Winter 2004

Dear Colleagues, Clients, Referring Attorneys and Friends:

The year 2004 ended without a blockbuster decision in the field of Employment Law, but certain trends in the law were affirmed and other areas were clarified.

Nationwide, whistleblower lawsuits have increased due to a growing public awareness over the Enron and World Com scandals and the adoption of the Sarbanes-Oxley bill by the United States Congress in 2002.

According to "Jury Verdict Research" of Horsham, PA, cases filed nationally under federal and state laws between 1997 and 2003, revealed that the median award in whistle blower lawsuits were $338,386, compared to $178,500 for wrongful discrimination cases and $135,000 for wrongful termination and/or retaliation claims.

But in New Jersey discrimination against employees just got costlier. In a Supreme Court case decided on by a 4-1 ruling, Tarr v. Ciasulli Justice John E. Wallace victims of discrimination who press Law Against Discrimination (LAD) claims will not have to offer expert testimony or medical evidence of humiliation, emotional distress or acute anxiety.

The point to be made is that Tarr simply affirmed and clarified what the New Jersey legislature recognized when it adopted both the NJLAD. N.J.S.A. 10:12-1 et seq and the Conscientious Employee Protection Act (CEPA) N.J.S.A. 34:19-1 et seq. in the year respectively.

Harassment at work, discriminatory treatment, retaliation and wrongful termination does cause people to suffer worry, anxiety and severe stress in certain cases. If the loss of a job will cause the loss of a home, or the removal of a child from college, or the depletion of a lifetime of savings, people will experience emotional harm. This is a common sense ruling, not to mention a rebuttal to those who believe there has to be an expert witness for "everything" in a courtroom.

Tarr is also an excellent review of the LAD's legislative objectives and concerns about providing employees fairness of treatment in the workplace and how emotional distress damages are to be dealt with evidentially.

In a case decided last spring in Federal Court, Conoshenti v. Public Service Electric & Gas Company, the 3^rd Circuit Court of Appeals ruled that an employer's failure to provide an injured employee of his right to protected leave under the FMLA (Family Medical Leave Act) constituted an "interference" with his FMLA rights resulting in the loss of his job. The employee successfully argued that had he been informed of his rights under the FMLA, after giving notice of his prolonged absence from work due to this automobile injuries, he could have salvaged his job by not violating an LCA (Last Chance Agreement) earlier entered into with his employer over performance issues. The lesson here for the employers? Give employees full notice of all their rights in the workplace so that if they do deserve to be terminated for legitimate reasons management can act unhindered without increasing their exposure if they are sued. This, by implication, would apply to all forms of notice required by law to be given to employees, beyond the realm of the FMLA.

And finally, be mindful that a bill is in the New Jersey legislature to enhance the strict enforcement of the remedies available under the CEPA statute, including the elimination of caps on punitive damages and mandating remedies rather than the statutes leaving them as permissive. All this due to the Enron and World Com debacles mentioned above.

Edward F. Broderick, Jr.

EFB,Jr.:lh