Fw: Cruise Hand Who Rocked the Boat Wins $560K Whistleblower Award

[shreela manohar]

On Saturday, 10 May 2014 12:51 AM, Shaw <abhish...@gmail.com> wrote:

http://www.njlawjournal.com/id=1202654540695/Cruise+Hand+Who+Rocked+the+Boat+Wins+560K+Whistleblower+Award%3Fmcode=0&curindex=0&curpage=ALL

Cruise Hand Who Rocked the Boat Wins $560K Whistleblower Award

Mary Pat Gallagher, New Jersey Law Journal

A pleasure cruise company that badmouthed a deckhand after he sued over alleged violation of overtime laws has been hit with a $560,000 whistleblower verdict, including $200,000 in punitive damages, by a New Jersey jury.

Howard Flecker III won at trial after an appellate court ruled he could proceed with his claim that Statue Cruises of Jersey City created a hostile work environment by inciting his co-workers against him, telling them he was to blame for a cut in everyone’s hours.

The 2012 ruling, in Flecker v. Statue Cruises, expanded the universe of retaliatory conduct actionable under the Conscientious Employee Protection Act beyond such concrete acts as discharge, suspension, demotion, denial of promotion, reassignment, pay cuts and changes in working hours and conditions.

The May 2 verdict included  $300,000 in emotional distress damages and $59,458 in back pay.

Flecker was a deckhand for Statue Cruises, which provides boat rides to the Statue of Liberty and Ellis Island from Liberty State Park in Jersey City and Battery Park in Manhattan.

He sued the company in Hudson County Superior Court on Sept. 10, 2009, claiming that a provision of the collective bargaining agreement that covered him and 40 to 45 other unionized employees was illegal under the New Jersey Wage and Hour Law. It says the overtime pay rate—time-and-a-half the regular hourly wage—kicks in after 40 hours, but the agreement required paying overtime only after 48 hours.

Three weeks after the suit was filed, on Oct. 1, 2009, Statue Cruises’ chief operating officer, Michael Burke, circulated a memo advising employees that Flecker had sued and that until the case was resolved, it would try to mitigate damages by not scheduling union workers more than 40 hours per week.

Burke identified Flecker as the brother of a union official, indicated that the union might support the wage suit and stated “we are puzzled and disappointed that the union apparently did not consider the impact the lawsuit would likely have on you and our company.

“For those of you who will lose a day’s pay (or more) every week, I leave it to your good judgment whether Local 333’s possible involvement in this lawsuit was in your best interests,” he wrote.

Co-workers allegedly reacted in various negative ways. Some gave Flecker the cold shoulder while others confronted him, urging him to drop the case. One employee allegedly told Flecker that the suit was “ruining everybody’s career” and hurting people financially and that he wanted to burn the complaint “on the boat with everybody.”

A shop steward allegedly asked Flecker “to consider the whole, big picture” and the impact on more senior employees. That same person drafted a letter on behalf of himself and 20 others opposing the suit.

Flecker did not report the confrontations to management, which he claimed  he did not trust to help him after deliberately embarrassing him with the memo.

His lawyer, Ravi Sattiraju, demanded that the company retract the memo on the ground that it violated CEPA.

The company responded through its attorney, Raymond McGuire of Kauff McGuire & Margolis in New York, that it was “well within its rights to engage in normal management practices (i.e., scheduling so as to limit the cost of overtime) and to limit any potential damages resulting from the lawsuit.”

Flecker added CEPA claims to his suit on Oct. 15, 2009, alleging his schedule was cut from 40 to 50 hours a week to 35 hours and the stress of encounters with co-workers forced him to resign.

Six weeks after that, Statue Cruises sent out what the appeals court referred to as “curative notices.” One instructed nonunionized captains not to discuss the case with deckhands. The other told unionized staff that Burke’s memo was not meant to influence their decision to join Flecker’s suit and the company would not interfere or retaliate.

In April 2011, Superior Court Judge Mark Baber dismissed the case on summary judgment. He held that the memo was not an adverse employment action because it was not a completed personnel action that impacted Flecker’s employment and that the overtime claim was preempted by federal law.

Appellate Division Judges Francine Axelrad, Paulette Sapp-Peterson and Mitchel Ostrer reversed on both claims. They found the memo and the reduced hours could constitute adverse action under CEPA and they remanded on the overtime claim for a decision on the extent to which Statue Cruises’ operations extend into federal waters, and if so, whether applying state overtime law would prove so disruptive to federal law that it should be preempted.

On remand, Judge Lawrence Maron dismissed the overtime claim on preemption grounds in June 2013, leaving the CEPA claims, which went to trial in mid-April before Judge Francis Schultz.

The jury found that cutting Flecker’s hours and inciting his colleagues to blame him for their loss of wages created a hostile working environment and resulted in a constructive discharge, said Sattiraju, who heads a Princeton firm.

“The employer put something into motion. This was the likely result. They’re responsible,” he said, adding that if the memo were not ruled retaliatory, it would have had a chilling effect.

Flecker was out of work for about a year. He now does similar work for equivalent pay with another employer, but the new job requires him to be away from his home and a special needs child for a week at a time, which was part of his emotional distress, Sattiraju said.

Statue Cruises’ local counsel Patrick McGovern, of Genova, Burns Giantomasi & Webster in Newark, said the company “is disappointed with the jury verdict, does not think it accurately reflects the facts in this case, and will be filing an appeal on two grounds of first impression”—whether Burke’s memo should have been excluded under the litigation privilege as a communication with potential overtime class members  and whether the retaliation claim under CEPA is preempted by the National Labor Relations Act.■

Contact the reporter at mgall...@alm.com.

Read more: http://www.njlawjournal.com/id=1202654540695/Cruise-Hand-Who-Rocked-the-Boat-Wins-%24560K-Whistleblower-Award#ixzz31FQj0nmU

--
You received this message because you are subscribed to the Google Groups "TN Labour" group.
To unsubscribe from this group and stop receiving emails from it, send an email to tn-labour+...@googlegroups.com.
For more options, visit https://groups.google.com/d/optout.