Honest belief rule

What Happens When an Employer Honestly (but Mistakenly) Believes Its Employee Has Misused Medical or Family Leave? Read on

By JW Law
We’ve all heard the saying that “honesty is the best policy.” Well, what about an honest mistake? What happens when an employer discharges an employee because it honestly (but mistakenly) believes the employee has misused leave under the Family and Medical Leave Act (FMLA)? Can an honest mistake defense be enough to fend off an employee’s FMLA retaliation claim? In one word- Yes.

In a recent ruling, the Third Circuit Court of Appeals stated that an employer’s honest belief- even if mistaken- is sufficient to defeat FMLA retaliation claim.


In an article titled “Employer’s ‘Honest Belief’ Is Complete Defense to FMLA Retaliation Claim,” for the New Jersey Law Journal, Javerbaum Wurgaft employment attorney Andrew Moskowitz discussed the Honest Belief rule with regards to Capps v. Mondelez Global.

To Read the full article: Click Here

In this particular case the plaintiff employee, Fredrick Capps, suffered from Avascular Necrosis, which was a “loss of blood flow, severely limiting oxygen and nutrient delivery to the bone and tissues, essentially suffocating and causing death of those cells.” Capps developed arthritis in both hips which necessitated bilateral hip replacement in 2003. He experienced severe pain, sometimes lasting for days or weeks at times. He was continuously re-certified for intermittent FMLA leave until 2014 when his employer at Mondelez, terminated his employment for violating a policy concerning dishonesty.

Honest belief rule
The employer claimed that Capps had used FMLA leave for dates related to his conviction for driving under the influence (DUI) of alcohol. Capps argued that Mondelez: (1) interfered with his rights under the FMLA; (2) acted in retaliation to Capps’ proper use of FMLA leave; and (3) violated the Americans with Disabilities Act.

The court found that Mondelez had provided a legitimate, nondiscriminatory reason for terminating Capps. In so holding, the Third Circuit agreed that when an employee is discharged because of an employer’s “honest mistake,” employment laws “offer no protection.” The Court gave employers who purport to terminate employees because they are misusing their FMLA leave an ironclad defense. As long as the employer asserts that it “honestly believed” that the employee was misusing his or her leave, this defense is sufficient as a matter of law to defeat an FMLA retaliation claim.


The lesson from the Capps case for employees is dot your ‘i’s and cross your ‘t’s. If you are requesting a leave, make sure that you submit your documentation to your employer in a timely fashion. Respond promptly to any requests for additional information and, most importantly, do not make any false statements.

[Read Related: Javerbaum Wurgaft Attorney Andrew Moskowitz Obtains $375,000 Settlement in Age Discrimination Lawsuit]

Judge Marguerite Simon

Governor Christie Nominates Javerbaum Wurgaft’s Marguerite Simon to ELEC

By JW Law

New Jersey Governor Chris Christie, at the request of Senator Loretta Weinberg, nominated Judge Marguerite Simon (Ret.) of Javerbaum Wurgaft to the board of the New Jersey Election Law Enforcement Commission (ELEC). Simon (D), formerly Presiding Judge of the Chancery Division in Bergen County, is currently Counsel to Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins in Springfield where she practices alternative dispute resolution.

Simon was nominated by Governor Christie on February 27 to the board of ELEC, an independent State Agency charged with a critical mission of policing campaign finance, lobbying, and pay-to-play issues across the State. The State Senate Judiciary Committee is scheduled to meet later this month on her nomination to become ELEC Commissioner. If approved, she will join ELEC Chairman Ronald DeFilippis (R), Eric Jaso (R), a former Federal prosecutor, and Stephen Holden (D), a retired State Superior Court Judge from Camden County, restoring the Commission’s traditional partisan balance of two Democrats and two Republicans.

Judge Marguerite Simon
Her appointment to the board will help restore the election regulator to its full power for first time since 2011. For the past year, the Board was unable to convene due to vacancies. While the agency continued to investigate the disclosure laws, the lack of a requisite quorum prevented the Commission from holding hearings and delivering swift justice to offenders. With the appointment of Jaso and Holden, the Board recently resumed work. Simon now hopes to help fast-track the proceedings.

“I am sincerely honored to have been nominated to the board. I look forward to working with other board members of the ELEC,” said Simon.
Her nomination comes just in time for the rapidly approaching election for Governor, and the Legislative Assembly, the big-money elections under state control.

dram shop law explained

Javerbaum Wurgaft Attorneys Answer the Call for Victims of Drunk Driving

By JW Law
Unfortunately, motor vehicle accidents are a fact of life, and at times cause catastrophic, life-altering injuries or death to their victims. What is particularly troublesome is when an accident is caused by a drunk driver. It is easy to blame a drunk driver, but we need to remember how those drivers became drunk. In many situations, the drivers were served alcohol at a party, or at a bar or restaurant, and were allowed to leave when someone knew or should have known that they were drunk. In those situations, a claim can be made under our law against the bar or social host who was responsible for allowing the driver to become intoxicated and then drive.

Recently, attorneys at Javerbaum Wurgaft have been successful in holding bars and restaurants responsible under New Jersey’s “dram shop” laws. Francisco Rodriguez, a partner in the Jersey City office of Javerbaum Wurgaft, successfully settled a case on behalf of a family who lost a 21-year-old at the hands of a drunk driver for $1.35 million dollars against both the driver and a Hudson County bar. Frank said “no matter how much money is received it will not give the family back their son and brother, however, society must enforce the rules about drinking and driving for the safety of others.”

dram shop law explained

Frank’s settlement comes on the heels of Eric Kahn’s settlement of a case for $3.1 million dollars against a drunk driver as well as the restaurant where he was drinking immediately before the accident occurred. Mr, Kahn, the managing partner at Javerbaum Wurgaft working primarily out of its Springfield office, said “while my client will never recover from her injuries, it was important to hold both the drunk driver responsible as well as the restaurant that over served him on the afternoon of the accident. Our dram shop laws are designed not only to compensate victims of accidents involving in drunk drivers, but also to act as a deterrent to establishments that are more concerned about profits from selling alcohol rather than the safety of others.”
In order to make our roads and highways safer for everyone, people who serve alcohol must be held accountable when serving alcohol for profit. If you or a loved one has been injured at the hands of a drunk driver, or someone you suspected was drinking, call Javerbaum Wurgaft and talk to a lawyer familiar with the law who can help you.