New Jersey Employment Lawyers BlogArticles Posted in Law Against Discrimination
New Jersey Passes NDA Bill Prohibiting Confidentiality of Sexual Harassment Claims
On March 18, 2019, Governor Murphy officially signed S-121 into law that makes any provision in an employment which waives any substantive or procedural right of an employee unenforceable as against New Jersey public policy. Under the new law, New Jersey employers will no longer be able to conceal the underlying details of sexual harassment and other claims of discrimination through the use of non-disclosure or confidentiality provisions in settlement agreements. The new Non-Disclosure law also protects employees from being retaliated against for not entering into any agreement or contract that requires them to waive their substantive or procedural rights.
The Non-Disclosure bill will apply to all workplace discrimination claims alleged or brought under the New Jersey Law Against Discrimination. The New Jersey Law Against Discrimination prohibits workplace discrimination on the basis of protected traits such as gender, disability, race, national origin and other protected classes of people. It also prohibits employers from retaliating against employees who oppose discrimination or participate in harassment investigations. Finally, it makes employers responsible for the harm caused to employees who are forced to work in a hostile work environment.
The Non-Disclosure bill is being touted a significant win for New Jersey employees’ rights and the #MeToo movement. The law was sponsored by Senators Loretta Weinberg and Nia Gill an Assembly members Valerie Vainieri Huttle, John F. McKeon and Jon M. Brammick. The law will not be administered retroactively. Instead, it will only apply to employment contracts that are entered into, renewed, modified or amended on or after the law’s March 18, 2019 effective date. This means any contract to arbitrate or settlement agreement requiring the underlying claims of lawsuit to be confidential signed before March 18, 2019 can still be enforced by an employer against an employee.
Who is a Whistleblower under New Jersey law?
New Jersey maintains a strong public policy in protecting employees who speak out against the employer’s for engaging in unlawful business activities. The law recognizes that employers are responsible when they try to silence and hurt persons who oppose workplace conduct or activities that endangers people in the workplace and the public at large. However, while New Jersey law clearly provides for immense legal protections for employees against workplace retaliation, this does not mean anyone who is fired for complaining to his or her employer will be successful in a claim for wrongful termination.
New Jersey first enacted its state whistleblower law, the New Jersey’s Conscientious Employee Protection Act (“CEPA”) in 1986. CEPA is broad in scope and considered as one of the farthest reaching state whistleblower laws in the entire country. CEPA is remedial legislation and is entitled to liberal construction by our courts.
Under of New Jersey’s whistleblower law, a worker cannot be terminated for opposing or refusing to participate in unlawful or certain other improper conduct of the employer. By placing stiff penalties upon employers who violate the whistleblower law, the New Jersey anti-retaliation statute tries to discourage employers from engaging in illegal or unethical workplace activities. The state law applies to private and public employers and employees. It also can apply to independent contractors in certain circumstances depending on the specific facts and circumstances of the business relationship.
Congress Introduces FAIR Act Act to Curb Forced Arbitration of Employment Claims
The rampant abuse of arbitration agreements, and the injustice that these agreements have created for employees, is finally being recognized and addressed. The Forced Arbitration Injustice Repeal Act, or “FAIR Act,” was introduced to the United States House of Representatives by Representatives Hank Johnson and Richard Blumenthal on February 28, 2019. The FAIR Act would, among other things, outlaw forced arbitration clauses in employment contracts or agreements. The FAIR Act would, instead, require that the employee agree to arbitration only after the dispute has arisen in order for any arbitration agreement to be enforceable.
If passed as written, the Fair Act would not have retroactive effect as to disputes that arose prior to its passing; however, the bill would have retroactive effect in that it would apply to arbitration clauses in employment contracts that were entered into prior to the bill’s passing. In other words, if the bill passes, all disputes arising thereafter would not be subject to an arbitration clause included in an employment agreement.
The current state of arbitration across the country is a classic case of too much of a good thing. In theory, arbitration would serve as an option afforded to both parties to a dispute, with each party given the opportunity to weigh the pros and cons of that option to determine if they wished to have their dispute resolved through arbitration. In reality, however, this is not how arbitration works most of the time. In the majority of arbitrations, one party was not truly given an option and did not understand anything about the process prior to “agreeing” to have any future dispute resolved through that process. As a result, many people never get their day in court, because they unwittingly signed away their right to do so.
New Jersey Sexual Harassment Law: Revisiting Aguas v. State of New Jersey
In a 2015 case entitled Aguas v. State of New Jersey, the New Jersey Supreme Court adopted the federal standard regarding employer liability for workplace sexual harassment. For the first time, the New Jersey Supreme Court held that an employer can avoid liability in situations where the workplace sexual harassment did not result in any tangible employment action if the employer can show (1) it has strong anti-harassment policies and effective reporting mechanisms and (2) the plaintiff unreasonably failed to take advantage of the policies and reporting procedures.
The Aquas ruling dramatically changed the manner in which sexual harassment cases have been litigated in New Jersey. It has also served as a valuable reminder to all New Jersey employers of the importance of having strong anti-harassment policies in place to protect employees from sexual harassment.
The plaintiff in Aguas v. State of New Jersey, Ilda Aguas, was a corrections officer in the New Jersey Department of Corrections. During her employment, Ms. Aguas began to experience objectionable sexual harassment at the hands of her supervisor, Lieutenant Darryl McClish. On multiple occasions, McClish both verbally and physically harassed Ms. Aguas, such as by asking her to go to a motel with him, forcing himself on her in imitation of a “lap dance”, and holding Ms. Aguas’s arms behind her back while pressing his genitals against her body and asking “what are you going to do?” Ms. Aguas objected to this behavior directly to McClish, who refused to cease the sexually harassing behavior. Ms. Aguas was additionally harassed by two other supervisors.
Katie Brennan responds to Verniero report
FOR IMMEDIATE RELEASE
TRENTON (February 6, 2019)–Following is a statement from Katie Brennan in response to the findings of Peter Verniero’s inquiry into the vetting and hiring processes of the Murphy administration’s transition office:
“It’s clear from the report that there was a lack of accountability and effective policies and procedures to address a glaring personnel problem in the Transition. I appreciate the recommended reforms and I look forward to seeing additional recommendations from the Joint Select Legislative Oversight Committee so that comprehensive reform can be implemented.
New Jersey Sexual Harassment Law: Revisiting Gaines v. Bellino
It is not uncommon when a sexual harassment claim is filed for controversy to arise regarding who exactly is liable for the harassment. In 1993, the New Jersey Supreme Court held in the case ‘Lehmann v. Toys ‘R’ Us’ an employer may be liable if the sexual harasser was acting within the scope of his or her employment or if the employer was negligent for allowing the existence of a hostile work environment. After the Lehman decision, questions remained concerning how victims of sexual harassment could prove that their employer was negligent and therefore liable for the sexual harassing conduct of one of its employees. In a 2002 case Maria Gaines v. Joseph Bellino, the New Jersey Supreme Court provided further clarification concerning an employer’s liability for workplace sexual harassment and established a framework for courts to determine whether an employer has an effective anti-harassment policy.
In Gaines v. Bellino, the plaintiff Maria Gaines was an employee of Hudson County Correctional Facility when she began to experience sexually harassing behavior from her supervisor, Captain Bellino. In 1990, Mr. Bellino forcibly kissed Ms. Gaines against her will. Ms. Gaines objected to the assault, and immediately reported it to several coworkers and some other higher level officials of the facility. She was encouraged to report the behavior, but expressed fear of retaliation as well as of Bellino himself. This fear was shared by multiple coworkers, and Gaines was further advised that the facility’s supervisors would most likely not believe her reports of the harassment. Because of this, Gaines chose not to submit a formal report regarding the behavior. Over the next few years, Gaines was subject to additional harassing incidents. On one occasion, Bellino brought up the initial assault in front of a superior officer, adding that he could even rape Gaines and no one would believe her. In early 1995, Ms. Gaines reported the conduct to the warden of the facility. No investigation was conducted until the middle of 1996, and no action was taken until March of 1997, when Bellino was suspended for 30 days.
Ms. Gaines filed a legal complaint against Bellino and the Hudson County Correctional Facility regarding the harassment in 1998. The trial court granted summary judgment in favor of the defendants noting that the Hudson County Correctional facility maintained an anti-harassment policy and mechanisms for reporting harassment, proven by posters that had been exhibited in the facility as well as a section of the employee handbook that dictated the reporting process. Ms. Gaines appealed this decision, as she argued that the anti-harassment policies were ineffective and not implemented correctly. The question that the New Jersey Supreme Court was charged with answering was whether the Hudson County Correctional Facility’s anti-harassment policy in place were enough to protect an employer from being held accountable for sexual harassment?
New Jersey Sexual Harassment Law: Revisiting Lehmann v. Toys ‘R’ Us
In the midst of a national discussion regarding sexual harassment in the workplace, the laws prohibiting such egregious behavior as well as the methods of reporting and investigating related complaints have come under scrutiny. Many businesses across the country are reviewing their anti-harassment policies to become legally compliant and limit their liability when sexual harassment occurs at their workplace. In New Jersey, a claim of sexual harassment was first recognized in 1993, in the landmark New Jersey Supreme Court case Lehmann v. Toys ‘R’ Us. Commonly referred to as Lehman by New Jersey employment lawyer and judges, this case set the standard for stating a cause of action for a claim of sexual harassment that created a hostile work environment.
Sexual harassment cases are typically divided into two categories: quid pro quo harassment or harassment that generates a hostile work environment. Quid pro quo sexual harassment occurs when an employer or supervisor attempts to make an employee submit to sexual demands as a condition of his or her employment. Sexual harassment that creates a hostile work environment was ill defined prior to 1993, which made Lehmann v. Toys ‘R’ Us the landmark case for sexual harassment cases in New Jersey.
In 1986, Ms. Theresa Lehmann’s employment with Toys ‘R’ Us was drastically altered upon the hiring of Don Baylous as the Director of Purchasing Administration. Under his supervision, Ms. Lehmann and her female coworkers began to experience pervasive sexual harassment that varied from sexualized comments about Ms. Lehmann’s breasts to an instance where Mr. Baylous physically pulled Ms. Lehmann’s shirt over her head to expose her breasts. Ms. Lehmann attempted to report the conduct to several managers, but very little was done to remedy the situation. Instead of addressing Mr. Baylous’s behavior, Ms. Lehmann was offered a transfer to a different department. She rejected this, and later resigned as a result of the harassing conduct and the retaliation she experienced from reporting it. In response to this inadequate managerial reaction, Ms. Lehmann submitted a formal legal complaint of sexual harassment that was initially heard by a trial court. The trial court dismissed all causes of action except battery. Ms. Lehmann appealed, and the appellate court reversed the trial court’s dismissal of her claims of a hostile work environment brought on by sexual harassment, which they remanded for further fact finding. The case eventually found its way to the New Jersey Supreme Court, where it developed into a monumental case in New Jersey court history.
Katie Brennan files Emergent Application Seeking to End the State of New Jersey’s Use of Strict Confidentiality Directive
Smith Eibeler, LLC, on behalf of our client, Katherine Brennan, has filed an Order to Show Cause For Temporary and Preliminary Restraints against the State of New Jersey (hereinafter, the “State”), from (1) enforcing the “strict confidentiality directive” found in N.J.A.C. 4A:7-3.1(j) against Ms. Brennan and any witnesses in the EEO/AA investigation being launched in response to her December 4, 2018, testimony before the Legislative Select Oversight Committee (“LSOC”)(hereinafter, the “EEO/AA Investigation”); (2) requiring Ms. Brennan to participate in any EEO/AA investigation until after this litigation and any criminal proceedings resulting from Ms. Brennan’s allegation of sexual assault are completed; (3) requiring Ms. Brennan and other witnesses in the EEO/AA Investigation to sign the “strict confidentiality directive” form; (4) requiring the EEO/AA to investigate the numerous violations of the State’s Policy Prohibiting Discrimination in the Workplace (“State Policy”) as set forth in the Complaint; and (5) declaring the “strict confidentiality directive”of N.J.A.C. 4A:7-3.1(j) as null and void.
For the past year, the State has refused to conduct any investigation into any of Ms. Brennan’s reporting that she had been raped by Alvarez. Ms. Brennan exhausted all possible internal avenues of recourse and received no aid or support. Having no other option, Ms. Brennanwas compelled, as a last resort, to bring her allegations into public light. On October 14, 2018, her story was published in The Wall Street Journal. The article laid out in detail not only the rape Ms. Brennan had endured, but also her extensive efforts to prompt the State, through complaints to numerous high level State officials, to take action.
Ms. Brennan’s act of publicly telling her story accomplished what her numerous internal complaints and reports could not: it triggered investigations. As a result of the October 14 Wall Street Journal article, in or about October 2018, numerous investigations and/or reviews were launched in various departments of State and county government, including: (1) an ongoing review by the Middlesex County Prosecutor’s Office of the criminal investigation conducted by the Hudson County Prosecutor’s Office (“HCPO”) into Ms. Brennan’s criminal complaint; (2) a review by Attorney General Gurbir Grewal and the Office of Public Integrity and Accountability (“OPIA”) into Hudson County Prosecutor Esther Suarez’s involvement in the investigation of Ms. Brennan’s allegations of sexual assault; (3) the ongoing investigation by the LSOC into how sexual misconduct complaints are handled by the state, as well as hiring practices; (4) Governor Murphy’s directive to the Division of EEO/AA to review policies and procedures for addressing allegations of sexual misconduct; and (5) an investigation on behalf of the Office of the Governor by former Supreme Court Justice Peter Verniero into the hiring of Alvarez.