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Thursday, October 19, 2017

Should My Co-worker File a Lawsuit with Me?

As stated in my last article, if an employee believes he/she has a claim for two or more types discrimination when terminated by the same employer, the terminated employee is bound by the “Entire Controversy Doctrine.” All claims by one employee arising out of the same wrongful acts of an employer, should be filed together within the same lawsuit. 

However, when there is more than one employee who has a claim against the same employer, it requires a more careful analysis as to whether, in certain specific circumstances, New Jersey law allows for them to each file a lawsuit separately or of they should join together as plaintiffs in one lawsuit.

Again, in certain circumstances, the Entire Controversy Doctrine may require two or more employees to join together in one lawsuit and not file separately. I recently represented several female employees in one discrimination lawsuit that alleged harassment, retaliation, and illegal constructive discharge. The case successfully settled for six figures after the lawsuit was filed and was in the "discovery" period, but before it went to trial. 

In this lawsuit, some of the employees alleged age harassment and discrimination, and another alleged race harassment and race discrimination. In this particular matter, the facts alleged against the same employer by each of the plaintiffs, overlapped with the facts alleged against the same employer by the other Plaintiffs, as well as the times and places of the incidents of harassments, so the employees joined together in one lawsuit under the entire controversy doctrine.

Every case is fact specific and requires a careful analysis.

The basic court rule in this is Rule 4:30A which the courts have illuminated with more expanded clarifications and examples:

Rule 4:30A. Entire controversy doctrine

Non-joinder of claims required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine, except as otherwise provided by R. 4:64-5 (foreclosure actions) and R. 4:67-4(a) (leave required for counterclaims or cross-claims in summary actions). Claims of bad faith, which are asserted against an insurer after an underlying uninsured motorist/underinsured motorist claim is resolved in a Superior Court action, are not precluded by the entire controversy doctrine.

New Jersey courts have further defined the parameters of the doctrine. In Manhattan Woods Golf Club v. Arai, 312 N.J. Super. 573, the Court stated that New Jersey's Entire Controversy Doctrine requires parties to join in one lawsuit, all legal and equitable claims related to a single underlying transaction. In employment law, as well as in other types of claims, the key to whether parties must join as plaintiffs in one lawsuit, or else be barred, is the factual pattern, whether there are interrelated facts, that are part of the same controversy.

In 1995, the New Jersey Supreme Court held that it is not required that the claims share any "commonality of legal issues," as long as the parties' distinct claims are aspects of a single larger controversy because they arise from interrelated facts. DiTrolio v. Antiles, 142 N.J. 253, 271, (1995).

In another 1995 case, the New Jersey Supreme Court stated that it is the factual circumstances giving rise to the controversy itself which triggers the requirement of joinder of parties to create a cohesive and complete litigation. Mystic Isle Dev. Corp. v. Perskie & Nehmad, 142 N.J. 310, at 323,(1995).

However, there must be a fairness to not only the judicial system in terms of not wasting the court's resources, there must alsop be a fairness to the individual parties. In a later case in 1997, the New Jersey Supreme Court defined the principles of fairness underlying the Entire Controversy Doctrine as "fairness to the parties and fairness to the system of judicial administration." Gelber v. Zito Partnership, 147 N.J. 561, 565 (1997).

Both the joining of claims in one lawsuit against a defendant employer and joining of two or more parties as plaintiffs are subsets of the doctrine that share a commonality of purpose.

In Cogdell v. Hosp. Ctr. at Orange, 116 N.J. 7, the court discussed that the mandatory party joinder rule and  the mandatory claims joinder rule are conceptually part of the same doctrine. The court stated that from that point forward the entire controversy doctrine encompassed both the mandatory party joinder rule, N.J. Ct. R. 4:28-1(a), and the mandatory claims joinder rule, N.J. Ct. R. 4:27-1(b), because both rules had similar purposes to promote judicial efficiency,  economy and fairness to the parties.

If you believe you were terminated because of your race, sex or age, etc., and another employee was also terminated who believes discrimination was a factor, you should consult with an experienced employment law attorney to decide on whether it is better to file jointly or separately.

What You Can Do

If you believe that your employer used race, age, or sex as the determining factor as to who to keep and who to let go, it is important that you consult with an attorney who is experienced in discrimination. I am an aggressive and compassionate employment law attorney who is experienced in representing older workers, women, LGBT, and minorities. 

If you are being subjected to such unlawful workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, Western and Northern NJ to meet with clients.


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