims that his supervisors subjected him to anti-Semitic remarks on a daily basis. While Mr. Cowher is not Jewish, either by ethnicity or by faith, he felt that these remarks caused a hostile work environment.

The primary issue analyzed by the Appellate Division was whether an individual may bring a suit against an employer for discrimination based on a perceived membership in a protected class. The Court noted that, in the area of disability discrimination, an employee is protected if her employer believes she is disabled, even when she is not. This is the concept of “perceived disability discrimination.” Other states and the federal courts have recognized this concept as well. The Appellate Division reasoned that there is no basis to grant protection to individuals who are perceived to be disabled, but not to employees who are perceived to be members of other protected categories.

The purpose of anti-discrimination law is to eradicate discrimination, wherever it lurks. Whether you are actually a member of a protected group or whether your employer just thinks you are — you still have the right to work in an environment free of discrimination. The Court’s expansion of the definition of discrimination makes perfect sense.

Supervisors May Be Sued Under The FMLA

On January 31, 2012, the U.S. Court of Appeals for the Third Circuit outlined factors to be used when determining whether a supervisor at a public agency can be subject to individual liability under the Family Medical Leave Act (FMLA).

The Family Medical Leave Act allows employees to take unpaid and job protected leave for up to 12 weeks per year. This Act allows employees to balance work and family responsibilities by entitling them to take leave for certain medical or family reasons. FMLA applies to all public agencies and companies with 50 or more employees. To be eligible under the FMLA, an employee must have worked for the employer at least 12 months. An employee may use the FMLA for the following reasons:

• Give birth or care for a newborn
• During placement of a child for adoption or foster care
• To care for an immediate family member with a serious health condition
• To take medical leave when the employee is unable to work due to a serious health condition

Debra Haybarger, a former employee of Lawrence County Adult Probation and Parole sued her former supervisor under the FMLA after she was terminated from her position as office manager. Ms. Haybarger, who suffered from type two diabetes, heart disease, and kidney problems, received poor performance reviews from her supervisor which included comments stating that Haybarger needed to improve her overall health and cut down on sick days. Haybarger was eventually fired by the President Judge of the Lawrence County Court of Common Pleas after Haybarger’s supervisor advised the Judge that termination was necessary.

Haybarger sued the County of Lawrence, Lawrence County Probation, and her supervisor under the FMLA (along with the Americans with Disabilities Act, Pennsylvania Human Relations Act, and the Rehabilitation Act). The District Court held that Haybarger’s supervisor could not be seen as an “employer” under FMLA since the supervisor did not have “sufficient control over the conditions and terms of employment” and that an employer has sufficient control over an employee if they have authority to fire them.

The Court of Appeals disagreed and ruled that although a supervisor may not have ultimate authority over employment practices, they are not relieved from liability. The Court reasoned that the totality of circumstances must be examined when determining whether an individual supervisor can constitute an “employer.” In Haybarger’s case, while the Court concluded that even if the supervisor did not have final authority to fire Haybarger, the supervisor acted in the interest of the county, carried out his role as a supervisor, exercised control over her work, had authority to discipline her, and recommended to the Judge that she be terminated. These factors were enough for the Court of Appeals to conclude that the supervisor is considered an “employer” and could be held individually liable under the FMLA.

This decision is notable in the employment law context as it expands the circumstances in which supervisors can be held liable for violating employee rights. Supervisors and managers should be aware that just because they may not have direct authority over an employee, they are not shielded from liability when they take actions against employees which are contrary to federal laws such as the FMLA.

Good News for Employment Lawyers and Their Clients

The New Jersey Supreme Court recently issued a unanimous decision confirming that a court’s application of contingency enhancements in awarding attorney fees is not only appropriate, but essential in cases where the relief sought is equitable in nature. The Court’s decision, which combined two different appeals, comes as a victory to many lawyers who take cases on a contingency basis, including employment lawyers.

Traditionally, each party in a suit is responsible for their own fees, unless there is an applicable statute that warrants “fee-shifting.” A contingency enhancement is a mechanism which allows the Court to increase the fee to take into account the risk of nonpayment when an attorney’s compensation is substantially contingent on a winning outcome. The Court relied primarily upon Rendine v. Pantzer, an employment discrimination case, in reaching its decision. The Rendine Court spelled out three important policy purposes for fee-shifting, which include:

1. Allowing litigants equal access to the courts.
2. Provide these individuals with the resources to enforce protected rights in court.
3. Providing these litigants with adequate representation.

By way of background, the first case on appeal, Walker v. Guiffre, involved a woman who sued multiple car dealerships in New Jersey under the Consumer Fraud Act. During the case, her attorneys pursued extensive discovery and expended a lot of time and effort which resulted in the accumulation of high attorney fees. After winning the trial, Walker’s attorneys requested counsel fees and a contingency enhancement, which the trial court allowed. The Appellate Division overturned the trial court’s award of attorney fees for numerous reasons, including that counsel did not justify the hours utilized, there was little analysis of the reasonableness of the hourly rate charged, there was no justification of the 45% contingency enhancement.

The second case, Humphries v. Powder Mill Shopping Plaza, involved a complaint about the lack of handicap accessibility at a shopping center. The case ultimately settled on most issues and the issue of attorney fees and costs was submitted to the Court to resolve. The trial court concluded that the time expended on the matter was reasonable, especially as the rate charged in the amount of $350 an hour was low for this type of case. The Court applied a 20% contingency enhancement on the award of counsel fees. On appeal, the Appellate Division concluded that Humphries failed to meet a more stringent U.S. Supreme Court standard for justifying a contingency enhancement.

On January 25, 2012, the New Jersey Supreme Court reinstated the contingency enhancements in both cases. The Court emphasized the Humphries case, where the relief sought by the Plaintiff was about more than money, it was about effecting a change which would benefit all handicapped individuals who would have been denied access to the shopping area in the future.

In the field of employment law, fighting for employee rights is not just about obtaining monetary compensation. It has a broader purpose of ensuring that protected classes of people are not discriminated against. The Court’s recent decision affirms that lawyers who do this work on a contingency fee basis deserve enhanced fees to buffer the risk they take by accepting these cases.