EMPLOYER CLIENT ALERT: September 2008

A recent New Jersey Appellate Division case, Roa vs. LAFE, indicates that employers may face liability for post termination retaliation.

Fernando and Liliana Roa, who are married, worked for the defendant employer, LAFE. The Vice President of LAFE, Marino Roa (the brother of plaintiff Fernando) had an extramarital affair. Initially, Marino Roa identified Fernando as the person having the affair to escape blame from his wife; Fernando initially covered for his brother, Marino, Roa, but later he disclosed to Marino’s wife that it was Marino, not he, who had engaged in the extramarital affair.

The Roas allege that after Fernando confided in Marino Roa’s wife, the VP began to harass them. Fernando made an internal complaint against his brother that his brother sexually harassed LAFE employees. The Roas were both terminated. They later sued LAFE, claiming they were discharged in retaliation for their complaints.

The Roas also alleged that LAFE continued to retaliate against them AFTER they were fired. For example, they said the Company lied when Lilliana applied for unemployment benefits. More specifically, the Roas alleged that LAFE made a misrepresentation to the New Jersey Department of Labor regarding the reason for Lilliana’s discharge that resulted in an initial denial of benefits.

Fernando claimed that LAFE also wrongfully terminated his medical insurance coverage, and as a result, the insurance company denied reimbursement for surgery his wife underwent during the time he was employed. The Roas learned that coverage had been denied after they were fired. The Roas sued LAFE and Marino Roa for retaliation under the New Jersey Law Against Discrimination which prohibits discrimination in employment and retaliation against employees who engage in certain “protected activities” defined in the statute.

One of the issues before the Court was whether an employee can retaliate against an employee even after he has been terminated. The Appellate Division found that post termination conduct can be actionable under the New Jersey LAD. While Lilliana’s claim was dismissed (she did not file the claim within the statute of limitations), the Appellate Court did not dismiss Fernando’s allegation that LAFE retaliated against him by canceling his insurance coverage. Rather, it held that retaliation “need not be related to the workplace” to be actionable.

The result in this case should serve as a reminder to all employers to be cautious in the treatment of ex-employees as employer liability to former employees can attach to actions taken after the employment relationship ends.

This Laddey, Clark & Ryan, LLP Client Alert provides information of general interest to our readers. It is not intended, and should not be used, as a substitute for consultation with legal counsel. If you have any questions regarding specific issues raised in this Employer Alert, you may contact Thomas Ryan, Esq. or Linda Day, Esq. of Laddey, Clark & Ryan’s Employment and Labor Practice Group at (973)729-1880.

The Employment and Labor Practice Group

Thomas N. Ryan, Esq.	Ursula H. Leo, Esq.	Michael S. Garofalo, Esq.	Linda Day, Esq.