New Jersey Law Prohibits Refusal to Renew Contract Because Employee is Over 70 Years Old

The New Jersey Law Against Discrimination (LAD) prohibits employers from discriminating against employees on the basis of age. Among other things, it prohibits employers from firing, refusing to hire or requiring an employee to retire because of their age.

However, the LAD expressly does not prohibit employers from refusing to hire or promote a person over 70 years old. As a result, someone who is not hired or promoted because they are over seventy years old does not have an age discrimination claim under the LAD.

On April 23, 2009, in Nini v. Mercer County Community College, the New Jersey Appellate Division ruled that this over-seventy exception does not apply to a company’s failure to renew an employment contract. In other words, a company violates the LAD if it decides not to renew an employment contract of an individual who is over 70 years old based on the employee’s age.

The case involves Rose Nini, who worked as an executive assistant for Mercer County Community College (MCCC) from 1979 to June 30, 2005. She worked pursuant to a series of renewable employment contracts. In June 2005, MCCC chose not to renew her contract for an additional three years term. At the time, Ms. Nini was 73 years old.

According to Ms. Nini, she had substantial evidence of age discrimination. For example, during the nearly 25 years before MCCC told her it might not renew her contract, she never received a poor performance review. Her supervisor then made it clear that he thought she should not be working at her age, that other employees her age were considering retiring, and that he thought she should retire too. Several MCCC department heads also discussed “age and incompetence,” “dead wood,” and made jokes about getting rid of the “oldest employees.” Ms. Nini also heard that MCCC’s Human Relations Director said the college needed to “get rid of the old-timers” and “bring in new blood.”

In analyzing the LAD’s exception regarding the right not to hire or promote an employee over seventy years old, the Appellate Division stated that the nonrenewal of a contract is the equivalent of a termination, rather than a refusal to hire. Previous New Jersey cases have recognized there is little or no difference between failing to extend or renew an employment contract and a decision to fire an employee. Thus, the Court ruled that the over-seventy exception does not apply to a decision not to renew an employment contract, meaning it violates the LAD if an employer chooses not to renew the contract of an employee because she is over 70 years old. Accordingly, the Court sent the case back to the lower Court so Ms. Nini could further pursue her age discrimination case.

After-Acquired Evidence Inadmissible Until After Jury Finds Wrongful Termination

Earlier this month, New Jersey’s Appellate Division ruled that it is improper to present a jury with evidence regarding “after-acquired evidence” until after it has determined that an employer violated New Jersey’s Conscientious Employee Protection Act (CEPA). CEPA is New Jersey’s whistleblower law.

After-acquired evidence is when a company learns during a discrimination or retaliation lawsuit that the employee did something while he worked for the company that would have been grounds for firing him. If the employer can prove it would have fired the employee based on the new evidence, the employee’s damages for lost salary and benefits are cut off from the date on which the employer learned the new information.

Even when it applies, the after-acquired evidence defense does not prevent an employee from proving a wrongful termination claim, does not impact damages for salary and benefits the employee lost before the employer discovered the wrongdoing, and does not limit damages for emotional distress damages in any way. It only cuts off damages for lost salary and benefits starting from the date on which the employer discovered the new information.

The reason why the after-acquired evidence bars some damages, but does not completely bar proving a wrongful termination claim, is to deter and punish unlawful discrimination and retaliation, while still penalizing an employee who is guilty of misconduct that would have caused him to lose his job irrespective of any discrimination or retaliation. Accordingly, it applies only if the employer can prove that the employee’s wrongdoing was so severe that it actually would have fired the employee, solely on that basis, when it learned of the wrongdoing.

On June 2, 2009, in Redvanly v. Automated Data Processing, Inc., the Appellate Division ruled that it is improper for a judge to allow a jury to hear any evidence supporting an after-acquired evidence defense until the jury has decided whether the employee was wrongfully discharged. In that case, Diane Redvanly sued her former employer, Automated Data Processing, Inc. (ADP) and her former supervisor, Richard Feeney, claiming they fired her in violation of CEPA.

In 1996, Ms. Redvanly began working for ADP in Clifton, New Jersey. In December 2002, she attended a seminar regarding the Sarbanes-Oxley Act, which requires publically traded companies to institute internal financial controls to ensure accountability. Based on what she learned at the seminar, Ms. Redvanly told Mr. Feeney that she intended to disclose the fact that ADP was over billing some of its clients.

According to Ms. Redvanly, during a meeting the next day, Mr. Feeney engaged in a “profanity-laced, verbal assault” of her, including complaining about her management style. Mr. Feeney continued to demonstrate his anger toward Ms. Redvanly for several weeks, culminating in him firing her because of her “recent behavior.” Ms. Redvanly then sued ADP and Mr. Feeney, claiming they fired her in violation of CEPA.

At the trial, the jury unanimously found that Ms. Redvanly failed to prove her CEPA claim because she did not engage in any legally protected whistleblowing activity. However, the Appellate Division found that the verdict might have been tainted by evidence ADP presented suggesting that Ms. Redvanly committed resume fraud. Specifically, on her employment application for the job with ADP, Ms. Redvanly indicated that she worked at NYNEX Mobile Communications, Inc. (NYNEX), and claimed she left NYNEX because her position was eliminated. She also claimed she never had been fired from another job. In actuality, NYNEX fired Ms. Redvanly. Ms. Redvanly sued NYNEX for national origin and gender discrimination, and eventually settled that case.

In other words, ADP asserted an after-acquired evidence defense. It claimed it would not have hired Ms. Redvanly in the first place if she had told the truth about why she was separated from her job at NYNEX, and it would have fired her if it had learned about her false statements on her resume.

The Appellate Division recognized that after-acquired evidence is relevant and admissible only with respect to the issue of damages. Accordingly, it ruled that the lower court should have separated the trial two phases. In the first phase, the jury should have determined whether ADP retaliated against Ms. Redvanly. During that phase, the jury should not have been told anything about Ms. Redvanly’s alleged resume fraud, since that information is irrelevant to whether ADP retaliated against her, and was likely to unfairly prejudice the jury against her.

If the jury found retaliation, then there should have been a second phase of the trial to determine Ms. Redvanly’s damages. During that phase, ADP should have been permitted to present evidence regarding the alleged resume fraud only if there was evidence that ADP would have not have hired her, or would have fired her, if it had known more about the circumstances of her separation from NYNEX. The Court questioned whether the after-acquired evidence defense was even viable since there was no way for the jury to know whether NYNEX fired Ms. Redvanly rightfully or wrongfully, since she and NYNEX settled that case.

By separating trials at which the after-acquired evidence doctrine applies into two phases, employees should have a fair opportunity to prove their retaliation or discrimination claims, while employers will have an opportunity to limit the economic damages if they can establish an after-acquired evidence defense. While the after-acquired evidence doctrine can often seem unfair to an employee who was fired illegally, keeping that evidence out of the case until after the jury decides whether the employer violated the law seems to be a fair compromise between the interests of employers and employees.

Employees Working in Other States Can Sue Under New York’s Anti-Discrimination Laws

If you have been the victim of unlawful discrimination or harassment, you might be able to sue your employer for under New York law even if you never worked in New York.  At least according to one New York appellate court, employees can bring discrimination claims under New York’s anti-discrimination law if they are residents of New York or if the company made its discriminatory decision in New York, even if their jobs were out of state.  For example, a New York State resident who works in New Jersey or Connecticut can sue his or her employer for discrimination under New York law.

Among other things, the New York Human Rights Law (NYHRL) prohibits employment discrimination and harassment based on an individual’s age, race, creed, color, national origin, sexual orientation, military status, gender, disability, genetic characteristics or marital status. The New York City Human Rights Law (NYCHRL) prohibits discrimination and harassment based on virually all of those categories, as well as discrimination based on gender identity, partnership status, alienage/citizenship status, and status as a victim of domestic violence, stalking or sex offense.  Both laws prohibit companies from retaliating against employees who complain about legally prohibited discrimination or harassment.

The NYHRL specifically states that it applies to acts committed outside of New York State if the employee is a resident of New York.  Thus, New York residents can sue companies for violating the NYHRL even if they worked in another state.

In addition, under certain circumstances, even non-residents who worked outside of New York can sue their employers under the NYHRL.  Likewise, in some situations employees who work outside of New York City can sue their employer’s under the NYCHRL.  Specifically, on May 7, 2009, in Hoffman v. Parade Publications, the Appellate Division of the New York Supreme Court ruled that out-of-state residents can sue their employers under the NYHRL or the NHCHRL if the company made the discriminatory decision in New York State or New York City, respectively.

Hoffman involves an employee, Howard Hoffman, who worked for Parade Publications from 1992 until Parade fired him on January 1, 2008. Mr. Hoffman worked for Parade based out of its Atlanta, Georgia office.  When Parade fired Mr. Hoffman, he was 62 years old.

On October 2, 2007, while in Atlanta, Mr. Hoffman received a telephone call from Parade’s president and publisher in New York, who told him Parade was closing its Atlanta office, and firing him and his assistant for economic reasons.  Mr. Hoffman sued under the NYHRL and the NYCHRL, claiming he was an exceptional employee, the oldest employee in Parade’s newspaper relations group, and that Parade actually fired him because of his age.  He also claimed that Parade reassigned his job duties to another employee who was “considerably younger” than him.

The court held that although the NYCHRL is “limited to acts occurring within the boundaries of New York,” if the discriminatory employment decision was made in New York, then the discrimination “occurred” in New York.  The court further explained that it would be “contrary to the purpose of both the NYHRL and the NYCHRL to leave it to other states to address acts of discrimination that occurred in New York.”  Accordingly, it allowed Mr. Hoffman’s case to proceed in New York, under New York State and New York City law, because he alleged that Parade made the discriminatory decision to fire him because of his age in New York City.  Thus, an employee who has never set foot in New York can potentially sue a company under New York law if the company made an adverse discriminatory decision about the employee in New York.

Discrimination Against Caregivers

Earlier this month, the United States Equal Employment Opportunity Commission (EEOC) published suggested best practices for companies to minimize the chance of violating the rights of employees who are also caregivers. Those suggested practices supplement the guidelines the EEOC issued in 2007 regarding when it is unlawful for an employer to discriminate against an employee who is a caregiver.

Although there is no law in New York or New Jersey which expressly prohibits discrimination against employees because they are caregivers, many state and federal laws provide protection to caregivers under certain circumstances. For example, the New Jersey Law Against Discrimination, the New York Human Right Law, the Family & Medical Leave Act (FMLA), the New Jersey Family Leave Act, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act (ADA) all provide some protection to caregivers.

The EEOC’s 2007 guidelines regarding employees with caregiving responsibilities recognize that, in part due to anti-discrimination laws, women now make up nearly half of the workforce in the United States. In addition, while the role of men as caregivers has substantially increased over the past 50 years, women still disproportionately have the primarily responsibility for caring for children and elderly parents, in-laws, and spouses. As a result, employment practices that disfavor caregivers disproportionately harm women.

The EEOC guidelines also recognize that many women in the work force face a “maternal wall” or “glass ceiling,” largely as a result of their dual roles as employees and caregivers, but also due to other gender stereotyping and discrimination. For example, women are drastically underrepresented in corporate management. Gender discrimination, such as discrimination based on the assumption that women are less dedicated to their jobs because they are more likely to be primary caregivers, violates New York, New Jersey federal anti-discrimination laws.

The EEOC’s guidelines provide many examples of evidence of discrimination against women based on the gender stereotype that they are more likely to be caregivers, including whether the employer (1) only asks female applicants if they are married or have young children (2) makes stereotypical or derogatory comments about pregnant women or working mothers, (3) treats women less favorable soon after it becomes aware they are pregnant, (4) assigns women with caregiving responsibilities to less prestigious or lower-paid jobs, or (5) treats men with caregiving responsibilities less favorably than female caregiving employees.

The guidelines further recognize that it violates the law to make employment decisions based on assumptions and stereotypes about women as caregivers. The EEOC mentions many common negative assumptions and stereotypes about women in the workplace, including the assumption that (1) women are less reliable because of childcare responsibilities, (2) female employees with children do not work long hours and are less committed to their jobs, (3) working mothers do not want to relocate to another city, (4) mothers do not want to work full time, and (5) pregnant women are less committed to their job or are unable to perform certain physical tasks. While employers are not permitted to make employment decisions based on discriminatory assumptions about women, it is generally not unlawful to make decisions based on an employee’s actual job performance or limitations, even if the job performance is unsatisfactory or the limitations are due to the employee’s caregiving responsibilities.

Employers can also violate the law by treating male caregivers worse than female caregivers. For example, it can be unlawful for a company to provide job flexibility to women to accommodate their caregiving responsibilities, but not to offer the same flexibility to similarly situated men.

The EEOC guidelines also discuss unlawful harassment of caregivers, and unlawful retaliation against individuals who oppose discrimination, including the fact that it is impermissible to retaliate against a woman who objects to gender stereotyping. In addition, they discuss the fact that the ADA protects many caregivers since it is unlawful to discriminate against employees due to their relationship or association with a disabled individual, including employees who care for a disabled child, spouse, or parent.

In contrast to the EEOC’s 2007 guidelines, its May 2009 suggested best practices go beyond what is legally required, and instead suggest proactive and progressive corporate policies and practices. According to the EEOC, implementing its suggested policies is likely to enhance productivity, reduce absenteeism, reduce costs, improve employee retention, and otherwise increase profits. The EEOC’s suggest numerous best practices, including:

• Training managers about the legal obligations regarding employees with caregiving responsibilities;
• Developing, disseminating, and enforcing a strong Equal Employment Opportunity (EEO) policy;
• Responding to complaints of discrimination efficiently and effectively;
• Protecting against retaliation;
• Seeking out job candidates with caregiving responsibilities;
• Removing barriers to individuals who are returning to work from leaves of absence;
• Encouraging employees to request flexible work arrangements;
• Making overtime as family-friendly as possible; and
• Reassign job duties employees are unable to perform due to pregnancy or caregiving responsibilities.

If you have experienced discrimination or harassment at work due to your status as a caregiver, you should consider contacting an employment lawyer to discuss your legal rights.

Frequently Asked Questions About New Jersey’s Conscientious Employee Protection Act

Q.  What is the Conscientious Employee Protection Act?

A.  The Conscientious Employee Protection Act (CEPA) is New Jersey’s whistleblower law.  It is one of the broadest anti-retaliation laws in the country.  It provides broad protection to employees who report illegal and unethical workplace activities.  Its primary purposes are to encourage employees to report illegal and unethical workplace activities, and to discourage employers from engaging in illegal and unethical conduct.

Q.  Who is protected by CEPA?

A.  Virtually all employees working in New Jersey are protected by CEPA.  In fact, many individuals who consider themselves independent contractors are covered by it.

Q.  What employers are covered by CEPA?

A. Virtually all New Jersey employers, including private companies and public employers, are subject to CEPA.

Q.  What type of whistleblower activity is protected under CEPA?

A.  Under CEPA, an employee is protected from retaliation for engaging in a broad range of activity, including:

1. Disclosing (or threatening to disclose) to a supervisor or a public body an employer’s act, policy or practice that the employee reasonably believes is illegal, fraudulent or criminal;
2. Providing information to, or testifying before, a public body investigating an employer’s act, policy or practice that the employee reasonably believes is illegal, fraudulent or criminal; and
3. Objecting to or refusing to participate in an activity, policy or practice the employee reasonably believes is illegal, fraudulent or criminal, or is incompatible with a clear mandate of public policy concerning public health, safety or welfare or protection of the environment.

Q.  Does an employee have to be correct to be protected by CEPA?

A.  No.  An employee only needs to have an objectively reasonable belief that the employer’s activity fits into one of the categories listed above.  For example, if an employee objects because she reasonably believes his employer is committing tax fraud, CEPA protects the employee retaliation even if the company actually was complying with the law.

Q.  What type of damages can I recover if I prevail in a CEPA case?

A.  If you win a CEPA case, you can recover your economic losses, including past and future lost wages and benefits.  You can also recover damages for your emotional distress, attorney’s fees, and the other costs of the litigation.  In some cases, you can also receive punitive damages.

Q.  Does New York have a law similar to CEPA?

A.  Not exactly.  Although New York has a whistleblower law, it is not even close to as broad as CEPA, and the courts have interpreted it very narrowly.  However, numerous state and federal laws give New York employees protection from retaliation, including the New York Human Rights Law, the New York City Human Rights Law, the Family & Medical Leave Act (FMLA), Title VII, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Fair Labor Standards Act (FLSA), and the Sarbanes-Oxley Act (SOX).

Q.  What do I do if I’ve been the victim of retaliation?

A.  Whistleblower and other anti-retaliation laws can be very complicated.  If you believe you have been fired, demoted, skipped for a promotion, harassed, or otherwise mistreated because you blew the whistle on your employer, it is highly recommended that you contact an experienced employment lawyer in your area.

Tenure Protection for Clerical Employees in New Jersey Public Schools

In the United States, the vast majority of employees are employees at-will, meaning they can be fired for almost any reason, as long as the decision is not the result of unlawful discrimination, retaliation, a breach of an employment contract, or some other form of wrongful discharge.  However, certain employees of public schools eventually gain much greater protection — the protection of tenure laws.

When most people think about tenure laws, they think of school teachers.  In many states, including both New York and New Jersey, teachers attain tenure after they teach in the public school system for more than three years.

But at least under New Jersey law, in addition to teachers, secretarial and clerical employees working for public schools are eligible to attain tenure.  The applicable tenure statute states that “[a]ny person holding any secretarial or clerical position or employment under a board of education of any school district” shall attain tenure after “a period of employment of three consecutive calendar years.”

Once an employee attains tenure, the board of education cannot fire him or her unless he or she engages in “neglect, misbehavior or other offense.”  Moreover, a tenured employee can only be fired for “inefficiency, incapacity, unbecoming conduct, or other just cause, and then only after a hearing . . . after a written charge or charges.”

My law firm currently represents an individual, Bernard Sharkey, who was fired by the Washington Township Board of Education after he worked for it for more than three years. Mr. Sharkey sought to enforce his rights under the tenure laws.

Although Mr. Sharkey’s official job title was “financial officer,” he basically functioned as a bookkeeper.  After an administrative hearing, the New Jersey Office of Administrative Law (OAL) issued an opinion concluding that Mr. Sharkey’s job was tenure eligible because his job was clerical in nature.  In doing so, the OAL adopted the definition of clerical from Webster’s Dictionary: “one employed to keep records or accounts or to perform general office work.”

The New Jersey Department of Education subsequently affirmed the OAL’s finding that Mr. Sharkey’s position was tenure eligible, but ruled that he had attained tenure, finding he was, in fact, employed for more than three years.  Accordingly, the Commissioner of Education ordered Washington Township to reinstate him.

In reaching its conclusion, the OAL relied on a previous decision of the New Jersey Appellate Division, Barnes v. Board of Education of Jersey City, 85 N.J. Super. 42, 45 (App. Div. 1964).  Barnes recognizes that the term “clerical position,” as used in the tenure statute, must be given a broad interpretation because tenure statutes are intended to secure better public service by providing job security to covered public employees.

Several other administrative cases which follow Barnes use similar broad definitions of the term “clerical position.” For example, one such decision recognizes that two appropriate definitions are “an official responsible for correspondence, records, and accounts and vested with specified powers or authority” and “one employed to keep records or accounts or to perform general office work.” Another administrative opinion relied on two other similar dictionary definitions of the term clerk: “a person employed, as in an office, to keep records, accounts, files, handle correspondence, or the like,” and “a person who works in an office performing such tasks as keeping records and files.” In Sharkey, the OAL adopted the second of those two definitions.

The protection the tenure law provides to clerical employees in public schools is very important. It provides job security to tenured employees, which is a particularly valuable employment law right at any time, but even more so in our current economic climate. In doing so, it encourages well qualified individuals who might otherwise seek higher paying jobs in the private sector to work for the public schools.

Washington Township has appealed the Commissioner of Education’s decision in Sharkey.  Its appeal is currently pending.

Courts Can Increase Employment Law Jury Awards to Offset Adverse Tax Consequences of Lump Sum Payment

When a plaintiff wins a discrimination lawsuit, the judge or jury is supposed to award economic and emotional distress damages that compensate the employee for his or her losses. In particular, damages for past and future lost wages and benefits are supposed to compensate the employee for the economic losses caused by the illegal discrimination or retaliation. Courts often refer to this as making the employee whole.

However, because higher incomes are taxed at higher rates, an employee who receives an award for lost wages can end up paying much more in taxes than she would have paid if she had not experienced the discrimination or retaliation. In those cases, employees are not made whole for their economic losses. Rather, they end up with less money in their pockets after taxes than if the unlawful employment practice had not occurred.

For example, if an employee making $100,000 per year is illegally fired, a jury might award her $400,000 for past and future lost income. That individual would receive the $400,000 in one lump sum, rather than the $100,000 per year she would have received if she had remained employed. But because the income tax rate increases as your total annual income increases, that individual would pay significantly more in taxes than if she had remained employed and received $100,000 each year. The higher the total lost wages award, the greater the impact of this problem.

On January 30, 2009, the United States Court of Appeals for the Third Circuit (the federal appellate court that covers New Jersey) addressed this problem. Specifically, the Court recognized that under the appropriate circumstances a judge should increase lost wages damages awards in employment law cases to offset this adverse tax consequence. The Third Circuit ruled that federal district courts can, in their discretion, award an employee “an additional sum of money to compensate for the increased tax burden a back pay award may create.” However, the court made it clear it was not suggesting that there should be a presumption that an employee is entitled to additional money to offset this negative tax consequences. Rather, courts have the option to increase a judgment if the employee proves she suffered a negative tax consequence as a result of a lump sum judgment for lost wages and doing so is fair under the circumstances.

The case, Eshelman v. Agere Systems, Inc., involves a disability discrimination lawsuit under the American’s with Disabilities Act (ADA). However, the decision appears to apply to claims of discrimination due to race, color, sex (gender), national origin and religion in violation of Title VII of the Civil Rights Act of 1964 (Title VII), and its reasoning would apply equally to other discrimination and retaliation claims under federal law.

It is unclear why the Court resisted creating a presumption of a tax offset, even though this adverse tax treatment occurs in the vast majority of employment law cases in which the plaintiff is awarded lost wages stemming from more than one year. However, the case is an important step in the right direction, since it allows federal judges to increase judgments to offset this tax penalty, and help make more victims of discrimination and retaliation economically whole.

Federal Government Subsidizing Health Care Benefits For Laid Off Employees

A new amendment to an important employment law was included in the American Recovery and Reinvestment Act, a law which you might know better as President Obama’s most recent Economic Stimulus package.  Under that law, the United States government will pay 65% of an employee’s health insurance premiums for up to nine months after an employee is involuntarily fired or laid off. This new provision is part of the Consolidated Omnibus Budget Reconciliation Act (COBRA). It applies to individuals who are covered by COBRA who involuntarily lose (or lost) their jobs between September 1, 2008 and December 31, 2009. It even covers individuals who have already turned down COBRA benefits since September 1, 2008.

The government stipend toward COBRA benefits is reduced for individuals who make more than $125,000 per year and married couples who file joint tax returns and earn more than $250,000 combined.  The benefits phase out completely for individuals who make more than $145,000 and for couples filing joint tax returns who earn more than $290,000 combined.

COBRA is a law that allows many employees, as well as their spouses and dependent children, to continue to receive health insurance benefits for at least 18 months (and under certain circumstances, for as long as 36 months) after they lose their health insurance coverage from an employer. COBRA allows those individuals to pay for their health insurance based on the employer’s group rates, plus a 2% administrative cost. Prior to the stimulus package, employees who elected to continue their health insurance benefits under COBRA had to pay the entire cost of keeping their medical benefits out of their own pockets. Employees who are eligible for the new government subsidy only have to pay 35% of that cost.

COBRA itself applies to individuals who are eligible for health insurance benefits from a company with at least 20 employees.  However, the new government subsidy applies to individuals in states that have “comparable continuation coverage” that apply to smaller companies (often referred to as mini-COBRA laws).  That includes employees in both New York and New Jersey.

Although the new government subsidy only applies to individuals who were laid off or who are otherwise involuntarily termiated, COBRA applies to employees who are no longer covered by a company’s health insurance plan because their employment voluntarily or involuntarily ends for any reason other than “gross misconduct,” or their hours were reduced. It also applies to spouses and dependent children if the are no longer entitled to health benefits from their spouse’s or parent’s employer because (1) the employee voluntarily or involuntarily left his employment for any reason other than “gross misconduct,” (2) the employee’s hours were reduced below the minimum to qualify for benefits, (3) the employee becomes entitled to Medicare; (4) the employee divorces or legally separates from his or her spouse; (5) the employee dies; or (6) in the case of a dependent child, because the child is no longer eligible for benefits under the employer’s health insurance plan.

If you have recently lost your job, or have another question about your rights under COBRA, you should contact an employment lawyer in your area to discuss who can help you understand your employment law rights.

The Doctrine of Apparent Authority

Imagine a company’s Vice President offered you a great new job. Better yet, he or she offered you a guaranteed written one year employment contract that provides a generous salary and benefits. You signed the contract and started the job, only to be told by someone in the human resources department that the Vice President who hired you did not have the authority to offer you an employment contract, the company has hired someone else for your job, and you are fired. Do you have a legal claim for the company breaching your employment contract?

The answer is not so simple. Generally, the law only holds a company responsible for contracts which are made by someone who actually has the authority to enter into that type of contract on the company’s behalf. For example, if an employee has the authority to hire employees, then the company ordinarily must honor the employment contacts he or she enters into on the company’s behalf. However, if an employee tries to enter into an agreement on behalf of the company without having the authority to do, then the company is generally not bound by that agreement.

But what about when an employee who does not actually have the authority to hire, but reasonably appears to have that authority? The law in many states, including New York and New Jersey, recognizes that companies sometimes should be bound when they allow people to reasonably believe that a corporation’s employee has more authority than he or she actually has. Under the doctrine of “apparent authority,” a company potentially can be held legally responsible when it allows others to reasonably believe that someone else had the authority to act on the company’s behalf. The law recognizes that often when a company’s representative has the apparent authority to act on the company’s behalf, the company should be legally bound by the representative’s actions. Accordingly, since you reasonably believed the Vice President had the authority to hire you, at least in some states you would at least have a good argument to enforce your employment contract based on the Vice President’s apparent authority to hire you.

It is important to note that the applicability of the doctrine of apparent authority is very fact specific, and that the law varies from state to state and from case to case. If you believe your employment law rights may have been violated, you should contact an experienced employment lawyer who can evaluate your case and help you to enforce your legal rights.

Supreme Court Rules it is Unlawful to Retaliate Against Employee For Harassment Complaint During Investigation

On January 26, 2009, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 (Title VII) prohibits retaliation against employees who speak out about harassment while answering questions as part of a company’s internal harassment investigation.

The case, Crawford v. Metropolitan Government Ofnashville and Davidson County, involved a sexual harassment investigation by the Metropolitan Government of Nashville and Davidson County, Tennessee (Metro). Metro began investigating rumors of sexual harassment by one of its employee, Gene Hughes. During the investigation, a human resources representative asked an employee, Vicky Crawford, if she had witnessed any inappropriate behavior by Mr. Hughes. In response, Ms. Crawford described several examples of Mr. Hughes sexually harassing conduct toward her. During the investigation, two other Metro employees also indicated that Mr. Hughes had sexually harassed them.

Metro took no disciplinary action against Hughes. However, shortly after it completed the investigation, it fired Ms. Crawford and the two other women who accused Mr. Hughes of sexual harassment. Metro claims it fired Ms. Crawford for embezzlement.

After Metro fired her, Ms. Crawford filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), and eventually sued. She alleged that Metro fired her in retaliation for reporting Mr. Hughes’ sexual harassment.

The United States District Court dismissed Ms. Crawford’s case, finding that her complaints of sexual harassment were not protected by Title VII because she did not initiate the complaint, but rather answered questions during an investigation initiated by her employer. On appeal, the United States Court of Appeals for the Sixth Circuit agreed with the District Court, and affirmed the dismissal of Ms. Crawford’s case. However, the United States Supreme Court reversed that decision, reinstated Ms. Crawford’s case, and sent it back to the District Court for further proceedings.

In its legal analysis, the Supreme Court noted that Title VII includes two provisions that make it unlawful for an employer to retaliate against an employee who reports workplace race or gender discrimination. The first of those provisions, which the Supreme Court referred to as the “opposition clause,” makes it unlawful to retaliate against any employee because she opposed any practice that Title VII makes unlawful. The other anti-retaliation provision, which the Supreme Court referred to as the “participation clause,” makes it unlawful to retaliate against an employee because she filed a charge of discrimination, or because she testified, assisted, or participated in any investigation, proceeding or hearing pursuant to Title VII.

The Supreme Court based its decision in Crawford on the opposition clause, as opposed to the participation clause. The Court concluded that Ms. Crawford’s statements were made in opposition to Mr. Hughes’ sexual harassment since she expressed her disapproval with his behavior. In support of its position, the Supreme Court relied on an EEOC guideline which states that “‘[w]hen an employee communicates to her employer a belief that the employer has engaged in … a form of employment discrimination, that communication’ virtually always ‘constitutes the employee’s opposition to the activity.’” Notably, the Court indicated that protected opposition would include “refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons,” suggesting that the opposition protects employees who verbally or orally object to discrimination, but also to employees who refuse to participate in discriminatory practices.