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Employment Termination

​Employees in New Jersey have a broad array of protections with regard to terminations from employment.  However, if a termination is not discriminatory, retaliatory, or in violation of a public policy or contract, there may be no claim for an unfair termination. Thus, for example, a worker may be employed for a long time, have good performance, and be fired for an incorrect reason, but if one of the above listed issues is not present, the potential to file a claim may be very limited.

Acting  to Improve Wages and Working Conditions

If you are acting or discussing  with other workers  to improve wages or working conditions, you may be protected against termination by the National Labor Relations Act (NLRA).  The NLRA may protect workers who are engaged in concerted activity with others to improve wages and working conditions.  Thus, if  your employer terminates you because you were discussing improvements to wages or working conditions with other workers, this termination may be an unfair labor practice and you can file a unfair labor practice with the National Labor Relations Board (NLRB).  This is true whether or not your workplace has a union.

Discriminatory Termination

In order for a termination to be discriminatory, the employer must have singled out or treated the employee differently because he or she was a member of a “protected” class of people.  The New Jersey Law Against Discrimination prohibits discrimination on the basis of race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy and sexual harassment), marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information liability for military service, or mental or physical disability, including AIDS and HIV related illnesses.  Federal law prohibits discrimination on the basis of race, color, religion, sex, national origin, age, or disability. Disability, however, is broadly defined, and may include serious physical or mental health conditions such as diabetes, back problems, and multiple sclerosis. Only terminations based on an employee’s membership in one of these classes violate the law. So, for example, if you were terminated because your employer just didn’t like you, that is not discriminatory unless you can show that you were treated differently because of your membership in one of the above-listed protected categories. 

Public Policy

Another type of wrongful termination is when the termination violates a clear mandate of public policy. To bring a case for this type of wrongful discharge, you must be able to identify the specific public policy that your former employer violated. A violation of personal or moral beliefs, by itself, or a violation of purely individual rights, is not a violation of public policy. You must also prove that your termination was caused in retaliation for taking action or attempting to take action in opposition to the employer’s violation of a clear mandate of public policy. It is difficult to succeed on this kind of claim for wrongful termination.

Some types of terminations are recognized as violations of a clear mandate of public policy. Examples of violations of a clear mandate of public policy include:

  • retaliation prohibited by state and federal statutes, such as retaliation against an employee for:
    • reporting violations to the Occupational Safety and Health Administration
    • making a claim of workers’ compensation benefits
    • pursuing a discrimination claim (unless you can make a claim under New Jersey’s Law Against Discrimination)
    • reporting an employer’s illegal activity
      • In New Jersey, the Conscientious Employee Protection Act (CEPA) protects “whistleblower” employees from retaliation by their employer. A whistleblower is an employee who discloses, objects to, or refuses to participate in actions that the employee reasonably believes are illegal or in violation of public policy. The whistleblowing must have a public purpose rather than be about a private disagreement with the employer.
  • retaliation for refusal to engage in illegal conduct
  • retaliation for “whistleblowing” - when an employee is retaliated against for reporting an employer’s seemingly-illegal activities to the employer or to outside authorities.

FAQs on Wrongful Termination:

The questions below address some common issues related to wrongful termination. 

My employer never gave me a contract for my work, but I do have an employee handbook. Does that give me any enforceable rights?

In certain cases, in the absence of an actual contract between you and your employer, an employee handbook may give you legally-enforceable rights.  A court might construe an employee handbook as a contract if it was widely distributed to employees, if the promises made in the handbook were plain and clear, and if the handbook reflects the reasonable expectations of employees.  The ultimate determination of whether or not a handbook constitutes a contract that gives you legally-enforceable rights, though, is very fact-specific and depends on the circumstances of your individual situation. 

My employee handbook says that I was entitled to warnings before termination, but it also has a disclaimer that says the handbook is not a contract and that I can be fired without notice. What are my rights?

Sometimes, an employee handbook will entitle employees to “progressive discipline” before termination.  For example, an employer may promise to give you verbal or written warnings before firing you.  However, even if your employee handbook promises that certain steps will be taken before termination, an employer will not be held to that promise if there is a clear disclaimer that says the handbook is not an enforceable contract.  One example of such a disclaimer is, “Nothing in this handbook implies any contractual rights.  All employees are employed at-will and may be terminated at any time, with or without good cause.”  

A court will generally not find an employee handbook to be a binding contract if the handbook clearly and prominently states that the handbook is not a contract.  So despite all the promises your employer may make in the employee handbook, you will not generally be able to hold the employer to those promises if there is a disclaimer that states the handbook is not a contract or that you are an at-will employee.  Again, the determination of whether or not such a disclaimer is enforceable depends on the specific language of the handbook. 

Do I have any rights if there was an oral employment policy but no handbook?

If an authorized supervisor made an oral statement that accurately represents a definitive, company-wide policy promising certain terms and conditions of employment, you may have rights based on that policy. However, proving that there is such a policy will be much more difficult, since it is not in writing.

Is employer required to give me two-weeks’ notice before terminating me? Do I have to give my employer two-weeks’ notice?

New Jersey law does not require a notice of separation from either the employee or employer.  However, if an employer has a policy on notices of separation and that policy is recognized as an enforceable contract, a notice of separation may be required from the employer and/or employee in accordance with the policy.

My employer fired me without giving me any reason for the termination.  Aren’t I entitled to an explanation?

The law does not require employers to give employees explanations for terminations.  

I was fired because my employer does not like me. Is this legal?

Your employer can terminate you for any reason that is not unlawful. You may have a case against your employer only if you can prove that the employer’s actions were discriminatory or retaliatory or violated a public policy.

I was fired after I had to miss work while serving on a jury. Is this a wrongful termination?

Employers are not allowed to penalize or threaten employees regarding their employment based on their jury service.

Can a constructive discharge be a wrongful termination?

A constructive discharge is when an employer knowingly allows employment conditions to become so intolerable that any reasonable person would resign. A constructive discharge may count as a wrongful termination. To prove constructive discharge, you must show that you made every effort to remain employed, including making complaints according to the employer’s available internal procedures, rather than simply quitting.

I was terminated from my job, and I’m worried that my former employer will give me a bad reference.  Can I prevent my former employer from saying negative things about me?

A former employer is allowed to provide information that is truthful or to express an opinion.

If you have proof that the former employer is lying about you to employees or prospective employers and damaging your reputation, you may have a case against your former employer for defamation. 

9/7/2012