As a young lawyer at Mason, Griffin & Pierson, Elizabeth Zuckerman stumbled into a sexual harassment case as part of the volunteer lawyers program through Mercer County that she eventually argued before the New Jersey Supreme Court and won. She ultimately got paid on a contingency basis from the employer, but the client didn’t have to pay.
Her client was suffering from physical injuries as a consequence of the harassment that included developing an eating disorder. Although this was a discrimination lawsuit, Zuckerman says, “We were able to establish that the insurance company should have to pay for this kind of injury.” The case was resolved with what was then “a groundbreaking decision” because the Supreme Court found that the workers’ compensation policy would cover the employer for damages arising out of a sexual harassment claim. Today, she adds, many employers purchase employee practices liability insurance to cover cases like this.
“That case, Schmidt vs. Smith, launched my career in the employment field,” Zuckerman says.
Zuckerman explains why she decided to offer a class titled “Know Your Rights as an Employee” through the Princeton Adult School, Tuesdays, February 11, 18, and 25, from 7 to 8:30 p.m. at Princeton High School. Cost: $55. For more information or to register visit www.princetonadultschool.org.
“My practice is focused exclusively on employment law for employees, and there are issues that come up that I think are interesting and worth talking to people about, like the difference between unfair treatment and illegal treatment,” she says. She invites potential students to come with questions about their own employment situations or those of friends and family.
Her years working in the employment arena give her insight into the complexities of cases where an employee or former employee attempts to take an employer to task.
Age discrimination: According to the laws of New Jersey and most states across the country, an employer can terminate an employee at any time, with or without cause, and similarly an employee can leave without notice and without cause. “Of course,” Zuckerman says, “the employer holds all the power and the cards.”
If an employer, for example, thinks an employee is not working out, or a new supervisor brings in their own people, or if there is a complaint about an employee and an investigation concludes that the employee has done something wrong, they can be terminated. In the third case, Zuckerman says, “even if I can prove nothing was done wrong, they can still fire you unless you can prove that the employer is motivated by an illegal reason, like age, gender, or disability discrimination.”
Suppose an employer fires a 65 year old and replaces them with a 35 year old. First of all, she says, it is not against the law to terminate someone to hire someone else for less money, and an employer can fire someone who is 65 and replace them with a 35 year old. But because of the strong correlation between age and salary, a situation like this “looks like age discrimination, and that gives me ammunition to negotiate a settlement or, next, bring a lawsuit.” Employers who want to protect themselves, she adds, should have offered the older employee the chance to keep the job at the reduced pay that the younger person would get.
Medical marijuana: Next week Zuckerman is arguing a case before the New Jersey Supreme Court, Justin Wild vs. Carriage Funeral Holdings Inc. She will argue as amicus (an impartial advisor to a court of law in a particular case) on behalf of the National Employment Lawyers Association-NJ.
The case involves Justin Wild, a cancer patient who had been prescribed medical marijuana to use at night to help with pain. In the course of his job as a hearse driver, he was rear-ended, and his employer requested that he be tested for drugs. “He told the employer he would test positive for marijuana, and his employer fired him even though there was no evidence that he was under the influence at his job,” Zuckerman says.
So Wild filed a lawsuit for wrongful termination, alleging disability discrimination and failure to accommodate. After the trial court dismissed the case, the appellate court reversed that decision, finding that Wild did have a claim for disability discrimination. The employer petitioned the New Jersey Supreme Court, which agreed to hear the case.
In the case, argued February 4, she says the employer will argue that employers are allowed to have a drug-testing policy, that marijuana is illegal even though it has been decriminalized, and that they are allowed to terminate people for testing positively for an illegal drug.
“Our position is that the New Jersey law against discrimination protects employees with disabilities from discrimination. When a disabled employee is taking a legal medication that is prescribed by his doctor, he cannot be terminated for taking a medication that is lawfully prescribed unless the employer can show that somehow the medication interferes with the person’s ability to do their job,” Zuckerman says.
Whistleblowers: If an employee complains about an illegal or unethical activity and then is terminated for that complaint, that would be considered retaliation under the New Jersey whistleblower statute, the Conscientious Employee Protection Act. But, Zuckerman notes, “there is a difference between a claim where someone blows a whistle and is retaliated against and a completely different situation where a person is terminated and tries to use evidence of wrongdoing to get leverage in a settlement.”
Sometimes, for example, “would-be clients” call her with a story like this: I was terminated, and I have evidence that my employer was engaged in some wrongdoing, and I know that if that got out the employer would be really upset, so I think I can sue the company. “That, in my opinion, crosses the line into essentially blackmail,” she says. So she tells the person, “Even if you are right that your employer engaged in wrongdoing, that’s not why you were terminated, so you can’t use that evidence as a lever.” She advises the person instead to report the issue to an appropriate regulatory body, for example, the Internal Revenue Service.
Wage Disparity: New Jersey’s relatively new Wage Theft Act and the federal Equal Pay Act deal with issues involving wage disparity. The former allows employees to pursue claims of wage disparity, where the disparity is due to the employee’s protected status, and significantly enhances employer penalties. “They provide a remedy if you can prove that the employee is being paid less due to some protected status, such as age, race, or gender,” Zuckerman says.
But determining whether a wage disparity exists can be complicated. First of all, she says, if a woman has been underpaid in the past and goes to new job where the employer asks what she made in her old job, an old wage disparity continues, and there is some evidence that women as a group tend to be less aggressive about negotiating salary for themselves. “All these things conspire to create a disparity in income, but in these cases you have to compare apples to apples,” she says.
Suppose, Zuckerman says, a woman comes to her and tells her she recently learned that a male counterpart in the same department, with the same job title and duties, earns $20,000 more per year than she does. “If a female is making less, employers can argue that this person does these other things or has another credential — nondiscriminatory explanations for wage disparity,” she says. “These cases can be complicated, and you have to cut through that and find an equivalent employee to compare your client to.”
Zuckerman grew up in South Orange, where her father and uncle were both lawyers; she spent two years at Colorado College, then graduated from the University of Michigan in Ann Arbor with a bachelor of arts in English. In 1986 she received her law degree from the University of California at Davis School of Law, where she was executive editor of the law review. From 1986 to 1990 she served as deputy attorney general in the New Jersey Department of Law and Public Safety, and in 1991 she joined Mason, Griffin & Pierson in Princeton, first as an associate and then as partner.
In 1997 Zuckerman co-founded Zuckerman & Fisher, where she handled virtually all aspects of employment and discrimination law.
At the request of the chief justice of the New Jersey Supreme Court, Zuckerman served for three years as co-chair of that court’s Task Force on Gay and Lesbian Concerns. She has also served as vice president and president of the New Jersey chapter of the National Employment Lawyers Association.
About three years ago her partner, George Fisher, retired, and in January she decided to merge her practice with Mason, Griffin & Pierson.