http://www.wongfleming.com/blog/ Copyright (C) 2008 wongfleming.comU.S. Supreme Court Requires Complaints to State “Plausible” Claims For Relief and Extends Qualified Immunity for High-Ranking Officials
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Qualified ImmunityA 5-4 decision this past May by the United States Supreme Court greatly restricts the ability of plaintiffs to sue high-ranking government officials for Constitutional violations including for unconstitutional discrimination.andnbsp;andnbsp; The decision contained two key holdings.andnbsp; The...http://www.wongfleming.com/blog/blog.php?nid=76&id=2692010-02-01Alexander v. Seton Hall University, 2009 N.J. Super. LEXIS 249 (App. Div. December 7, 2009)SexFollowing the U.S. Supreme Court’s lead in Ledbetter v. Goodyear Tire andamp; Rubber Co. the appellate court in New Jersey has ruled that plaintiffs suing for wage discrimination in New Jersey cannot rely on the “continuous trigger” theory by which each paycheck restarts the running of the...http://www.wongfleming.com/blog/blog.php?nid=49&id=2682010-01-15ADEA Claim Dismissed Absent Evidence That Age Was A “But-For” Factor in Employee’s TerminationAgeKelly v. Moser Patterson andamp; Sheridan LLP 2009 U.S. App. LEXIS 22352 (3d Cir. Oct. 9 2009) Absent evidence that age was a “but-for” factor in an employer’s decision to terminate an employee the mere fact that age may have been a secondary consideration is insufficient to sustain a claim...http://www.wongfleming.com/blog/blog.php?nid=55&id=2662009-11-10Defendant Cannot Be Awarded Fees Under The Offer-of-Judgment Rule In A Case Involving CEPA or the Prevailing Wage Act.Fee-ShiftingBest v. Candamp;M Door Controls Inc. 2009 N.J. LEXIS 1000 (2009) The Supreme Court of New Jersey recently held that a defendant/employer cannot be awarded attorney’s fees under New Jersey Court Rule 4:58 (the offer-of-judgment rule) in a case involving the New Jersey Conscientious Employee...http://www.wongfleming.com/blog/blog.php?nid=60&id=2672009-11-10Temporary Employee Not Hired As Full Time Employee May Recover DamagesTitle VIIDonlin v. Philips Lighting North America Corporation d/b/a Philips Lighting Company 2009 U.S. App. LEXIS 8408 (3d Cir. 2009)The Third Circuit Court of Appeals recently upheld a District Court’s decision finding a Company liable for failing to hire a temporary worker as a full time employee and...http://www.wongfleming.com/blog/blog.php?nid=39&id=2652009-08-20Provisions in Collective Bargaining Agreements that Require Union Members to Arbitrate Claims Arising Under the Age Discrimination in Employment Act of 1967 are EnforceableADEA14 Penn Plaza LLC Et Al. v. Steven Pyett Et Al. 2009 U.S. LEXIS 2497In this 5-4 decision the United States Supreme Court with Justice Thomas writing for the majority held that a provision in a collective bargaining agreement (CBA) that required the arbitration of discrimination claims brought...http://www.wongfleming.com/blog/blog.php?nid=72&id=2642009-08-18Third Circuit Appeals Court Rules that an Employer in Pennsylvania Can Not Compel an Employee to Arbitrate Sex Discrimination Claims Absent a Signed Express Agreement.DiscriminationAlyson Kirleis v. Dickie McCamey andamp; Chilcote P.C. 560 F.3rd 156 (3rd Cir. 2009)In Kirleis v. Dickie Plaintiff Alyson Kirleis sued her employer law firm alleging sex discrimination retaliation and hostile work environment claims under federal and state law. Ms. Kirleis was first employed...http://www.wongfleming.com/blog/blog.php?nid=14&id=2632009-08-03Confidential Settlement Entered Into By Plaintiff In Sexual Harassment and Discrimination Lawsuit Against A Governmental Entity Must Be Disclosed To The PublicConfidentiality AgreementsAsbury Park Press v. County of Monmouth 2009 N.J. Super. LEXIS 55 (App. Div. 2009)The Appellate Division recently held that the Open Public Records Act (“OPRA”) requires disclosure of a confidential settlement agreement entered into between the plaintiff in a sexual harassment and discrimination...http://www.wongfleming.com/blog/blog.php?nid=26&id=2622009-07-24Waiver of ERISA Benefits is Effective Only If It Conforms to Plan RequirementsERISAKennedy v. Plan Adm'r for DuPont Sav. andamp; Inv. Plan 2009 U.S. LEXIS 869 (Jan. 26 2009)The Employee Retirement Income Security Act of 1974 (ERISA) 29 U.S.C. § 1001 et seq. generally obligates administrators to manage ERISA plans "in accordance with the documents and instruments governing"...http://www.wongfleming.com/blog/blog.php?nid=47&id=2602009-07-23A Police Officer’s Request to Wear a Religious Headscarf with Her Uniform While on Duty was Properly Denied Because it Imposed an Undue Burden Upon the City of PhiladelphiaTitle VIIWebb v. City of Philadelphia 2009 U.S. App. LEXIS 7169 (3rd Cir. Apr. 7 2009)In Webb the Third Circuit affirmed the District Court’s ruling that a police officer’s request to wear religious garb with her uniform could not be reasonably accommodated without imposing an undue burden upon the City...http://www.wongfleming.com/blog/blog.php?nid=39&id=2592009-07-21Plaintiff Must Prove That He or She Suffered from an Adverse Employment When an Accommodation for a Disability is DeniedDiscriminationRoy M. Victor v. State of New Jersey New Jersey State Police et al. June 2009 401 N.J. Super. 596The Appellate Division held that a plaintiff must prove that he or she suffered from an adverse employment action when an accommodation for a disability is denied.The plaintiff is arguing that the...http://www.wongfleming.com/blog/blog.php?nid=14&id=2572009-07-01Plaintiff Must Prove That He or She Suffered from an Adverse Employment When an Accommodation for a Disability is DeniedAnswering Questions Regarding an Internal Investigation May Give Rise to a Title VII Retaliation ClaimTitle VIICrawford v. Metropolitan Government of Nashville and Davidson County Tennessee 2009 U.S. LEXIS 870 (2009)The United States Supreme Court recently held that when an employee discloses incidents of sexual harassment in response to questions posed during an internal investigation of another...http://www.wongfleming.com/blog/blog.php?nid=39&id=2562009-06-30If Defendant Voluntarily Grants Relief Rendering Case Moot, Plaintiff is not a “Prevailing Party” and not Entitled to Attorneys FeesADAMa v. Chertoff 547 F.3d 342 (2d Cir. 2008)In Ma the Second Circuit held that the Supreme Court’s holding in Buckhannon Bd. andamp; Care Home Inc. v. W. Va. Dep't of Health andamp; Human Res. 532 U. S. 598 (2001) whereby a party whose lawsuit brought about a “voluntary” change in the...http://www.wongfleming.com/blog/blog.php?nid=44&id=2542009-06-25Defendants May Not Stay the Litigation Rights of Plaintiffs in a Class Who Have Not Agreed to Arbitration, Although other Plaintiffs in the Class Had Agreed to ArbitrationArbitration AgreementsMendez v. Puerto Rican Int’l Cos. et al. 2009 U.S. App. LEXIS (3d Cir. January 26 2009)The Third Circuit Court of Appeals held that in order for a party to be the subject of a mandatory stay pending arbitration under § 3 of the Federal Arbitration Act 9 U.S.C. § 3 that party must have committed...http://www.wongfleming.com/blog/blog.php?nid=70&id=2552009-06-25School Districts May be Sued for Gender Discrimination Under Title IXTitle IXLisa Fitzgerald v. Barnstable School Committee et. al. 2009 LEXIS 592 (2009)A unanimous Supreme Court rules that School Districts may be sued for gender discrimination under Title IX based upon Section 1983 constitutional claims.In this appeal Judge Samuel Alito wrote the unanimous opinion for...http://www.wongfleming.com/blog/blog.php?nid=36&id=2532009-06-23Pension Plans Win: No Equal Credit For Pregnancy LeavesTitle VIIATandamp;T Corp. v. Noreen Hulteen S.Ct. (2009); 2009 U.S. LEXIS 3470 (May 18 2009)The Supreme Court awarded a victory to corporate pension plans on May 18 when it ruled that they need not give equal credit for a female employee’s pregnancy leave as for other forms of disability where that leave...http://www.wongfleming.com/blog/blog.php?nid=39&id=2522009-06-23Acceptance of Federal Funds by One Part of a State Agency Sufficient to Waive Eleventh Amendment Immunity for All Parts of That AgencyAbsolute ImmunityHaybarger v. Lawrence Cty. Adult Probation andamp; Parole 551 F.3d 193 (3d Cir. 2008)Closely examining basic principles of Eleventh Amendment Immunity the Third Circuit has held that acceptance of federal funds by one part of a state agency is sufficient to waive immunity for all parts of that...http://www.wongfleming.com/blog/blog.php?nid=85&id=2512009-05-15Statute of Limitations Begins to Run From the Time of the Discriminatory Acts, Not When the Consequences Become Most PainfulTitle VIIAlleyne v. American Airlines Inc. 548 F.3d 219 (2d Cir. 2008)In Alleyne the Second Circuit upheld the dismissal of a discrimination plaintiff’s claim as time-barred holding that the statute of limitations was triggered by the employer’s allegedly discriminatory acts and not when the...http://www.wongfleming.com/blog/blog.php?nid=39&id=2502009-05-14Third Circuit Abrogates “Sliding Scale” Standard of Judicial Review for ERISA ClaimsERISAEstate of Schwing v. The Lilly Health Plan 2009 U.S. App. LEXIS 7871 (3d Cir. April 14 2009)Prior to the Supreme Court’s recent decision in Metropolitan Life Ins. Co. v. Glenn 138 S.Ct. 2343 (2008) the Third Circuit held that courts deciding an ERISA plan participant’s appeal from the plan...http://www.wongfleming.com/blog/blog.php?nid=47&id=2492009-04-29Second Circuit Announces New Standard of Judicial Review for ERISA DisputesERISAMcCauley v. First Unum Life Ins. Co. 551 F.3d 126 (2d Cir. 2008)The Second Circuit Court of Appeals has recognized that its existing standard of review for ERISA disputes has been abrogated by the Supreme Court’s decision in Metropolitan Life Ins. Co. v. Glenn 128 S. Ct. 2343 (2008) and has...http://www.wongfleming.com/blog/blog.php?nid=47&id=2482009-04-22Statute of Limitations for a Hostile Work Environment Claim Runs from the Date Employee Left the Workplace, Not the Date of TerminationHostile Work EnvironmentToto v. Princeton Township 404 N.J. Super. 604 (App. Div. 2009) In Toto New Jersey’s Appellate Division clarified that with respect to a claim for hostile work environment the two-year statute of limitations begins to run from the last day that the plaintiff was at work and not from the date...http://www.wongfleming.com/blog/blog.php?nid=84&id=2472009-04-21Failure to Hire Applicant to Internet Job Posting is Sufficient Basis for Employment LawsuitWhistleblowers' RightsHasan v. U.S. Dep’t of Labor 545 F.3d 248 (3d Cir. 2008)The Third Circuit recently held that an employer’s failure to hire an applicant for allegedly retaliatory reasons is a sufficient basis for a lawsuit even where the applicant had merely responded to an internet advertisement and was not...http://www.wongfleming.com/blog/blog.php?nid=27&id=2462009-04-15Employees Have No Reasonable Expectation of Privacy for Password-Protected Information Stored on an Employer-Owned ComputerSearch andamp; SeizureState of New Jersey v. M.A. 402 N.J.Super. 353 (App. Div. 2008)In this criminal appeal New Jersey’s Appellate Division held that employees have no reasonable expectation of privacy for password-protected information stored on their employer’s computer and that employer-owned computers may be...http://www.wongfleming.com/blog/blog.php?nid=82&id=2442009-04-01Failure to complete an assignment on time is “just cause” for terminating state employee under the Civil Service ActEmployment LawWei v. State Civil Service Comm’n 961 A.2d 254 (Pa. Commw. Ct. 2008)In Wei the Commonwealth Court of Pennsylvania found that a state employee’s failure to complete an assignment on time may be just cause for termination.Wei a Department of Health epidemiologist for six years was assigned a...http://www.wongfleming.com/blog/blog.php?nid=13&id=2452009-04-01Financial Planners are Subject to New Jersey’s Consumer Fraud ActConsumer FraudFinderne Mgmt. Co. v. Dameo 402 N.J. Super. 546 (App. Div. 2008) New Jersey’s Appellate Division has held that absent uniform regulatory standards enforced by a governmental board or agency providers of financial planning services are not “learned professionals” exempt from the Consumer Fraud...http://www.wongfleming.com/blog/blog.php?nid=81&id=2422009-03-24Single, Patently Offensive Homophobic Comment May Be Sufficient To Create Hostile Work EnvironmentSexual OrientationKwiatkowski v. Merrill Lynch Docket No. A-2270-06T1 (App. Div. Aug. 13 2008) cert. denied 197 N.J. 259 (2008)The New Jersey Appellate Division recently held that a single comment of “stupid fag” which was made to a homosexual employee by his direct supervisor may be sufficient to create a...http://www.wongfleming.com/blog/blog.php?nid=53&id=2402009-03-16In Deciding To Award Attorney’s Fees, Courts Must Sometimes Balance Competing Public PolicesFee-ShiftingBest v. Candamp;M Door Controls Inc. 402 N.J. Super. 229 (App. Div. 2008)In this appeal the Appellate Division considered the interplay between two competing public policies each of which are fostered by awarding legal fees to the prevailing party. On the one hand the New Jersey Legislature...http://www.wongfleming.com/blog/blog.php?nid=60&id=2412009-03-16Mental Illness Can Toll Requirement that Employment Discrimination Plaintiffs Exhaust Administrative Remedies Before Filing SuitADAStella v. Potter 2008 U.S. App. LEXIS 22380 (2d Cir. Oct. 24 2008)In a recent decision the Second Circuit has re-affirmed that an allegation of mental illness may be sufficient to excuse a plaintiff’s failure to timely exhaust administrative remedies before filing suit for employment...http://www.wongfleming.com/blog/blog.php?nid=44&id=2382009-03-09Mental Illness Can Toll Requirement that Employment Discrimination Plaintiffs Exhaust Administrative Remedies Before Filing SuitERISA Fiduciary’s Repeated Misrepresentations Regarding Benefits May Entitle Employee to Equitable ReliefERISAPell v. E.I. DuPont De Nemours andamp; Co. Inc. 539 F.3d 292 (3d Cir. 2008)In Pell v. E.I. DuPont DeNemours andamp; Co. Inc. the Third Circuit held that an ERISA fiduciary who made repeated misrepresentations to an employee regarding the terms and conditions of his or her ERISA plan may be held...http://www.wongfleming.com/blog/blog.php?nid=47&id=2352009-02-18Second Circuit: Physical Assault by a Supervisor is not an Adverse Employment ActionTitle VIIMathirampuzha v. Potter 548 F.3d 70 (2d Cir. 2008)In Mathirampuzha the Second Circuit held that an employer was entitled to summary judgment with respect to employment discrimination claims raised against it because in part the physical assault allegedly suffered by the plaintiff at the hands...http://www.wongfleming.com/blog/blog.php?nid=39&id=2362009-02-18Second Circuit: Physical Assault by a Supervisor is not an Adverse Employment ActionIn Employment Discrimination Dispute, Employer’s Intentional Destruction of Records is Sufficient to Preclude Summary Judgment in Its FavorDiscriminationWood v. Pittsford Central School District 2008 U.S. App. LEXIS 24733 (2d Cir. Dec. 8 2008). In Wood v. Pittsford Central School District the Second Circuit Court of Appeals reversed the district court’s judgment granting summary judgment in favor of the defendants based in part on evidence...http://www.wongfleming.com/blog/blog.php?nid=14&id=2342009-02-13Employer Who Fails to Respond to Employee’s FMLA Application is Not Estopped From Subsequently Denying That Employee’s EligibilityFamily and Medical Leave ActSinacole v. IGate Capital 287 Fed. Appx. 993 (3d Cir. 2008)The United States Court of Appeals for the Third Circuit has held that a U.S. Department of Labor Regulation providing that an employee whose employer had failed to confirm her eligibility for leave under the Family and Medical Leave Act...http://www.wongfleming.com/blog/blog.php?nid=28&id=2322009-02-12Despite “Ministerial Exception,” Employment Agreement Between Church and Its Organist May Be Within Court’s JurisdictionSubject Matter JurisdictionThe Superior Court of Pennsylvania has held that notwithstanding the “ministerial exception” arising from the Free Exercise Clause of the First Amendment of the United States Constitution courts may have subject matter jurisdiction over an employment agreement between a church and its...http://www.wongfleming.com/blog/blog.php?nid=79&id=2332009-02-12Whistleblower Claims Brought under the Sarbanes-Oxley Act of 2002 are Subject to ArbitrationSarbanes-Oxley (SOX)The Second Circuit has held that whistleblower claims brought under the Sarbanes-Oxley Act (“SOX”) 18 U.S.C. § 1514A are arbitrable and thus may be subject to mandatory arbitration pursuant to an employment agreement. In Guyden v. Aetna Inc. a former Director of Internal Audit filed suit in...http://www.wongfleming.com/blog/blog.php?nid=64&id=2302009-02-09Whistleblower Claims Brought under the Sarbanes-Oxley Act of 2002 are Subject to ArbitrationNo Private Right of Action for Damages Against a Private Employer Under Pennsylvania’s Equal Rights AmendmentSexIn a case of first impression the Superior Court of Pennsylvania has held that Pennsylvania’s Equal Rights Amendment (“ERA”) does not provide a private right of action for damages against a private employer.Dillon v. Homeowner’s Select arose from alleged sexually offensive comments and conduct by...http://www.wongfleming.com/blog/blog.php?nid=49&id=2292009-01-28Allegedly Discriminatory Investigation, Resulting in Criminal Plea Bargain, is Not an “Adverse Employment Action”RetaliationIn Spinks v. Township of Clinton former police officers who had pled guilty to criminal charges for falsification of records sued the Township and its Chief of Police alleging unlawful retaliation in violation of the New Jersey Law Against Discrimination (“LAD”) and 42 U.S.C. § 1983 and age...http://www.wongfleming.com/blog/blog.php?nid=74&id=2282009-01-27Employer, Failing To Promulgate Effective Sexual Harassment Policies, May Be Directly Liable to Employee for Harassment by Co-WorkerSexThe New Jersey Appellate Division recently held that under New Jersey’s Law Against Discrimination (“LAD”) an employer that failed to promulgate effective sexual harassment policies and procedures may be held directly liable on a theory of negligence where its employee was sexually harassed by a...http://www.wongfleming.com/blog/blog.php?nid=49&id=2272009-01-19“Socially Inapt” Conduct is Not Necessarily the Equivalent of Sexual Harassment"SexIn Godfrey v. Princeton Theological Seminary the Supreme Court of New Jersey held that repeated unwelcome and “socially inapt” conduct by a person who is “socially tone deaf” does not necessarily amount to sexual harassment under the New Jersey Law Against Discrimination N.J.S.A. 10:5-1 et seq....http://www.wongfleming.com/blog/blog.php?nid=49&id=2252009-01-05Under the Pennsylvania Human Relations Act, Employee Who Fails to Establish a Claim for Workplace Discrimination May Still Establish a Claim for RetaliationRetaliationThe Commonwealth Court of Pennsylvania recently affirmed the determination of the Pennsylvania Human Relations Commission which found that although a complainant failed to establish that she was the victim of sex-based discrimination at work she nevertheless proved that she was unlawfully...http://www.wongfleming.com/blog/blog.php?nid=74&id=2242009-01-02A Person Seeking to Overcome the Strong Presumption of Public Access to Court Filings Must Specifically Prove the Need for Secrecy for Each DocumentConfidentiality and PrivilegeUnder New Jersey Law there is a “strong presumption” that documents filed in court are accessible to the public and a person seeking to overcome that presumption and to obtain a protective order barring their release must affirmatively prove by a preponderance of the evidence that the interest...http://www.wongfleming.com/blog/blog.php?nid=77&id=2262008-12-18 Plaintiff Stating a Claim for Punitive Damages is Entitled to Discovery Concerning Defendant’s Financial ConditionDamagesThe United States District Court for the Middle District of Pennsylvania has held that under the Federal Rules of Civil Procedure a plaintiff who states a claim for punitive damages need not make any factual showing in order to be entitled to discovery concerning the defendant’s financial...http://www.wongfleming.com/blog/blog.php?nid=45&id=2222008-12-16Disabled Employee, Suing His Employer for Failure to Accommodate His Disability, Must Prove that He Incurred Adverse Employment ActionDisabilityIn general a disabled plaintiff suing under the New Jersey Law Against Discrimination (“LAD”) must show: “(1) the plaintiff was handicapped or disabled within the meaning of the statute; (2) the plaintiff was qualified to perform the essential functions of the position of employment with or...http://www.wongfleming.com/blog/blog.php?nid=54&id=2212008-12-11In a Mixed-Motive Employment Discrimination Lawsuit, Plaintiff`s Prima Facie Case Fails if It is Irrefutable that Plaintiff is Not Objectively Qualified for the JobTitle VIIIn a case of first impression the Third Circuit reviewing the standards for stating a claim for mixed-motive discrimination under Title VII of the Civil Rights Act held that an employment discrimination claim proceeding under a mixed-motive theory must necessarily fail if it is irrefutable that...http://www.wongfleming.com/blog/blog.php?nid=39&id=2202008-12-04A Narrow and Fractured Majority of Second Circuit Judges Denies En Banc Rehearing Concerning City of New Haven’s Allegedly Discriminatory Refusal to Certify Promotional Exam ResultsTitle VIIIn Ricci v. DeStefano 118 firefighters took a promotional exam for Captain and Lieutenant positions within the New Haven Fire Department. Although 41 applicants took the Captain examination 16 of which were minority only two minority applicants scored well enough to be eligible for promotion to...http://www.wongfleming.com/blog/blog.php?nid=39&id=2192008-12-03A Narrow and Fractured Majority of Second Circuit Judges Denies En Banc Rehearing Concerning City of New Haven’s Allegedly Discriminatory Refusal to Certify Promotional Exam ResultsArbitration Provision in Employment Contract Does Not Apply to Employee’s Claims Arising Under Separate Stock Purchase AgreementArbitration AgreementsThe New Jersey Appellate Division recently held that an employee cannot be compelled to arbitrate claims arising under a stock purchase agreement based on an arbitration provision in a separate employment agreement entered into at the same time even if the two agreements were closely...http://www.wongfleming.com/blog/blog.php?nid=70&id=2172008-12-02Cash Balance Defined Benefit Plans Do Not Violate ERISAERISAIn 2006 Congress amended the Employee Retirement Income Security Act of 1974 (“ERISA”) to specifically allow for cash balance defined benefit plans. The amendment however applies only to periods beginning on or after June 29 2005. In Hirt v. Equitable Ret. Plan the Second Circuit joined the...http://www.wongfleming.com/blog/blog.php?nid=47&id=2162008-11-20Public Employee’s In-Court Testimony Protected by First AmendmentCivil RightsThe Third Circuit has clarified that public employers may not retaliate against employees who testify against the employer in open court and that doing so is a violation of the employee’s First Amendment free speech rights. Specifically the Court rejected an argument that public employers are...http://www.wongfleming.com/blog/blog.php?nid=32&id=2152008-11-14Union Contract Requiring Employee to Choose Between Arbitration and EEOC Investigation of Discrimination-Related Grievance Does Not Violate Title VIITitle VIIThe United States Court of Appeals for the Second Circuit recently held that a union contract which provided that disputes were not arbitrable if a charge is filed with the Connecticut Commission on Human Rights and Opportunities did not violate Title VII of the Civil Rights Act of 1964 (“Title...http://www.wongfleming.com/blog/blog.php?nid=39&id=2142008-11-14An Employee’s Failure to Return to Work Cannot be Deemed Job Abandonment Until Five Days from the Last Day of an Approved Leave of AbsenceUnemployment BenefitsPursuant to N.J.A.C. 12:17-9.11(b) an employee absent good cause is disqualified for unemployment benefits and considered to have voluntarily abandoned employment upon leaving her job for five or more consecutive work days. In Espina v. Bd. of Review 402 N.J. Super. 87 (App Div. 2008) the New...http://www.wongfleming.com/blog/blog.php?nid=73&id=2132008-11-12Under the ADEA, an Employer Bears the Burden of Proving That Its Challenged Conduct was Based on Reasonable Factors Other Than AgeADEAThe provisions setting forth the general prohibition of age discrimination under the Age Discrimination in Employment Act of 1967 (“ADEA”) 29 U.S.C. §§ 623(a)-(c) (e) are subject to a separate provision § 623(f) creating exemptions for employer practices “otherwise prohibited under subsections...http://www.wongfleming.com/blog/blog.php?nid=72&id=2082008-11-12Under the ADEA, an Employer Bears the Burden of Proving That Its Challenged Conduct was Based on Reasonable Factors Other Than AgeAn Employee’s Failure to Return to Work Cannot be Deemed Job Abandonment Until Five Days from the Last Day of an Approved Leave of AbsenceThreshold for a Religion-Based Hostile Work Environment Claim is No More Stringent Than For Sexually or Racially Hostile Work Environment ClaimsReligiousReversing the Appellate Division and assessing for the first time the sufficiency of a plaintiff’s proofs in the context of an essentially religion-based hostile work environment claim the New Jersey Supreme Court recently held that consistent with New Jersey’s strong policy against any form of...http://www.wongfleming.com/blog/blog.php?nid=52&id=2112008-11-12Under the Equal Access to Justice Act, A Prevailing Party Is Entitled to Recover Paralegal Fees at Prevailing Market RatesFee-ShiftingCourts have consistently determined that in the context of fee-shifting statutes an award of “attorney’s fees” include work performed by paralegals. In Richlin Security Service Co. v. Chertoff the U.S. Supreme Court held that under the Equal Access to Justice Act a prevailing party is entitled...http://www.wongfleming.com/blog/blog.php?nid=61&id=2072008-10-30Under New Jersey’s Law Against Discrimination, Terminated Employee May Sue Former Employer for Post-Termination Conduct Unrelated to the WorkplaceDiscriminationIn Burlington N. andamp; Santa Fe Ry. Co. v. White decided 2006 the U.S. Supreme Court held that Title VII’s anti-retaliation provision “creates a distinct cause of action that need not be related to the workplace” but rather “extends beyond workplace-related or employment-related retaliatory...http://www.wongfleming.com/blog/blog.php?nid=14&id=2062008-10-27Under New Jersey’s Law Against Discrimination, Terminated Employee May Sue Former Employer for Post-Termination Conduct Unrelated to the WorkplaceEEOC Submissions Need Not Contain “Some Magic Combination of Words” in Order to be Deemed a “Charge” Triggering an Employee’s Right to Sue Under the ADEAEmployment LawThe Age Discrimination in Employment Act (“ADEA”) prohibits an individual from bringing suit under that statute until 60 days have passed since he or she filed a “charge alleging unlawful discrimination” with the Equal Employment Opportunity Commission (“EEOC”). In Federal Express Corp. v....http://www.wongfleming.com/blog/blog.php?nid=13&id=2042008-10-15EEOC Submissions Need Not Contain “Some Magic Combination of Words” in Order to be Deemed a “Charge” Triggering an Employee’s Right to Sue Under the ADEAEmployee Whose Job Responsibilities Include Reporting Security Breaches is not a “Whistle-Blower” Under CEPAWhistleblowers' RightsIn a recently published decision the Appellate Division of the Superior Court of New Jersey held that a Security Operations Manager who objected to the disposal of New Jersey Transit blueprints for bridges tunnels a rail operations center underground gas lines and NJT buildings in bins on a...http://www.wongfleming.com/blog/blog.php?nid=27&id=2032008-10-13Even If a Movant’s “Statement of Undisputed Facts” is Uncontradicted, Judge May Not Simply Assume That Each of the Facts is True Without Examining Actual Record Before the CourtDiscriminationSummary judgment is only appropriate if there is no genuine issue as to any material fact in the record. A motion for summary judgment must be considered on the basis that the nonmoving party’s assertions of fact are true granting all favorable inferences to the nonmoving party. However this does...http://www.wongfleming.com/blog/blog.php?nid=14&id=2022008-10-08Disability Pensions That Credit Less-Experienced and Younger Employees with Additional Years of Service Do Not Violate the ADEAAgeThe Supreme Court recently upheld the practice of crediting certain disabled employees with additional service even where many older employees are ineligible for those credits.andnbsp; In so doing the Court rejected a claim that this relatively common practice violated the Age Discrimination in...http://www.wongfleming.com/blog/blog.php?nid=55&id=2012008-10-06Claims Brought Under the New Jersey Civil Rights Act are not Subject to the New Jersey Tort Claims Act’s Notice of Claim RequirementTort Claims ActIn Owens the Supreme Court of New Jersey affirming the Appellate Division held that the notice of claim requirement under the New Jersey Tort Claims Act (“TCA”) does not apply to actions brought under the New Jersey Civil Rights Act (“CRA”). Plaintiffs Brian Owens Sr. and his wife Shannon...http://www.wongfleming.com/blog/blog.php?nid=66&id=1982008-10-02After-Acquired Evidence of Resume Fraud Cannot Limit Non-Economic Damages in Discrimination LitigationDisabilityA recent decision by the New Jersey Supreme Court Cichetti addresses two distinct and important issues in the context of employment discrimination claims under the New Jersey Law Against Discrimination (LAD).andnbsp; The first aspect of the decision makes clear that after-acquired evidence of...http://www.wongfleming.com/blog/blog.php?nid=54&id=1992008-10-02After-Acquired Evidence of Resume Fraud Cannot Limit Non-Economic Damages in Discrimination LitigationEmployer May Be Liable for Failure to Reasonably Accommodate a Disabled Employee, Even Where the Employee Has Not Requested an AccommodationDisabilityThe Americans with Disabilities Act (“ADA”) 42 U.S.C. § 12101 et seq. requires an employer to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified [disabled job applicant or employee] unless . . . the accommodation would impose an undue hardship...http://www.wongfleming.com/blog/blog.php?nid=54&id=1972008-08-26Employee, Allegedly Fired Because She Had an Abortion, May Sue for Gender Discrimination Pursuant to Title VII and the Pregnancy Discrimination ActSexThe United States Court of Appeals for the Third Circuit recently held that the protections afforded to pregnant women under Title VII of theandnbsp; Civil Rights Act 42 U.S.C. § 2000 et seq. as modified by the Pregnancy Discrimination Act (“PDA”) 42 U.S.C. § 2000e(k) also extend to women who...http://www.wongfleming.com/blog/blog.php?nid=49&id=1962008-08-07ERISA Fiduciary’s Conflict of Interest Should Be Weighed in Determining Whether Benefits Were Improperly DeniedERISAThe Supreme Court has held that where an ERISA fiduciary both evaluates claims and pays for benefits that fiduciary is operating under a conflict of interest. Moreover the Court held that this conflict of interest must be weighed as one factor in determining whether the fiduciary abused its...http://www.wongfleming.com/blog/blog.php?nid=47&id=1952008-07-22Arbitration Agreements, Reserving Judicial Remedies For Employers But Not For Employees, May Be EnforceableArbitration AgreementsThe United States Court of Appeals for the Third Circuit recently held that an arbitration clause contained in an employment agreement was not unconscionable even though in the event of an employment-related dispute the agreement limited the employee to arbitration but reserved for the employer...http://www.wongfleming.com/blog/blog.php?nid=70&id=1942008-07-16Employment Discrimination Complaints Must Make Sufficient Allegations to “Plausibly Suggest” the Plaintiff Is Entitled to ReliefReligiousA panel of the Third Circuit recently extended the federal pleading standards announced by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly 127 S. Ct. 1955 (2007) and the Third Circuit’s subsequent decision in Phillips v. County of Allegheny 515 F.3d 224 (2008) to the employment...http://www.wongfleming.com/blog/blog.php?nid=52&id=1932008-07-0942 U.S.C. § 1981, Prohibiting Racial Discrimination With Respect to the Right to Contract, Also Prohibits Retaliation Against a Person Who Complains About Discrimination Incurred by OthersTitle VII42 U.S.C. § 1981 first enacted just after the Civil War prohibits race-based discrimination with respect to the right to make and enforce contracts. In CBOCS West the U.S. Supreme Court held that this provision implicitly prohibits retaliation against a person who has complained about a...http://www.wongfleming.com/blog/blog.php?nid=39&id=1922008-07-0342 U.S.C. § 1981, Prohibiting Racial Discrimination With Respect to the Right to Contract, Also Prohibits Retaliation Against a Person Who Complains About Discrimination Incurred by OthersEvidence of Discrimination Against Nonparties By Supervisors Who Played No Role in the Adverse Employment Action Challenged By Plaintiff May Be AdmissibleAgeIn Sprint v. Mendelsohn the U.S. Supreme Court held that in an employment discrimination case testimony of nonparties as to discrimination they incurred at the hands of supervisors may be admissible even where those supervisors played no role in the adverse employment action implicated by the...http://www.wongfleming.com/blog/blog.php?nid=55&id=1902008-07-01The ADEA Prohibits Retaliation Against a Federal Employee For Complaining About Age DiscriminationAgeIn a 6-3 split decision the United States Supreme Court held that the federal sector provision of the Age Discrimination in Employment Act (ADEA) 29 U.S.C. § 633a(a) prohibits retaliation against a federal employee for complaining about age discrimination.In October 2002 Myrna Gomez-Perez then...http://www.wongfleming.com/blog/blog.php?nid=55&id=1892008-06-17Improper Denial of Qualified Employee’s Request for Transfer May Constitute “Adverse Employment Action”Title VIIThe United States Court of Appeals for the Second Circuit recently held that a denial of a transfer request may constitute an “adverse employment action” for purposes of Title VII of the Civil Rights Act if the transfer sought (and denied) would have involved an objective and significant...http://www.wongfleming.com/blog/blog.php?nid=39&id=1882008-06-05The First Amendment May Bar Employment Discrimination Suits Brought Against Religious EmployersTitle VIIIn Rweyemamu the Second Circuit formally adopted the “ministerial exception” to employment cases which prevents judicial inquiry into sensitive religious matters. By adopting the ministerial exception the Second Circuit found that religious employees of religious organizations may not bring...http://www.wongfleming.com/blog/blog.php?nid=39&id=1862008-06-02