The opinion recognizes that, under the New Jersey Wage Payment Law (WPL), a bonus that compensates an employee for doing their job can count as wages, whatever the employer calls the payment. Objecting to an employer withholding those wages is a protected activity that can support a retaliation claim. Rabner Baumgart Ben-Asher & Nirenberg, P.C. represents New Jersey employees in whistleblower and retaliation claims, including ones arising from disputes over incentive pay and other wages.

The Facts of Di Benedetto v. The Lockwood Group

Rabner Baumgart Ben-Asher & Nirenberg, P.C. represents New Jersey employees in employment discrimination matters. We recognize that, since so many employees are now working from home for employers based in other states, the question of which state’s employment law applies arises often. Although the law is still developing on this issue, where the employee physically works, and where the unlawful discriminatory decision was made, rather than where the employee lives, generally decides which state’s discrimination statute applies.

The Facts of Redmond v. BDO USA

Charles Redmond, who is Black, was hired in January 2018 as a senior tax accountant in the Stamford, Connecticut office of BDO USA. BDO is an accounting firm headquartered outside New Jersey, but with an office in Woodbridge. Mr. Redmond lived in New Jersey. He rented an apartment in Connecticut while he worked for BDO in Stamford.

Mr. Redmond twice received a “Very Successful” performance rating. However, after Heide Moeller became the managing partner of BDO’s Stamford office in November 2019, his reviews suddenly turned negative.

Mr. Redmond began working remotely in March 2020 because of the COVID-19 pandemic, dividing his time between New Jersey and Connecticut. That same month, he reported to the company’s human resources department that Ms. Moeller had harassed and discriminated against him because of his race, and created a hostile work environment. BDO placed Mr. Redmond on a performance improvement plan (PIP) in April, which he called retaliation. The company fired him on July 7, 2020.

Mr. Redmond filed a claim with Connecticut’s Commission on Human Rights and Opportunities. However, that agency released jurisdiction over Mr. Redmond’s case on May 10, 2022, and advised him that, pursuant to Connecticut law, his lawsuit must be brought within 90 days. He filed a lawsuit in Passaic County, New Jersey on July 7, 2022 under the New Jersey Law Against Discrimination and the Connecticut Fair Employment Practices Act, along with common law wrongful discharge claims, but did not serve the Complaint on the defendants until 132 days into the 90-day period.

When the New Jersey Law Against Discrimination Reaches an Out-of-State Job

Under New Jersey law, the discrimination statute that applies to a firing generally is the law of either the state where the employee worked, or the state where the unlawful discriminatory actions occurred, rather than the state where the employee lived. Accordingly, a New Jersey resident employed at an out-of-state office ordinarily is covered by the other state’s anti-discrimination laws.

The New Jersey Law Against Discrimination (LAD), at N.J.S.A. § 10:5-12, makes it unlawful to discriminate in the terms and conditions of employment because of race and other protected characteristics. The LAD’s geographic limits have been discussed in previous cases, including Buccilli v. Timby, Brown & Timby, 283 N.J. Super. 6 (App. Div. 1995). In that case, the court held that a New Jersey resident’s claim for wrongful dismissal from out-of-state employment is governed by the law of the state where she was employed, since making each coworker’s rights depend on that person’s state of residence would be unreasonable from the employer’s perspective.

However, that rule is not absolute. In Calabotta v. Phibro Animal Health Corp., 460 N.J. Super. 38 (App. Div. 2019), a nonresident sued a New Jersey headquartered employer over a promotion he alleged was denied in New Jersey. The Calabotta court cautioned that Buccilli did not establish a bright-line principle governing every discrimination claim. Calabotta applied a choice-of-law analysis, the method courts use to decide which state’s law governs a dispute connected to more than one state.

What the Appellate Division Decided

In Redmond, the appellate court found Redmond’s situation essentially identical to Buccilli because he lived in New Jersey but worked exclusively out of the Connecticut office and every act of alleged discrimination took place outside New Jersey. It described his work from home as a continuation of a job that remained based in Connecticut, and distinguished Calabotta on the ground that the claim there concerned a New Jersey job and a decision allegedly made in New Jersey. It concluded that the claims under the Connecticut anti-discrimination law failed based on the timing, since Mr. Redmond failed to serve his Complaint on BDO within 90 days after the Connecticut Commission on Human Rights and Opportunities released jurisdiction over the case.

However, the Appellate Division reversed the dismissal of Ms. Moeller as an individual defendant on the remaining claims, holding that New Jersey courts can exercise general jurisdiction over her because of her partnership interest in BDO, a company that does business in New Jersey. It also reinstated the New Jersey common law wrongful discharge claims against BDO and Ms. Moeller, holding that although discrimination statute can subsume a related common law claim, dismissal of the statutory claim does not necessarily dismiss a common law claims with it. Those claims return to the trial court, where their merits have not yet been decided.

Why the Ruling Matters for New Jersey Employees Working Out of State

Working from a New Jersey address does not, by itself, mean that New Jersey’s anti-discrimination laws apply to you . The court look at where your job is based, where the supervisors and the decisionmakers sat, and where the allegedly unlawful conduct occurred, to decide which employment law statutes apply.

Further, when another state’s law governs, that state’s deadlines also govern, which can be far less forgiving than New Jersey law. A claim under New Jersey’s statute runs on a two-year period and may be filed directly in the Superior Court. In contrast, claims under Connecticut’s anti-discrimination law provide only 90 days after the state agency dismisses the claim for an employee to file and serve a lawsuit on the defendants.

In addition, New Jersey recognizes a common law claim for wrongful termination in violation of public policy. The Appellate Division’s ruling confirms that losing a statutory discrimination claim does not necessarily extinguish that common law claim.

Because the Redmond opinion is unpublished, none of its rulings bind another court.

Contact a New Jersey Employment Discrimination Lawyer

Questions about which state’s law governs a discrimination claim are best answered early, while every deadline is still open. Rabner Baumgart Ben-Asher & Nirenberg, P.C. represents employees throughout New Jersey, and we act for workers rather than employers. Contact us at (201) 777-2250. or through our contact page, to schedule a consultation and discuss your situation.

The practical effect is direct. One employee may bring a lawsuit seeking unpaid overtime, minimum wage or prevailing wages on behalf of similarly situated coworkers by asking the court to designate a representative, and the group does not have to be certified as a class under New Jersey Court Rule 4:32-1. That removes a hurdle that comparable federal wage and hour laws still impose. Rabner Baumgart Ben-Asher & Nirenberg, P.C. represents New Jersey employees in wage and hour disputes, and rulings like this one shape how those cases are built.

The Facts of Martinez v. T. Slack Environmental Services

temporary disability insurance and family leave insurance laws adds a new entitlement to reinstatement for employees who receive either of those benefits. In plain terms, the laws that pay part of your wages while you recover from a serious illness, welcome a new child, or care for a sick family member will now also address whether your employer is required to give you your job back.

If you collected these benefits and were not returned to your position, a New Jersey employment lawyer can help you understand whether this change applies to your situation. The attorneys at Rabner Baumgart Ben-Asher & Nirenberg, P.C. represent employees throughout New Jersey and follow employment law developments like this one closely.

How New Jersey Temporary Disability and Family Leave Insurance Work

New Jersey runs two state insurance programs that replace part of a worker’s pay during certain absences. Temporary disability insurance, often called TDI (and sometimes referred to as short term disability, or STD), applies when you cannot work because of your own illness, injury, pregnancy, or recovery from childbirth that is not related to your job. Family leave insurance, often called FLI, applies when you take time off to bond with a new child or to care for a family member with a serious health condition. Most employees in the state contribute to these programs through payroll deductions, and most employees can collect benefits when a qualifying need arises. Pregnancy and recovery from childbirth, which fall under temporary disability, often overlap with the workplace protections explained on our pregnancy discrimination page.

Until now, these laws did one thing. They replaced a portion of lost wages, but they said nothing about your job. An employer could pay into the system, watch an employee collect benefits, and still decline to take that employee back at the end of the leave without violating either of these laws. The right to return to work, and the right to be placed in the same or an equivalent position, came from other laws.

What Other Laws Required Reinstatement Before This Change

Before this amendment, the right to be reinstated to your job after a family or disability leave mainly came from two sources: the federal Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA). Both of those laws guarantee job-protected leave, but both limit who qualifies. However, neither the FMLA nor the NJFLA apply to smaller employers, and both have requirements with respect to how long you have worked for your employer and how many hours you have worked for your employer in the past year. You can read more on our family and medical leave page. In addition, even for covered employees, both of those laws provide only a maximum of 12 weeks off from work.

The practical result was a coverage gap. A worker could be fully eligible for state disability or family leave benefits, collect them for weeks, and still fall outside the reinstatement protections of either statute. That worker received income during the absence, but had no guaranteed job to which to return. Lower-wage employees, part-time employees, employees working for smaller businesses, and employees who needed more than 12 weeks off were the most exposed. A worker who was let go rather than reinstated often had to rely on a wrongful termination theory, which you can read about on our wrongful termination page.

What the Amendment Changes

The amendment adds new language entitling employees to reinstatement directly to the temporary disability and family leave insurance laws. The new text states that a covered employee who receives either of these benefits is entitled to be restored to the position they held when the leave began, or to an equivalent position with the same seniority, status, pay, benefits, and other terms and conditions of employment. The change takes effect on July 17, 2026.

Because the disability and family leave insurance programs reach far more workers than the federal and state family-leave statutes, this is a significant shift. If courts read the new language broadly, the right to reinstatement would not depend on employer size or how long the employee worked for the employer the way FMLA and NJFLA do. A worker who qualifies for benefits may now look to the TDI and FLI laws themselves when seeking to return to work.

The same amendment also expands the New Jersey Family Leave Act. For example, it lowers the employer-size threshold so smaller businesses are covered, starting at fifteen employees on the effective date and dropping further over the following two years. It also relaxes the service and hours requirements employees must meet to be covered by it. The new reinstatement language and the expanded Family Leave Act work together to extend job protection to a wider group of New Jersey workers than before.

What To Do If You Take or Return from Leave

Workers across Bergen County and the rest of New Jersey who are planning a family or medical leave, are currently collecting TDI or FLI benefits, or returning to work from such a leave can take a few steps to protect their position. Keep written records of your leave dates, the benefits you received, and copies of any communications with your employer about your return. Save emails, text messages, and letters that discuss your job, your leave, or your reinstatement. If your employer tells you that your position is no longer available, ask it for the reason in writing.

Pay attention to timing. Many employment claims in New Jersey are subject to filing deadlines, and waiting too long can limit your options.

If you are offered a severance agreement in connection with your departure, have it reviewed before you sign, because these agreements often ask you to give up legal rights in exchange for payment. Our severance agreement page explains what to watch for.

None of this requires you to confront your employer on your own. An attorney who handles these matters can review the facts, explain where you stand, and tell you whether the TDI, STD, FMLA, NJFLA, or another law fits your situation.

Talk With a New Jersey Employment Lawyer

If you collected disability or family leave benefits and your employer refused to return you to your job, or if you are about to take leave and want to understand your rights, the attorneys at Rabner Baumgart Ben-Asher & Nirenberg, P.C. can review the facts, explain your options, and discuss your next steps. The firm represents employees throughout New Jersey, including workers across Bergen County. A New Jersey employment lawyer at our firm can be reached at (201) 777-2250.

The decision is important for New Jersey workers because it confirms two practical points about CEPA timing. First, a retaliatory termination claim begins to run on the actual date of discharge, not based on earlier acts of retaliation that may have warned the employee that something was wrong. Second, a hostile work environment claim built on a pattern of smaller retaliatory acts can be timely even if some of the underlying conduct occurred years earlier, as long as at least one act in the pattern occurred within the one-year filing window. At Rabner Baumgart Ben-Asher & Nirenberg, P.C., we represent employees across Bergen County and throughout New Jersey in CEPA matters. These timing rules can make the difference between a viable case and one that is dismissed before it begins.

The Facts

The plaintiff, Cynthia Ham, was hired by Novartis in May 2018 as an Ethics, Risk, and Compliance Advisor. Ms. Ham was an attorney with more than twenty years of compliance experience who was assigned to four internal leadership teams.

Shortly after she started working for Novartis in 2018, Ms. Ham identified what she believed was a violation of the federal Anti-Kickback Statute in a program called the Cardiac Nurse Program. In her view, Novartis was paying nurses to visit cardiac patients and report back to prescribing cardiologists, effectively giving doctors free nursing services, as an incentive to prescribe a particular heart failure medication. Ms. Ham reported her concerns internally. According to her lawsuit, after she did so, she was excluded from meetings, shunned by managers, and reassigned to a different role. Novartis eventually ended its Cardiac Nurse Program.

Ms. Ham raised additional objections in 2019. She redlined a sales training slide deck that she believed contained regulatory violations, and opposed a suggestion to rename the document to make it harder to find in response to a government investigation. She also objected to a home-delivery pharmacy agreement that was part of a major drug acquisition, which she believed contained illegal discount and kickback arrangements. The agreement was removed from the deal.

Ms. Ham’s Complaint alleges that the response from Novartis’ leadership was retaliation rather than gratitude. Novartis subjected Ms. Ham to two internal investigations that cleared her of any wrongdoing. She was told by one executive that other leaders had powerful friends inside the company and that she should be careful. She was excluded from a high-profile speaking opportunity at the company’s global headquarters. She received a low year-end performance review in February 2020, even though her own manager repeatedly told her she had done a great job, and she was later issued a written final warning that she alleged was based on false accusations.

In June 2020, Ms. Ham suffered a seizure and was diagnosed with brain cancer. She was later diagnosed with ocular cancer and took a medical leave to undergo treatment. Her Complaint alleges that Novartis repeatedly mishandled her medical leave and her requests for accommodations upon her return to work. Novartis finally permitted Ms. Ham to return on September 7, 2021, but without the accommodations she had requested. On October 19, 2021, Novartis told Ms. Ham that her position had been eliminated and her employment was terminated.

Ms. Ham, alleging claims under the CEPA and the New Jersey Law Against Discrimination including retaliation, a hostile work environment, disability discrimination, and failure to accommodate her disability. The trial court dismissed all five of her CEPA claims, ruling that the conduct she described had put her on notice of a possible egal claim by early 2020, and therefore CEPA’s one-year CEPA statute of limitations had expired before she filed suit.

The Law

CEPA is New Jersey’s broad whistleblower statute. It protects employees who objects to, refuses to participate in, or discloses an activity that they reasonably believe violates a law, rule, regulation, or clear mandate of public policy. To prevail, the employee must show she had a reasonable belief that the employer’s conduct was unlawful, that she engaged in protected whistleblowing activity, that she suffered an adverse employment action, and that there is a causal connection between the two. Importantly, the employee does not have to be right that the conduct she objected about actually violated the law. Rather, she only has to show that her belief was reasonable.

CEPA has a one-year statute of limitations, which is shorter than the deadlines that apply to many other employment claims. The difficult question in many cases is when the one-year clock starts to run.

New Jersey courts treat discrete acts of retaliation differently from hostile work environment claims. A discrete act, such as a termination, demotion, or transfer, is considered to occur on the day it happens, and the clock for the statute of limitations starts on that day. A hostile work environment claim, by contrast, is based on the cumulative effect of many smaller acts, none of which may be enough by itself to support a lawsuit. For hostile work environment claims, courts apply what is called the continuing violation doctrine. Under that doctrine, the claim accrues on the date of the last act in the pattern of harassment, and earlier acts that otherwise would be time-barred can be considered as part of the same claim, as long as at least one act in the pattern occurred inside the one-year window.

The trial court in this case acknowledged the continuing violation doctrine, but nonetheless concluded that Ms. Ham knew or should have known that she had a CEPA claim by early 2020., and as a result her later filing was untimely.

What the Appellate Court Decided

The Appellate Division reversed the dismissal and sent the case back for further proceedings. The court reached two main conclusions.

First, on the retaliatory termination claim, the court held that a wrongful termination claim under CEPA accrues on the date of the actual discharge, regardless of when any earlier acts of retaliation occurred. Novartis discharged Ms. Ham on October 19, 2021, which fell within the one-year period preserved by the parties’ pre-suit agreement to toll the statute of limitations. As a result, her termination claim was timely.

Second, on the hostile work environment claim, the appellate court applied the continuing violation doctrine. It concluded that Ms. Ham had alleged a series of separate retaliatory acts that, taken together, could amount to a hostile work environment under CEPA. Because at least some of those acts, including Novartis’ alleged obstruction of her return from medical leave and mishandling of her accommodations request in the late summer and fall of 2021, fell within the limitations window, the earlier acts of harassment could be swept in as part of the same pattern. The court rejected the employer’s argument that the plaintiff had to plead an unbroken chain of retaliation, finding there is no such requirement in New Jersey case law.

It is important to be clear about what this decision does and does not do. It does not decide whether Novartis retaliated against Ms. Ham or subjected her to a hostile work environment, or whether she ultimately will win her case. It only holds that her CEPA claims were improperly dismissed at the pleading stage based on the statute of limitations, and she is entitled to move forward and develop her case through discovery. The Appellate Division also instructed the trial court to allow Ms. Ham to amend her complaint to plead with more specificity the series of acts that make up the alleged hostile work environment.

The opinion is unpublished, which means it is not binding on other courts. Even so, it applies and explains rules that come from binding New Jersey Supreme Court decisions, and offers a useful illustration of how those rules work in a real fact pattern.

Why It Matters for New Jersey Workers

For New Jersey employees who have been fired after raising concerns about illegal conduct, this decision reinforces a critical point about timing. If you were fired because of protected whistleblowing, then the one-year CEPA clock does not start on the day you first sensed or believed your employer was unhappy with you. Rather, it starts on the day you actually were discharged. Earlier acts of retaliation may have made things difficult, but they do not necessarily extinguish a subsequent wrongful termination claim.

The decision also illustrates how the continuing violation doctrine can preserve a hostile work environment claim. Retaliation against whistleblowers often is a slow accumulation of smaller acts such as exclusion from meetings, undesirable job assignments, sham investigations, unfair performance reviews, bogus disciplinary memos, and interference with a medical leave. Many of those acts may not, on their own, be worth filing a lawsuit over. When they form a pattern, however, and at least one act in that pattern occurred within the past year, the entire pattern can be considered as part of one ongoing claim under CEPA.

There are practical lessons in this opinion for any employee who suspects retaliation. Keep a written record of what is said and done, including dates, participants, and what you reported and to whom. Save relevant emails, memos, performance evaluations, and disciplinary documents in a personal location that you will still have access to if your employment ends. Be aware that CEPA’s one-year deadline is shorter than the deadlines for many other workplace claims, and that the precise date when the clock starts may depend on the kind of claim you are asserting. Before signing a severance agreement or waiting too long to act, it is worth speaking with an attorney who regularly handles these matters.

If you believe you have been retaliated against for objecting to conduct you believe was unlawful, or if you have been terminated after raising concerns about your employer’s practices, the Bergen County employment lawyers at Rabner Baumgart Ben-Asher & Nirenberg, P.C. can review the facts of your situation, explain your legal options, and discuss next steps. Because CEPA claims are subject to a one-year statute of limitations, timing matters. Contact the firm at (201) 777-2250 to schedule a consultation.

The Facts

Sergio Lopez was hired in June 2015 as the superintendent of two buildings in Newark owned by Marmic LLC, a realty management company. When Mr. Lopez applied for the position, he provided an invalid Social Security number on a W-4 form. Marmic’s owner, Mike Ruane, initially paid Mr. Lopez $400 per week and provided him a basement apartment for which Mr. Lopez agreed to pay $800 per month.

After two weeks, Mr. Ruane discovered the Social Security number Mr. Lopez provided was invalid. Rather than continue to pay his wages, Mr. Ruane told Mr. Lopez that he could not pay him because doing so would be “against the law.” Instead, Mr. Ruane offered to let Mr. Lopez live in the apartment rent-free in exchange for continuing to perform his duties as the superintendent.

Mr. Lopez continued working under that arrangement for approximately three-and-a-half-years. He cleaned common areas, removed snow and leaves, painted apartments when they were vacant, fixed leaks and broken pipes, responded to tenant maintenance requests, and performed other building upkeep tasks. At the trial, Mr. Ruane confirmed that Mr. Lopez had performed all of those tasks.

Marmic kept no records of the hours Mr. Lopez worked, or the wages it owed him. In December 2018, Marmic fired Mr. Lopez, who filed a lawsuit alleging violations of New Jersey’s wage and hour laws.

Months after the trial, the trial court dismissed the case. It found Mr. Lopez was not credible because he had provided an invalid Social Security number and faulted him for not presenting specific proof about the total number of hours he had worked. The Appellate Division affirmed, concluding that because Mr. Lopez was an undocumented worker, there could be no employee-employer relationship between the parties.

The Law

Two sets of New Jersey statutes were central to the case. First, the New Jersey Wage and Hour Law (WHL) requires employers to pay employees who are not exempt from it at least minimum wage for all of the hours they work, plus an overtime premium for any hours they work beyond 40 hour in a week. Second, the New Jersey Wage Payment Law (WPL) requires employers to pay the full amount of the wages due on regular paydays. Both statutes define “employee” broadly to include anyone “suffered or permitted to work” by an employer. Neither statute excludes undocumented workers.

In addition, a federal law, the Immigration Reform and Control Act of 1986, makes it unlawful for an employer to hire or continue to employ an individual who is not authorized to work in the United States. However, the statute does not expressly prohibit paying wages to undocumented workers for work they already have performed.

Marmic argued that the United States Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB barred Mr. Lopez’s claims. In that case, the Court reversed an award of backpay to an undocumented worker who had been unlawfully terminated for union organizing. But, as the New Jersey Supreme Court explained, backpay compensates a worker for wages they would have earned if they not been fired. It is fundamentally different from compensation for work a person already has completed.

The Court’s Ruling

The New Jersey Supreme Court reversed the Appellate Division, and ruled in Mr. Lopez’s favor on every issue.

First, the Court held that federal and state law do not conflict. Specifically, requiring an employer to pay wages for work already performed by an employee does not condone or continue a violation of federal immigration law. To the contrary, the Court reasoned that exempting employers from wage obligations to undocumented workers would give them an incentive to hire undocumented workers and pay them nothing, which would undermine the very purpose of federal immigration law.

Second, the Court rejected Marmic’s argument that its barter arrangement with Mr. Lopez created a relationship outside the scope of New Jersey’s wage and hour statutes. The Court found no broad exception in the WHL or the WPL for barter arrangements. While the WHL permits the fair value of lodging to count toward wages in certain circumstances, that provision is a way to satisfy wage obligations, but not a way to avoid them entirely.

Third, the Court addressed the burden of proof regarding hours worked. Both the trial court and the Appellate Division had faulted Mr. Lopez for not presenting specific records of his hours worked. However, under New Jersey law, it is the employer’s obligation to maintain records of hours worked and wages paid. When an employer fails to keep those records, a rebuttable presumption applies that the employee worked the hours and earned the wages he alleges in his claim. The trial court and the Appellate Division failed to apply that presumption.

Finally, the New Jersey Supreme Court addressed the trial court’s use of the fact that Mr. Lopez provided Marmic an invalid Social Security number to find he was not credible. The Supreme Court held that evidence that a worker had an invalid Social Security number can serve as a proxy for their immigration status, which in turn could unduly prejudice the worker in a wage and hour case. It made it clear that, going forward, courts must evaluate such evidence carefully before a trial. If there is no legitimate purpose of that evidence other than to establish a person’s immigration status, then it should be excluded.

The Court remanded the case to a different trial judge to determine Mr. Lopez’s damages.

Why Does this Case Matter?

This decision matters for workers across New Jersey for several reasons.

It confirms that employees who perform work are entitled to be paid for it under New Jersey state law, regardless of their immigration status. Employers cannot use a worker’s lack of documentation as a reason to withhold wages after the work has been done.

It also puts employers on notice that barter arrangements do not override wage and hour requirements. An employer cannot substitute free housing, or any other non-cash arrangement, for the minimum wage and overtime pay guaranteed by the law, except in narrow circumstances that still require compliance with hourly wage obligations.

Further, that case it reinforces that the burden of keeping accurate time records falls on the employer, rather than the employee. When an employer fails to maintain accurate time records, the law does not penalize the worker by denying recovery. Instead, it creates a presumption in favor of the employee.

In addition, the ruling provides important guidance on the use of Social Security numbers as evidence in wage payment cases, limiting employers’ ability of employers to use immigration-related evidence to prejudice a judge or jury, and defeat otherwise valid claims for unpaid wages.

For workers who have been denied proper wages under any compensation arrangement, including situations involving barter, cash payments, or no payment at all, the Lopez decision is a reminder that New Jersey’s wage protections are broad and employers cannot contract around them.

Contact a Bergen County Employment Lawyer

If you believe your employer has failed to pay you the wages you are owed, the attorneys at Rabner Baumgart Ben-Asher & Nirenberg, P.C. can review the facts of your situation, explain your legal options, and help you determine what steps to take next. The firm represents employees throughout New Jersey. Contact Rabner Baumgart Ben-Asher & Nirenberg, P.C. at (201) 777-2250 to schedule a consultation.

The Facts That Led to the Lawsuit

Christopher Massey is a White male who worked for decades in the Borough of Bergenfield Police Department and rose to Deputy Chief. In early 2019, the then-Chief, Cathy Madalone, was out for medical reasons, and Mr. Massey served as Officer in Charge. When Chief Madalone later announced her retirement, the Borough began the process of selecting a new Chief of Police.

The decision was made by a majority vote of the Bergenfield Borough Council, with the Mayor acting as a tie-breaker if needed. Mr. Massey and another candidate, Mustafa Rabboh, were told they would be interviewed for the Chief position. Mr. Rabboh, described in the record as an Arab or Palestinian man of Muslim faith, held the rank of Captain. The opinion notes allegations about Internal Affairs complaints and discipline involving Mr. Rabboh.

Mr. Massey alleged that, at a Police Committee meeting in June 2019, a Councilmember pressed him about candidates the Department was considering hiring and asked what they “looked like.” Mr. Massey testified that when he resisted, he was told he did not “look like the people in the town.”

In August 2019, the candidates were interviewed in a closed executive session. Mr. Massey testified that several Councilmembers were inattentive during his interview, including being on their phones, and that one arrived late. After the interviews, an informal vote favored Mr. Rabboh. Mr. Massey also testified that the Borough Administrator later told him the decision was “all about race” and that the Council had “screwed over” him by choosing Mr. Rabboh.

The Council then held a public meeting on August 20, 2019 to formalize the vote. The opinion recounts that remarks surrounding the swearing-in included repeated references to diversity and the community, including statements that Bergenfield had appointed its first female Chief in 2015 and was now appointing its first Muslim Chief (and only the second in New Jersey).

Mr. Massey filed suit asserting discrimination claims under the New Jersey Law Against Discrimination (NJLAD), along with federal constitutional and statutory theories, including a § 1983 Equal Protection claim and a § 1981 claim. The federal district court granted summary judgment to Bergenfield and individual defendants, and Mr. Massey appealed.

The Legal Issue the Court Focused on

A central issue on appeal was a heightened burden that some New Jersey courts historically applied in certain “reverse discrimination” cases. Under that approach, a plaintiff who was not in a historically marginalized group had to prove extra “background circumstances” suggesting the employer was an “unusual employer who discriminates against the majority.”

While this appeal was pending, the U.S. Supreme Court decided Ames v. Ohio Department of Youth Services and rejected a heightened burden of that kind under Title VII. The Third Circuit’s job in Massey was to predict how the New Jersey Supreme Court would treat New Jersey’s version of the rule under the NJLAD.

The Third Circuit’s Holding in Plain Terms

The Third Circuit held that the Background Circumstances Rule should no longer apply to NJLAD claims. The court reasoned that the NJLAD, like Title VII, protects “any” individual, which provides no textual basis for imposing a special requirement on certain plaintiffs. The court also emphasized that the rule has been criticized as vague and difficult to apply consistently. Based on that analysis, the Third Circuit predicted the New Jersey Supreme Court would follow Ames and abandon the heightened requirement for “reverse discrimination” claims.

After removing that extra hurdle, the Third Circuit reviewed the summary judgment record and concluded that genuine disputes of material fact existed on Mr. Massey’s NJLAD discrimination claim. The court pointed to evidence that could support a finding that race or religion played a role in the promotion decision, including testimony about what decision-makers said during the process and in its aftermath. The court stressed that at summary judgment, judges are not supposed to decide whose version is more believable when the record contains evidence that a jury could credit.

The Third Circuit also held that Mr. Massey’s § 1983 Equal Protection claim could proceed, rejecting the idea that an employment discrimination claim of this kind is categorically barred under § 1983 when it is framed as a constitutional Equal Protection violation.

At the same time, the Third Circuit affirmed dismissal of the § 1981 claim as pleaded, explaining that § 1983 is the vehicle for pursuing § 1981 rights in damages actions against state actors.

The bottom line is straightforward: the court sent the case back for further proceedings, including the potential for trial on the NJLAD and Equal Protection theories.

Why This Decision Matters to Employees in New Jersey

Promotion decisions are often defended with polished explanations: “better interview,” “better fit,” “leadership style,” “needs of the department.” Courts can and do accept legitimate explanations when the evidence supports them. Massey matters because it reinforces that when there is evidence suggesting a protected trait may have influenced the outcome, the case should not be dismissed early just because the employer offers an alternative narrative.

The decision also has broader significance for New Jersey discrimination claims. If New Jersey courts adopt the Third Circuit’s reasoning (as the Third Circuit predicts they will), employees should not face a higher threshold simply because their protected trait does not fit a historically typical discrimination narrative. The question should be the same for everyone: does the evidence support that a protected characteristic played a role in the employment decision.

What Counts as Evidence in a Promotion Discrimination Case

Many employees assume they need a “smoking gun” to move forward. In reality, discrimination cases often turn on practical, everyday proof. Evidence can include timing, inconsistent explanations, deviations from usual procedures, comparative qualifications, and statements tied to protected traits.

Examples that can matter include interview irregularities, shifting reasons for a selection, decision-makers referencing protected traits in connection with the decision, unusual departures from typical posting or scoring processes, or written communications that reveal what was discussed behind the scenes. Even when an employer insists the decision was neutral, patterns in how the process unfolded can help show whether the stated reason is truly credible.

What to Do if You Suspect Discrimination in a Promotion Decision

If a promotion process felt unfair and you suspect discrimination played a role, you can protect yourself without unnecessarily escalating things into a conflict.

• Document what happened and when it happened, including key comments, meeting details, and who was present
• Preserve materials connected to the decision, such as emails, texts, scheduling messages, and any written explanation you were given
• Write down your qualifications and work history while details are fresh, including awards, evaluations, leadership roles, and relevant training
• Consider getting legal advice early, especially before the situation evolves into discipline, retaliation, or pressure to resign

FAQs About Promotion Discrimination in New Jersey

Do you have to prove the employer admitted discrimination to have a case?

No. Direct admissions can help, but many cases are built on circumstantial evidence, such as inconsistent explanations, irregular procedures, and statements that suggest protected traits were considered.

Can you bring a discrimination claim if you were qualified but the employer says the other candidate was a better “fit”?

Yes. “Fit” can be a legitimate consideration, but it can also be a vague label that covers bias. The legal issue is whether the explanation is credible and supported by the record, or whether the facts suggest it was used to hide a discriminatory motive.

What if you are worried about retaliation for complaining internally?

Retaliation is unlawful in New Jersey. Still, the safest approach depends on the workplace and the facts. In many situations, it helps to get legal advice first so you can make decisions that protect your job, your documentation, and your options.

Speak With a Bergen County Employment Lawyer

If you believe you were denied a promotion, disciplined, or otherwise treated differently at work because of race, religion, or another protected trait, it can help to get clear advice about your options under New Jersey law. Rabner Baumgart Ben-Asher & Nirenberg, P.C. represents employees in discrimination and retaliation matters throughout New Jersey. To speak with a Bergen County employment lawyer, call (201) 777-2250 or contact Rabner Baumgart Ben-Asher & Nirenberg, P.C. online to schedule a consultation.

This case is important if you work in New Jersey and your employer tells you that “vacation time covers everything,” refuses to recognize sick leave rights, requires documentation that feels excessive, or makes it difficult to take time off for protected reasons.

Paid Sick Leave Versus a “Vacation Policy”

William Cano and Raymond Bonelli sued their employer, County Concrete, claiming the company violated the ESLL. Among other things, they argued that the company’s “vacation” policy did not satisfy the requirements of the ESLL.

The trial court found multiple ESLL violations and entered judgments for Mr. Cano and Mr. Boneilli. It also allowed the case to move forward on behalf of other similarly situated employees and awarded damages for a group that ultimately included over one hundred additional workers. The Appellate Division affirmed on appeal.

“We Offer Vacation” Is Not Automatically Complaint with the ESLL

As the Appellate Division recognized in Cano v. County Concrete Corp., the ESLL allows employers to use a PTO model instead of a separate “sick leave bank,” but only if employees can use their PTO for all of the reasons the ESLL protects, the PTO accrues at least as generously as the statute requires, and there are no other restrictions that conflict with the ESLL.

The appellate court agreed with the trial court that the employer’s policy was not compliant because, in practice, it did not provide paid leave for the full range of ESLL-protected reasons and imposed restrictions that undercut the law’s rules regarding how time off accrues and can be used. For example, it did not allow employees to use PTO for a family member’s diagnosis, care or treatment for a health condition; a family member being a victim of domestic or sexual violence; or time off for covered school-related conferences, meetings, functions and events for the employee’s child. It also impermissibly allowed the employer to require a doctor’s note for illness-related absences of less than three days.

Notice and Recordkeeping Violations Can Seriously Hurt an Employer’s Defense

The ESLL requires employers to post and provide notice of employees’ rights under it, and requires employers to keep certain records for five years. In Cano, the courts found the company’s notice was inadequate and not properly provided across worksites, and failed to provide the required individualized notice.

The recordkeeping problems were a big deal. The courts found the employer’s records did not adequately reflect employees’ hours worked and sick leave earned sufficiently to be able to determine whether the company was complying with the requirements of the ESLL.

Similarly Situated Employees May Be Included Without a Traditional Class Case

This case also is notable because the court allowed the claims of “similarly situated employees” to move forward without the usual class certification process people associate with large workplace cases. The court focused on the language in New Jersey’s wage and hour enforcement framework that permits employees to pursue claims on behalf of themselves and other similarly situated employees.

The trial court implemented safeguards after trial to address fairness and due process, including a process for additional employees to affirmatively opt in and confirm representation. The Appellate Division agreed that, in these circumstances, the employer had notice and opportunity to defend itself against those claims.

What This Decision Means for New Jersey Employees

If you are wondering whether your situation fits what the ESLL protects, this case is a useful guidepost. You may want to take a closer look if any of the following sound familiar:

• Your employer says you “only have vacation” time, which you are not allowed to use for your own medical appointments, medical appointments for a family member, or other ESLL-protected reasons
• You are required to provide a doctor’s note or other documentation when you were off from work for less than three days
• The company routinely denies requests for time off for medical reasons or other reasons covered by the ESLL, or acts as if granting those requests is discretionary
• Your workplace does not post ESLL notices or provide clear written information about your rights under it
• Your pay records do not show sick leave accrual and use in any clear way
• Newer employees are told they cannot take any paid time off until they hit a tenure milestone, even though the ESLL is based on hours worked

If you face these types of issues, it does not necessarily mean you have a claim, but it does mean you should consider getting legal advice before you assume your employer’s policy is “just how it is.”

Talk With Rabner Baumgart Ben-Asher & Nirenberg, P.C. About New Jersey Earned Sick Leave Issues

If you believe your employer’s paid leave policy did not comply with New Jersey law, or you were denied earned sick leave you should have been allowed to use, the Bergen County employment lawyers at Rabner Baumgart Ben-Asher & Nirenberg, P.C. can help you understand your options and what next steps make sense for your situation. To speak with an attorney, call (201) 777-2250.

The Takeaway

In McDermott v. Guaranteed Rate, Inc., the Appellate Division held that the federal Ending Forced Arbitration of Sexual Assault and Harassment Act (EFAA), can make a pre-dispute arbitration agreement unenforceable for the whole case, as long as the case includes a viable claim involving sexual harassment or sexual assault. In other words, an employer may not be able to force you to split your claims, with part of your lawsuit in court and the rest in private arbitration, if your case includes a properly pled sexual harassment claim.

This was a matter of first impression in New Jersey, meaning New Jersey appellate courts had not previously issued a published decision on the scope of the EFAA in this context.

What Happened in the Two Cases the Court Decided Together

The court issued one published opinion covering two separate workplace cases that raised the same core issue.
In the first case, the employee, Megan McDermott, alleged she experienced sexual harassment and gender-based discrimination while working for a mortgage company. She also asserted additional claims tied to her employment relationship.

The trial court allowed her claims relating to sexual harassment to stay in court, but sent her other claims to arbitration.
In the second case, the employee, Geraldine Rivera-Santana, alleged a hostile work environment involving sexual harassment, along with pregnancy-related allegations including retaliation and failure to accommodate. The trial court kept the sexual harassment-based claim in court but ordered that her other claims had to decided in arbitration because it viewed them as arising from a different set of facts.

The Appellate Division rejected the split-the-case approach, and ruled that once the EFAA applies, it can apply to the entire case.

Why This Matters If You Signed an Arbitration Agreement

Arbitration clauses often change the playing field. Arbitration is private. The rules can be different than in court. The ability to appeal typically is very limited. There is no right to a jury trial. Many employees understandably feel that being forced out of court, especially in a sexual harassment case, can make it harder for them to be heard.

This Appellate Division’s opinion gives employees more leverage when sexual harassment is part of their story. If you have a case with multiple claims that all stem from your employment, and one of those claims relates to sexual harassment or sexual assault, then the court’s decision supports keeping everything together in one public court case, instead of forcing you to fight on two separate tracks.

There Are Important Limits to Know

This decision is powerful, but there a few things to keep in mind. First, most courts have concluded that the EFAA applies only to disputes or claims that arose or accrued on or after March 3, 2022.

Second, you still need a viable sexual harassment or sexual assault claim, or a related claim such as retaliation for reporting sexual harassment. Courts can dismiss claims that are not adequately pled, and employers may try to argue that a harassment allegation was added only to avoid arbitration.

What You Should Do if This Sounds Like Your Situation

If you believe your employer is trying to force your case into arbitration, the details matter, including what your agreement says, what happened and when, and how your claims fit together under New Jersey law and the EFAA. It is also important to act quickly because waiting can limit your options.

A few practical steps can help you protect yourself right away.

• Save the documents you already have, including your offer letter, arbitration agreement, handbook acknowledgments, pay records, and key emails or messages.
• Prepare a timeline while it is still fresh, including dates, witnesses, and how the conduct affected your work.
• Avoid signing a separation or release paperwork without understanding what rights you are giving up.
  Those steps are not a substitute for legal advice, but they can preserve facts that often become critical later.

Jonathan Nirenberg’s Connection to This Decision

I had the honor of submitting an amicus (friend of the court) brief in support of Ms. Rivera-Santana appeal, and to participate in the oral argument, on behalf of the National Employment Lawyer’s Association of New Jersey (NELA-NJ). That work reflects our firm’s commitment to protecting employees’ rights when serious workplace misconduct is at issue.

Talk With a New Jersey Employment Lawyer About Forced Arbitration and Sexual Harassment Claims

If you experienced sexual harassment at work and your employer is pointing to an arbitration clause to keep your case out of court, you deserve a clear answer about what the law allows and what your next move should be. To speak with a New Jersey employment lawyer at Rabner Baumgart Ben-Asher & Nirenberg, P.C., contact us online or call (201) 777-2250 to schedule an initial consultation. We represent individuals throughout New Jersey and offer consultations in person, by phone, and by Zoom.

If you are searching for a Bergen County employment lawyer because you believe your employer passed you over due to age, this opinion can help you understand they type of facts that may support your claim.

The Background

Guy Campagna worked for the Washington Township Public School District as a physical education teacher. He began with the District in 2006 and served as the sole PE teacher at an elementary school. According to the court’s opinion, he maintained a clean disciplinary history, received positive evaluations, and was recognized as the District’s Teacher of the Year for the 2017 to 2018 academic year.

In September 2020, the District posted an anticipated vacancy for a physical education position at Bunker Hill Middle School. Mr. Campagna applied because he wanted to transfer after many years teaching at the elementary level. He participated in a first-round remote interview with the middle school principal and assistant principal.
The District chose not to select Mr. Campagna for a second-round interview. It ultimately hired a 31-year-old candidate from another school district. Mr. Campagna was 50 years old at the time.

After the District made its decision, the principal called Mr. Campagna and indicated that he chose to advance “novice teachers” and explained that he preferred candidates who he could “groom” and “train from scratch” to fit the culture he was building.

Mr. Campagna questioned why experience would make him less adaptable, and emphasized that he took direction and worked within whatever systems were in place. The principal reportedly clarified that he was not saying Mr. Campagna could not perform the job, but that the candidate the District selected could fulfill certain aspects “in a better way,” and he reassured him that he did not doubt Mr. Campagna was a team player.

Those details mattered later, because the District’s litigation position emphasized different themes.

The Legal Claims

Mr. Campagna asserted age discrimination claims under two laws: the federal Age Discrimination in Employment Act (ADEA) and the New Jersey Law Against Discrimination (NJLAD). Both laws prohibit an employer from refusing to hire or promote someone because of their age. The court applied the same basic framework to analyze both claims.

At this stage of the case, the question was not whether Mr. Campagna definitively proved discrimination. Rather, the question was whether the District was entitled to win as a matter of law before trial. The court held that it was not, and allowed the case to proceed.

Why the Judge Denied Summary Judgment

The judge’s ruling turned on how discrimination cases can be proven with circumstantial evidence, and whether a reasonable jury could view its explanations as a pretext or cover for age bias.

Step One Was Not a High Bar

On its motion, the District argued Mr. Campagna was not “qualified” because he supposedly did not interview well, and the job required strong interpersonal skills. The court rejected that argument, explaining that “qualification” for purposes of the first step of a motion for summary judgment is measured by objective requirements, such as education and experience, rather than by subjective impressions about how an interview went. Since the District did not dispute that Mr. Campagna had the objective background to be a viable candidate, the court found he met this part of the test.

The Age Gap Supported an Inference of Discrimination

The court also found the 19-year age difference between Mr. Campagna, who was 50, and the selected candidate, who was 31, to be significant. That disparity was more than enough to support an inference of age discrimination under the governing case law.

The District tried to argue that the administrators involved in the hiring decision did not know anyone’s age. The court explained that a plaintiff does not need direct proof that the decisionmakers knew his exact birthdate. A jury can infer awareness from common indicators like appearance and experience timelines. Here, the court noted that the resumes reflected career dates that could allow someone to infer relative age, and the administrators plainly focused on Mr. Campagna’s experience during the hiring process.

The Court Found Evidence a Jury Could Treat as “Pretext”

At the final stage, the court focused on whether a jury could reasonably disbelieve the District’s stated reasons for selecting another job candidate. The judge highlighted multiple points that could support that conclusion, including:

First, the District’s explanations could be viewed as shifting. The principal’s phone call emphasized advancing “novice teachers,” yet the District later leaned heavily on alleged interpersonal concerns. The contrast between praising Mr. Campagna  as a team player during the telephone call and later arguing he was difficult to work with is the kind of inconsistency juries are allowed to consider evidence of discrimination.=

Second, the court noted the tension between the District’s claimed “age blindness” and the record showing administrators focused on experience and used language that plausibly could connect to age, such as preferring “novice” candidates.

Third, the court observed that the District’s negative characterization of Mr. Campagna was not uniformly supported by other testimony in the record. For example, his direct supervisor had previously nominated him for Teacher of the Year and described him in glowing terms, and the assistant principal did not share the principal’s harsh view of his interview.

Putting those points together, the judge concluded that a reasonable jury could find the District’s justifications are unworthy of belief and infer a discriminatory motive. Because of that, the court allowed the case to proceed.

Why This Decision Matters to Employees Considering an Age Discrimination Claim

Employees often get told that a promotion or transfer went to someone “younger,” more “dynamic,” “new blood” or supposedly easier to train, while the employer later insists its decision was purely about “fit” or “interpersonal skills.” This decision is a reminder that courts can treat subjective rationales with caution, especially when the record includes significant age disparities, strong performance history, and evidence that the employer’s story changed over time.

If you are dealing with a similar situation, documenting what you were told at the time, preserving written communications, and keeping a clear timeline of events can matter, because inconsistencies can become evidence. A Bergen County employment lawyer can help you evaluate whether what happened to you fits within the ADEA, the NJLAD, or both, and whether your evidence supports a legal claim.

Speak With a Bergen County Employment Lawyer

If you believe you were denied a job opportunity, transfer, or promotion because of your age, Rabner Baumgart Ben-Asher & Nirenberg, P.C. can help you understand your options under New Jersey law and federal law. To discuss your situation with a Bergen County employment lawyer, call Rabner Baumgart Ben-Asher & Nirenberg, P.C. at (201) 777-2250.