When can I be Fired?

Employment Lawyer Fred Shahrooz Scampato with the emblem created by his father depicting equality, justice and liberty. Credits: Jackie Lieberman

One of the most common misconceptions about employment law in New Jersey is that workers think that their employers need a reason to terminate their employment. They also wrongfully assume that they can bring a lawsuit for wrongful termination when they do not receive an adequate reason for being let go. The purpose of this article is to clear up these mistaken beliefs.

New Jersey is an employment “at-will” state. That means that an employer can terminate an employee whenever they wish, for a good reason, a bad reason or for no reason at all. The employee is generally not entitled to severance pay, prior notice or even a reason as to why they are being terminated. This is the general rule. The following circumstances are considered exceptions to this rule:

1.      Union Members.  If you are a member of a union or have the protection of a union contract, then you generally have extensive employment protections.  The union contract will outline these rights, which may include the union filing a grievance procedure on the worker’s behalf to get them reinstated if they are terminated by the employer. Even some non-union members, who are employed pursuant to a union contract, can get the benefits of these extensive job protections.  An experienced employment or labor attorney can review the union contract to determine the extent of these protections.

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2.      State, County and Municipal Workers. A large percentage of employees who work for government have civil service rights under the New Jersey Civil Service Commission.  These employees can usually only be terminated for specific reasons and have the right to appeal their termination when they think that the termination was not justified. A list of Civil Service jurisdictions can be found by following this link: http://www.state.nj.us/csc/about/divisions/slo/jurisdictions.html

3.      Employee Handbooks. Employee handbooks are manuals drafted by employers and contain the rights and obligations that exist in the employer’s relationship with the employee.  These handbooks often outline the rules and procedures in which the employers will follow in disciplining and terminating workers. Under certain circumstances, courts have found that these handbooks can be viewed as implied contracts of employment that may limit an employer’s ability to terminate a worker. However, in New Jersey, if the handbook contains an effective disclaimer (essentially stating that the employee remains an “at will” employee and that no contract is created by the handbook), then the employee cannot use the employee handbook as an avenue to raise a claim of wrongful termination. A consultation with an experienced employment attorney is recommended to make this determination.

4.      Discrimination Laws. State and Federal laws prohibit employers from firing employees because of their membership in a protected class.  In other words, it is unlawful to subject people to differential treatment based on race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, 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, and mental or physical disability, perceived disability, and AIDS and HIV status.  It is highly recommended that a person who thinks that they are the victim of discrimination or harassment to meet with an experienced employment law attorney before they are terminated.

5.      Whistleblowers. The New Jersey Conscientious Employee Protection Act is a state statute that protects employees who have engaged in whistle-blowing activities, such as a complaint pertaining to a reasonable belief that a crime, fraud or violation of the law has been committed, from being retaliated against by an employer.  It is, you guessed it, highly recommended that a potential whistleblowing employee seek the guidance of an experienced employment law attorney as soon as possible.

6.      Worker’s Compensation. New Jersey’s worker’s compensation statute prohibits an employer from firing an employee because he or she has filed a worker’s compensation claim. An employee, who has been terminated because he or she filed a worker’s compensation claim, can file a claim through the New Jersey Department of Labor or in a private lawsuit.

7.      Wage and Hour Complaint. Employees who have filed a wage and hour complaint pursuant to the Federal Fair Labor Standards Act or the New Jersey wage statutes are protected against retaliation. If an employer fires, an employee, for raising a wage claim (e.g. failure to pay minimum wage, failure to pay overtime, mis-classification as exempt salaried employee, etc.), then the employee can bring suit in administrative, State or Federal courts, depending on the circumstances.

8.      NLRA. The Federal National Labor Relations Act protects workers who are engaged in “protected concerted activity”, or when two or more employees act together to improve the terms and conditions of employment. Employees have the right to advocate for improvement to their work environment even when they are not members of a union.

9.      OSHA. The Federal Occupational and Health Safety Act requires employers to provide a safe and healthy workplace for their employees. The act prohibits employers from firing employees in retaliation for engaging in an OSHA whistleblowing activity. An employee who has been terminated can file a claim with the Occupational and Health Safety Administration.

10.  Jury Duty. In New Jersey employers are prohibited from firing employees, after receiving proper notice, for going to jury duty. Employers who fire for serving on a jury may be subject to criminal sanctions and special damages in a wrongful termination lawsuit.

11.  Military Leave. State and Federal law prohibit employers from discriminating or retaliating against an employee who leave to serve in the military (including education and training). Military personnel are also entitled to reinstatement of their job upon the completion of their military duty.

12.  Family Leave Laws. Under certain circumstances, employees are protected for up to 12 weeks of unpaid leave for their own or a close family member’s serious health condition. An employee, who is fired in retaliation for going out on a protected medical leave, can bring an action through the US Department of Labor, State or Federal court, depending on the circumstances.

If you have any additional questions concerning this subject, you are encouraged to telephone the Law Office of Fred Shahrooz-Scampato for a free fifteen minute telephone consultation. During that time, Mr. Shahrooz-Scampato will carefully listen to your facts, explain the pertinent law and potentially provide you with option for going forward with a claim for wrongful termination.

Whether you are an employer looking for assistance with employment law issues, or an employee who feels unfairly treated, Fred Shahrooz Scampato can provide you with the benefit of his over twenty years experience in employment law. His goal is to prevent workplace problems from becoming costly litigation. He can be reached at Scampato@aol.com, Scampato@njlaborlaw.com or 908-301-9095. Visit his website at www.njlaborlaw.com.
 

The opinions expressed herein are the writer's alone, and do not reflect the opinions of TAPinto.net or anyone who works for TAPinto.net. TAPinto.net is not responsible for the accuracy of any of the information supplied by the writer.

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