Wrongful Discharge and Termination of Employment
Before acting, call our wrongful discharge employment law attorneys for legal advice.
As previously stated, at-will employees can be fired for any reason or for no reason at all. There are statutory exceptions to this rule, however. At-will employees cannot be fired because of their age, race, sex, religion, or disability, for taking a qualified medical leave, for objecting to a polygraph test, for serving on a jury, for fulfilling military duties, or for merely having a criminal conviction. I address these topics later on in this website. You can read about these topics very generally on this page and much more thoroughly in the table of contents found on the right side of this page.
A Termination From Employment Cannot Be Against the Public Policy of New Jersey.
Even with at-will employees, employers are not permitted to terminate an employee(s) if doing so would violate an important public policy. Examples of impermissible termination include when an employee makes certain statements of public concern, seeks workers’ compensation or unemployment compensation, reports workplace safety violations, or refuses to engage in or commit a crime.
The examples listed above are not an all-inclusive list of grounds for wrongful termination. Many state laws, such as New Jersey’s Conscientious Employee Protection Act and the Law Against Discrimination (LAD), provide far broader protections to at-will employees than federal law does.
Employment – Law Against Discrimination Retaliation
New Jersey’s Law Against Discrimination, N.J.S.A. 10:5-12(d), addresses claims of retaliation by an employee. It reads as follows:
It is unlawful for any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has sought legal advice regarding rights under this act, shared relevant information with legal counsel, shared information with a governmental entity, or filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.
An action for retaliation under the LAD is based on facts that the employee “engaged in a protected activity known to the employer,” the employee was “subjected to an adverse employment decision,” and there is a causal link between the protected activity and the adverse employment action.
The Law of Wrongful Termination and Discharge of Employment
New Jersey’s Law Against Discrimination (LAD)
In addition to providing some of the same protections as federal law, New Jersey’s LAD is a comprehensive civil rights statute that protects employees from discrimination based on characteristics not protected under federal law. One important example is an employee’s sexual orientation. An employee’s rights and protections under the LAD are often broader than under federal law, and those who feel they have been unfairly treated in an employment context should consider this statute.
As employment and labor lawyers, our firm has litigated numerous cases involving complex discrimination, fair housing, A.D.A., L.A.D., covenants not to compete, and other labor and employment relations claims. Our firm served as lead NJ counsel in a multi-million-dollar class action case involving hundreds of employees, a large international corporation, and millions of dollars in damages.
Conscientious Employment Act, Also Known as Employee Whistleblower Protection
Many federal and state laws protect employees who take action against workplace violations.
New Jersey provides additional protection to employees under the New Jersey Conscientious Employee Protection Act (CEPA). If you are an employer facing a whistleblower claim or an employee who may have been unlawfully terminated, it is essential that you contact us immediately (if you are considering or pursuing legal action).
This is because many federal and New Jersey laws require initiating legal or administrative proceedings within 30 to 180 days, depending on the statute being claimed.
NJ Employment Law and the Whistleblower Statute Video
Conscientious Employee Protection Act (CEPA) “No Good Deed Goes Unpunished”
CEPA ensures that employees are protected from employer practices that are illegal or fraudulent, or violate clear mandates of public policy. It is a statute that is construed liberally to effectuate its social goals.
CEPA’s critical provisions are found in N.J.S.A. 34:19-3, Section 3of the law, which sets forth the Statute’s prohibition of employer retaliation for an employee’s protected activities, which are identified in the subsection(s) of the Statute.
The law states:
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes:
(1) Is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care; or
(2) Is fraudulent or criminal, including any activity, policy, or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity;
b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer, or another employer, with whom there is a business relationship, including any violation involving deception of or misrepresentation to any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or in the case of an employee who is a licensed or certified health care professional, provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into the quality of patient care; or
c. Objects to or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) Is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, if the employee is licensed or certified health care professional, constitutes improper quality of patient care;
(2) Is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity; or
(3) Is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
Law Against Discrimination – Unlawful Sexual Harassment
To establish a claim of sexual harassment, a plaintiff must demonstrate that: (1) the harassment would not have occurred but for the employee’s sex or gender; (2) the conduct was sufficiently severe or pervasive; (3) a reasonable person of the same sex or gender would find the conduct hostile or abusive; and (4) the harassment altered the terms, conditions, or privileges of employment by creating a hostile or abusive work environment.
There are basically two kinds of sexual harassment recognized by federal and New Jersey state law:
(1) Hostile-work environment – This kind of harassment occurs when an employer or agents of the employer (manager or non-manager) subject an employee to unwelcome sexual behavior (physical or verbal). A hostile work environment can exist if unwelcome conduct is severe and pervasive.
(2) Quid pro quo sexual harassment – This occurs when an employer (or agents of the employer) places terms and conditions of an employee’s continued employment on the return of sexual favors.
Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
- The victim need not be the person harassed; it could be anyone affected by the offensive conduct.
- Unlawful sexual harassment may occur without economic injury or termination of the victim from employment.
- The victim and the harasser may be women or men. The victim does not have to be of the opposite sex.
- The harasser’s conduct must be unwelcome.
The harasser can be the victim’s supervisor, an employer’s agent, a supervisor in another area, a co-worker, or a non-employee.
Are You the Victim of Sexual Harassment in the Workplace?
Disability Discrimination – Failure to Accommodate
The New Jersey Law Against Discrimination (LAD) prohibits employment discrimination because of a disability. Although the LAD does not explicitly address a reasonable accommodation requirement or claim, New Jersey Courts have uniformly held “that the LAD nevertheless requires an employer to reasonably accommodate an employee’s disability.” That requirement was adopted in an agency regulation administering the LAD and promulgating regulations for its implementation and enforcement. Unless it will impose an undue hardship on the operation of the business, an employer must “make a reasonable accommodation to the limitations of an employee with a disability.”
An employer can be sued and held liable for failure to accommodate a disability under the LAD if a plaintiff can demonstrate that he or she (1) qualifies as an individual with a disability or is perceived as having a disability, as that has been defined by statute (2) is qualified to perform the essential functions of the job, or was performing those essential functions, either with or without reasonable accommodations; and (3) that defendant “failed to reasonably accommodate his or her disabilities.” An employer is required to make a good faith effort to assist the employee in seeking an accommodation.
The NJLAD defines disability to mean a physical disability, infirmity, or disfigurement which is caused by illness, including but not limited to, lack of physical coordination and physical reliance on a remedial appliance or device. Here’s an example. Contracting a common cold or flu symptoms is not considered a disability, but complications, such as pneumonia and being immunocompromised, have been recognized as a disability under the NJLAD. Thus, an employee who is disabled due to the complications of an illness has the right to seek a reasonable accommodation(s) from the employer that is necessary for the employee to be able to perform the essential functions of the job.
An employee must also prove that he/she is qualified to perform the job and that “an accommodation could have been reasonably achieved. The employee must show that a reasonable accommodation for his/her disability was possible even where the employer acted wrongfully in failing to engage in the interactive process to find such an accommodation. The employee must also show that the employer “failed to reasonably accommodate his or her disabilities.” The question of whether a proposed accommodation is reasonable is a question of fact for a Judge or Jury.
Reasonable accommodation starts with a request for accommodation by the employee followed by the employer’s response and initiation of an interactive communication. If it is alleged that the employer failed to participate in the interactive process, a disabled employee must show: (1) the employer knew about the employee’s disability; (2) the employee requested accommodations or assistance for his or her disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and (4) the employee could have been reasonably accommodated but the employer’s lack of good faith. Reasonable accommodations may include job restructuring, modified work schedules, or leaves of absence.
During the interactive process, the employer must reasonably accommodate an employee’s disability and limitations, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.
It is up to the employer to initiate the informal interactive process to determine what appropriate accommodation is necessary. This process must identify the potential reasonable accommodations that could be adopted to overcome the employee’s precise limitations resulting from the disability. Once a disabled employee has requested assistance, it is the employer who must make the reasonable effort to determine the appropriate accommodation. During the process, “both employer and employee bear responsibility for communicating with one another to identify the precise limitations resulting from the disability and potential reasonable accommodation that could overcome those limitations.”
Disability Discrimination
Discrimination Because of a Disability
Federal law defines a “disability” as a physical or mental impairment that substantially limits one or more major life activities. The Americans with Disabilities Act (ADA) prohibits discrimination against disabled individuals in employment as well as in public services, public accommodations, and public transportation.
The ADA prohibits employers from discriminating against qualified employees with disabilities in all aspects of employment, including job applications, hiring, promotion, compensation, training, and discharge.
Disability Defined
A disability under the LAD may be physical or non-physical. An individual is physically disabled or handicapped if he/she suffers from any physical disability, infirmity, or malformative disfigurement caused by bodily injury, birth defect, or illness (including epilepsy). Physical disability includes, but is not limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impairment, deafness or hearing impairment, muteness or speech impairment, or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device. An individual is non-physically handicapped if he suffers from any mental, psychological, or developmental disability, which (1) results from an anatomical, psychological, physiological, or neurological condition which (2) either (a) prevents the normal exercise of any bodily or mental functions or (b) is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.
Reasonable Accommodation Requirement
In particular, an employer must make reasonable accommodation to the limitations of a disabled applicant or employee unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business, making an adverse employment decision based on a finding that an individual’s handicap precludes job performance. Depending upon the circumstances, reasonable accommodation may include (1) making facilities readily accessible and usable to handicapped individuals; (2) job restructuring, including part-time or modified work schedules; (3) acquisition or modification of equipment or devices; and (4) job reassignments. Whether an employer has made a reasonable accommodation is determined on a case-by-case basis.
The following factors, among others, will be considered in determining whether an otherwise reasonable accommodation need not be made because of the undue hardship it would impose on the operation of the employer’s business:
- The overall size of the business in terms of employees, number and type of facilities, and budget;
- The nature of the operations, including the composition and structure of the workforce;
- The nature and cost of the accommodation needed;
- The extent to which accommodation would require waiver of an essential requirement of the job as opposed to a tangential or non-business necessity requirement.
Performance Of Disabled Individuals
The LAD does not prohibit disability discrimination when the disability reasonably precludes or impedes job performance. Employees are not required to tolerate egregious conduct of employees, even if the conduct in question was caused by a disability. The LAD is not violated where it can reasonably be determined that an applicant or employee, because of the nature and extent of a disability, and in spite of reasonable accommodation, is unable to adequately perform the essential functions of the job. That determination must be based upon an objective standard supported by individualized evidence.
Every ADA case is highly fact-specific, and not all individuals are protected. The ADA protects only certain individuals with specific medical conditions. New Jersey law also protects individuals with disabilities and provides greater protection than the federal ADA.
Have you been denied a reasonable accommodation, treated adversely because of your disability, or because your employer believes you are disabled? If so, consult an experienced employment attorney at Hanlon Niemann & Wright to learn whether you may be protected.
Have a question or legal matter that requires the advice of a NJ employment law attorney? Then contact Fredrick P. Niemann, Esq. at (732) 863-9900 or email him at fniemann@hnlawfirm.com to arrange a low-cost consultation in our Freehold (Monmouth County) office or at your place of business.
Gender Discrimination in the Workplace
To establish a case of gender discrimination, an employee must prove that plaintiff must prove that 1) he/she is a member of a protected class; 2) he/she was performing the job at a level that met her employer’s expectations; 3) he/she was terminated; and 4) he/she was terminated under circumstances that give rise to an inference of discrimination.
The Age Discrimination in Employment Act (ADEA) in New Jersey Provides Broad Protections
State laws make it illegal for employers to make decisions that are motivated by an employee’s age. Federal law also limits age-related lawsuits to persons who are 40 years of age or older.
Many employer actions can indicate that age was a motivating factor in a decision affecting one or more employees. Often, there are indications of age discrimination when an employee has been loyal and dedicated to an employer for a long period of time, but is terminated or subjected to disparate age-related treatment alone or toward other older employees by a new supervisor or manager.
There are different legal standards and different levels of proof required depending on whether an employee is allegedly part of a reduction in force, actually terminated from employment, not hired, or subjected to other adverse actions while still employed. But one thing remains the same, regardless of the type of adverse action premised on an individual’s age: it is illegal.
Religious Discrimination
Employers may not be familiar with their obligations concerning an employee’s religion or religious practices. Under federal and newly enacted New Jersey law, religion does not mean only mainstream or organized religions. Rather, an employee needs only to have a sincerely held religious belief, whether common or uncommon in the community.
There are several basic religious issues recognized by federal law that employers need to understand and address.
(1) Purposeful or indifferent willingness to make a reasonable accommodation:
Once an employee notifies his or her employer that a bona fide religious belief conflicts with a job requirement, the employer must make reasonable efforts to accommodate the employee. An employer’s failure to participate in a negotiation process with the employee and/or failure to reasonably accommodate an employee may violate federal or New Jersey law. The most common accommodations sought by employees are certain days off or times off during the day (often for prayer breaks), not having to shave, and being permitted to wear religious garments.
(2) Religious harassment/disparate treatment:
It is generally illegal for employers and/or coworkers to discriminate, harass, or in any way alter the terms and conditions of an employee’s employment (including termination) because of an employee’s religious beliefs. Employees also cannot be forced to participate in religious activities.
Note that it is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on religion or for filing a discrimination charge or participating in an investigation or case under Title VII of the Civil Rights Act of 1964.
Family and Medical Leave Act
Under federal law, most employers with 50 or more employees must provide eligible employees with 12 weeks of unpaid leave during a 12-month period for one or more of the following reasons:
- For the birth and care of the newborn child of the employee
- When an employee adopts a child
- To care for an immediate family member (spouse, child, or parent) with a serious health condition
- When an employee suffers from a serious health condition that renders them unable to work.
New Jersey has enacted a much more expansive Family Leave Act that applies to all employers, even those with just one employee.
Employers cannot terminate or retaliate against employees for taking Family and Medical Leave. Employees must be reinstated to their previous position or an equivalent position upon returning from Family and Medical Leave. There are circumstances in which an employee can take intermittent Family and Medical Leave while working during the normal workweek.
Have a question or legal matter that requires the advice of a NJ employment law attorney? Then contact Fredrick P. Niemann, Esq. at (732) 863-9900 or email him at fniemann@hnlawfirm.com to arrange a low-cost consultation in our Freehold (Monmouth County) office or at your place of business.
Fredrick P. Niemann Esq.