Employer's distribution of a memo tying reduction in hours to employee's wage complaint supports a New Jersey CEPA claim

by Saul Ewing Arnstein & Lehr LLP
Contact

[author: Ruth A. Rauls]

Summary

Earlier this month, the New Jersey Appellate Division issued a decision, which found that sending employees a memo that hours would be cut because one of the staff brought a wage-and-hour claim, could constitute an "adverse employment action" by the employer supporting a whistleblower suit. The Appellate Division reversed the trial court's grant of judgment dismissing plaintiff's claim under the Conscientious Employees Protection Act ("CEPA"), and also remanded the issue of whether New Jersey's Wage and Hour Law is preempted by federal law, in Flecker v. Statue Cruises, A-4390-10 (decided November 14, 2012).

Background:

According to the court’s opinion, Howard E. Flecker was employed by Statue Cruises as a deckhand and was covered by a collective bargaining agreement ("CBA") under which employees were to be paid for overtime at a rate of time and one-half of the employee's straight time for hours worked in excess of forty-eight hours per week. Flecker filed a complaint in state court, alleging that the CBA's overtime provision was contrary to the New Jersey Wage and Hour Law. After the complaint was filed, a company executive issued a memorandum informing employees about the lawsuit. The memo identified Flecker as the named party in the lawsuit and advised that in an effort to mitigate damages, the company would not schedule union employees to work more than forty hours per week until the issues raised in the complaint were resolved. The memo further identified Flecker as the brother of a union officer, indicated that the union might support the wage suit and questioned whether the union's involvement in the litigation was in the best interest of the employees, in light of the fact that now the employees would "lose a day's pay (or more) every week."

Reaction from Flecker's coworkers was immediate and significant, with some individuals personally confronting him. Some urged Flecker to drop the suit, while others started ignoring him. One worker allegedly told Flecker that he was "ruining everybody's career," affecting everyone financially and that he wanted to burn the complaint "on the boat with everybody." Flecker alleged that the stress of his daily encounters with co-workers after the memo was distributed forced him to resign from his position. Additionally, Flecker alleged that his hours were reduced after the memo was issued. Based on these allegations, Flecker filed an amended complaint adding a CEPA claim.

In granting defendant’s cross-motion for summary judgment, the trial court found that the employer's issuance of the inflammatory memo was not an adverse employment action because it was not a completed personnel action that impacted plaintiff's employment. The court also found that the reduction of plaintiff's hours of work was not retaliatory and the purported confrontations with co-workers, while creating a hostile work environment, were not sufficiently egregious to support a CEPA claim. The Appellate Division reversed. In so doing, it held that the universe of possible retaliatory actions under CEPA is broader than discharge, suspension and promotion and that it may include "creating a hostile working environment through a memorandum that defendant knew or should have known would incite plaintiff's co-workers, who then commenced harassing plaintiff about his lawsuit to such an extent that the work environment became so intolerable to plaintiff that he was forced to resign." With regard to the reduction of hours, the Appellate Division noted that the trial court's wholesale adoption of defendant's position was improper on summary judgment because the record showed that the employer provided shifting explanations for reducing plaintiff's hours and, thus, there was a question of fact as to whether it acted with retaliatory intent. The Appellate Division found that there existed disputed factual issues material to plaintiff’s CEPA claim and thus, summary judgment was inappropriate.

What It Means For Employers:

The Appellate Division's decision in Flecker, demonstrates that there is no "bright line" test or standard for determining what may constitute a retaliatory action under CEPA, and the analysis regarding the spectrum of possible retaliatory actions is fact sensitive and may encompass a wide variety of actions. Specifically, retaliatory actions under CEPA encompass more than just discharge, suspension and promotion. Accordingly, employers should use caution in responding to lawsuits initiated by employees and avoid any company-wide communications that may subject the litigant to harassment by co-workers, as such actions by the employer could be used to support a CEPA claim.

Please contact the author or any member of Saul Ewing's Labor, Employment and Employee Benefits practice with any questions regarding this development.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Saul Ewing Arnstein & Lehr LLP | Attorney Advertising

Written by:

Saul Ewing Arnstein & Lehr LLP
Contact
more
less

Saul Ewing Arnstein & Lehr LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.