I. Introduction
If you are an employee in the State of New Jersey, then you have certain workplace rights under our laws. The intent of this article is to describe the essentials of these rights in an understandable manner. While I expect that this article will be helpful to those struggling to deal with discrimination, harassment or retaliation in the workplace, it is not a replacement for legal representation. I urge those who feel that their rights have been violated to promptly seek a free consultation with a competent attorney to go over alleged violations in detail.
II. At-Will Employment
Unless one has a fixed employment contract or is affiliated with a union, a person is considered to be an “at-will employee.” An at-will employee is a person who can be hired and fired at will. This means that they can be fired at any time and for any reason or for no reason at all. It can be for a good reason, such as for failure to show up at work on time or for a bad reason, such as your boss does not like you. There are two main exceptions to this rule: (1) that they can not be fired for an illegal reason or (2) if the company expressly limits the manner in which it will fire its employees.
People do not believe this concept. Most feel that they have broader rights than those which I stated. They believe that they have a constitutional right to be treated civilly and fairly at the workplace. The fact of the matter is that neither the Federal nor State government requires employers to treat their employees fairly. That does not change the fact that one was treated unfairly. It merely means that it is not unlawful.
III. Protection For Employees Under New Jersey Statutes
Most wrongful discharge law litigation focuses on the two above-mentioned exceptions to this general rule. The first exception is that the employer’s actions are illegal either because the employer discriminated against or retaliated against the employee. Discrimination and retaliation in the workplace is generally protected against by these State statutes: The New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 et seq., the New Jersey Conscientious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1 et. seq., the New Jersey Family Leave Act (“FLA”), N.J.S.A. 34:11B-9 and the Workers’ Compensation Law, N.J.S.A. 34:15-39.1.
A) New Jersey Law Against Discrimination
The LAD protects employees who are harassed or discriminated against because of their being a member of a “protected class”. The protected classes covered under the LAD are: race, creed, color, national origin, ancestry, age, marital status, sex, atypical hereditary, cellular or blood trait, service in the Armed Forces, handicap (including AIDS or being HIV Positive) and sexual orientation.
If one seeks to use the LAD in litigation, they have to make sure that they can prove the elements of the cause of action. In other words, you can only sue successfully if you can insert provable facts into the elements of the claim.
To make it digestible, I have presented the elements to various types of LAD causes of actions in the form of questions. If one can answer yes to each of these questions, then they may have a claim under the LAD.
1. Protection From Discrimination
Discrimination usually is expressed by way of disparaging treatment. In other words, an individual is treated differently (not hired or fired) from everyone else because of the fact that they are a member of a protected class. This can be proved through direct or indirect evidence. Direct evidence of discrimination is easy but not very common. Where an individual has direct evidence of discrimination, it is unnecessary for him or her to make a separate showing of intent.
If you can answer affirmatively to the following questions, you may have a discrimination case actionable under the LAD case that’s provable with direct evidence:
Were you a member of a “protected class” as it is defined under the LAD?
Did anyone tell you (or someone who would testify for you as a witness) that the reason you were not hired or were fired was because of the fact that you were a member of that “protected class.” OR Did you (or any of your testifying witnesses) read documents or company policies which were obviously discriminatory in nature?
Proving discrimination with indirect evidence is a bit more difficult. However, if you were not hired for a position, you may be able to prove that you were discriminated against if you can answer the following questions in the affirmative:
Were you a member of a “protected class” as it is defined under the LAD when you applied for the position?
When you applied for the position were you qualified to perform the position in which the potential employer was seeking applications?
Did the potential employer, despite the fact that you had adequate qualifications, reject you?
Did the position remain open after your rejection?
If you were fired from a position, you may have been discriminated against if you can answer yes to all of the following questions:
Were you a member of a “protected class” as it is defined under the LAD?
Were you performing your job at a level that met your employer’s legitimate expectations?
Were you nevertheless fired?
Did your employer subsequently seek or hire someone else with similar qualifications to perform the same work as you were performing prior to being fired?
Under the LAD, after you have established your case by answering yes to the above questions, the burden shifts to your employer. Your employer then has the burden of showing that you were fired for a legitimate non-discriminatory reason. If your employer can provide a legitimate reason, then the burden shifts back to you to prove that either (1) the company is using the legitimate reason as a smoke screen to cover up the discrimination or (2) while there is a possible legitimate reason for your termination, the discrimination is the more likely reason for the wrongful discharge.
a. Protection From Handicap Or Disability Discrimination
Special standards apply to handicapped or disability discrimination under the LAD where you can only prove the discrimination with indirect proof. The statute prohibits any employer from discriminating against a person because he or she is or has been a handicapped individual unless the nature and extent of the handicap reasonably prevents the person from performing his or her job. “Handicapped” individuals include (but not limited to) the following types of persons: those suffering from epilepsy, alcoholism, AIDS, tested positive for HIV, bad backs, heart conditions, obesity, addiction to illegal drugs and those suffering from emotional ailments.
If one’s employer determines that a handicapped individual is unable to perform the duties of that person’s job, the employer must attempt to make a “reasonable accommodation” to the handicapped employee or handicapped individual seeking to be hired. This must be done before the employer fires, demotes or fails to hire the individual. A “reasonable accommodation” includes light duty, job restructuring, or doing something to make it easier for the handicapped person to perform his or her job. However, if the employer can prove that the necessary accommodation would impose an undue burden on the operation of its business, the employer does not have to make the accommodation.
You may have a “failure to hire” handicap or disability discrimination lawsuit under the LAD if you can answer yes to these questions: Were you a “handicapped” individual as it is defined under the LAD when you applied for a job?
- When you applied for the position, were you qualified to perform the job, with or without reasonable accommodation, in which the potential employer was seeking applications?
- Did the potential employer, despite the fact that you had adequate qualifications, reject you?
- If you needed “reasonable accommodations, they were not the kind or type that would impose an undue operations or financial burden on potential employer?
- Did the position remain open after your rejection?
You may have a wrongful discharge due to handicap discrimination case under the LAD if you can answer affirmatively to the following questions: Were you a “handicapped” individual as defined under the LAD?
- Were you performing your job at a level that met your employer’s legitimate expectations (with or without “reasonable accommodations)?
- You would have been able to perform your job to meet your employer’s legitimate expectations if you had been offered “reasonable accommodations” but were denied them?
- Despite answering yes to the above questions, you were nevertheless fired?
- Did your employer subsequently seek or hire someone else with similar qualifications to perform the same work as you were performing prior to being fired?
2. Protection From Harassment
The LAD also protects “protected class” individuals from harassment. There are two types of harassment that are covered, “quid pro quo” and “hostile environment” harassment. Quid pro quo sexual harassment occurs when a supervisor tries to make an employee submit to sexual demands as a condition of his or her employment. Hostile work environment harassment exists when a supervisor or co-employees harass an employee because of his or her being a member of a “protected class” to the point in which the working environment becomes hostile.
You may have a quid pro quo sexual harassment cause of action if you can answer yes to these questions: Did a co-employee or supervisor subject you to unwelcome sexual conduct?
- When you declined to submit to the sexual advances, the co-employee or supervisor used this decision as the basis of adversely affecting your conditions of employment, i.e., you lost your job, were demoted or suffered a loss in compensation, terms, conditions or privileges of employment?
You may have a valid claim for hostile work environment harassment if you can answer affirmatively to these questions:
The conduct that you are complaining about would not have occurred but for the fact that you are a member of a “protected class?”
- The conduct was severe and pervasive?
- Not only a hypersensitive member of your “protected class” would think that what happened to you was severe and pervasive enough to be a hostile work environment, but a reasonable member of your “protected class” would find it to be a hostile or abusive environment as well?
- Was the conduct so bad that your conditions of employment were altered and the working environment was considered hostile or abusive?
Under the LAD, if the harassment (either quid pro quo or hostile work environment harassment) is committed by a co-employee, then your employer will be liable where it either knew or should have known of the harassment and then failed to take remedial or corrective action and simply allowed the harassment to continue. If a supervisor commits the harassment, then the employer is liable on what’s called a strict liability basis. Strict liability basis means that you do not have to prove that your employer knew or had reason to know of the harassment.
The LAD provides a number of remedies for victims of discrimination or harassment. These potentially include: reinstatement, back pay, front pay, attorneys’ fees, recovery of money for emotional distress, and punitive damages.
B. New Jersey Conscientious Employee Protection Act
CEPA provides protection from retaliatory action for employees who “blow the whistle” on their employers. The statute is very specific as to who will be shielded from retaliation. It protects those employees who disclose or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that an employee reasonably believes is in violation of a law, rule or regulation, a crime or a violation of public policy concerning the public health, safety, welfare or the environment. This usually arises where an employee either refuses to participate in illegal activity or speaks out against the illegal activity of others at their place of employment.
If an employee reasonably believes that illegal acts are being committed at the place of his or her employment, unless it’s an emergency situation or one’s supervisor already knows about the illegal activity, the employee must ordinarily first give the employer the opportunity to correct the problem before going to an outside governmental agency. The employee reports the alleged illegal activity in writing and gives it to his or her supervisor. The employee must also give the supervisor a reasonable opportunity to correct the problem. If the employer retaliates against the employee for bringing this complaint, by taking any kind of adverse employment action against the whistleblower (e.g. firing, suspending, and demoting), then the employee can bring a CEPA action against the employer.
You may have a valid CEPA cause of action if you can respond affirmatively to these questions:
- Have you either observed others, at your place of employment, committing a violation of the law, fraudulent or criminal, or against a clear mandate of public policy, or have been asked to personally participate in such an activity?
- Do you reasonably believe that what has occurred is a violation of the law?
- Assuming it was not an emergency situation and your supervisor does not already know of the illegal activity, did you provide a written complaint about the activity to your supervisor?
Did your employer take an adverse employment action against you (e.g. fire, demote or suspend you) as a direct result of bringing the complaint?
C. New Jersey Family Leave Act
New Jersey also protects employees from retaliation by employers for going on a leave of absence due to a birth of a child or a family medical emergency. The FLA covers employers with 50 or more employees. It protects employees who have been employed for at least the past 12 months and who have worked each working day for 20 or more workweeks during that year.
If you are an eligible employee under the FLA, you are entitled to take a family leave for up to 12 weeks within any 24 month period for the birth of a child, the adoption of a child, or to deal with a serious health condition of a family member. A “family member” is defined as a child, parent or spouse of the employee. “Serious health condition” means any illness, injury, impairment or condition which requires hospital or home care by a health care provider.
Unless it is an emergency, an employee must ordinarily give his or her employer notice of intent to take a family leave of absence. A thirty-day notice is required for the birth or adoption of a child. A shorter, fifteen-day notice is necessary for the care of a seriously ill family member.
The employer is not required to pay the employee during the duration of a family leave of absence. However, the employer must continue to provide other benefits such as medical leave, sick leave, and any other company benefits (in certain cases, the employer is not required to provide health coverage). The employee might also be required to provide the employer with certifications issued by health care providers in connection with the leave.
Upon return from the leave, an employee is entitled to be reinstated to the position which he or she held before taking the leave. If that position is filled, the employee must be restored to an equivalent position. The only exception to this would be if the employee experiences a layoff of employees during the employee’s leave. But that layoff would have to be bona fide and cannot simply be an act of retaliation.
If the employer retaliates against the employee for taking the leave, the employee can sue under the provisions of the FLA statute. The potential remedies available for the employee are: back pay, front pay, compensatory damages, punitive damages, attorneys’ fees, and costs of suit.
You may be able to successfully pursue a FLA claim if you can answer yes to each of these questions:
- Did you work for a company or public agency that employed 50 or more people?
- Did you work at that company each day for at least 20 or more weeks during the past 12 months?
- Did you request a leave from employment for the birth or adoption of a child or to care for a seriously ill family member?
- Assuming it was not an emergency situation, did you provide your employer with the notice required under the FLA?
- Did you cooperate with your employer’s requests for a certification by a health care provider in relation to the reason for your leave?
- Did your employer take an adverse employment action against you (e.g. fire, demote or suspend you) in retaliation for exercising your rights under the FLA?
D. New Jersey Workers’ Compensation Act
The New Jersey Workers’ Compensation Act prohibits an employer from firing, suspending, demoting or otherwise discriminating against any employee who has claimed or attempted to claim workmen’s compensation benefits form the employer. Under the statute, the employer may be fined and the employee who was discriminated against shall be restored to his or her employment and shall be compensated by his or her employer for any loss of wages arising out of the discrimination. Our courts in New Jersey have also recognized a Superior Court cause of action, based on public policy grounds, for compensatory and punitive damages against the employer in addition to the administrative remedies available under the Workers’ Compensation Act.
The injured employee is not required to show that he or she physically filed a workers’ compensation claim petition. Rather, to state a case for a retaliatory discharge, the employee must only show: (1) that he or she made or attempted to make a claim for workers’ compensation; and (2) that he or she was discharged in retaliation for making that claim. Notifying his or her employer of the injury and inquiring as to the procedure to be followed to have the medical bills paid is sufficient to constitute an attempt to bring a claim.
You may be able to bring a claim for workers’ compensation retaliation if you can answer yes to these questions:
- Did you sustain an injury that arises out of and in the course of employment?
- Did you inform your employer of your injury and inquire how the medical bills would be paid?
- Did your employer take an adverse employment action against you (e.g. fire, demote or suspend you) in retaliation for making or attempting to make a claim under the Workers’ Compensation Act?
IV. Employee Handbooks
New Jersey courts have held that under certain circumstances an implied promise, in a company personnel manual, that an employee will only be fired, suspended or demoted in specific ways, may be enforceable against the employer, even if the employee is considered to be an at-will employee. If the employer attempts to fire, suspend or demote an employee in a manner which violates it’s own employee handbook, the employee can bring a lawsuit for compensatory and punitive damages.
The reasoning behind this cause of action is that unless the employee handbook has a clear and prominent disclaimer, the employee has a reasonable expectation that the employer intended to be bound by its own policies. The employer and employee are viewed as entering into an implied contract that each would abide by the provisions of the handbook. Thus, technically, it is not an exception to the concept of at-will employment; rather it is the application of common law contract laws in an at-will employment environment.
In order for a court to find an implied contract, the handbook must have been distributed to all or most of the company’s employees and was recognized to still be in effect. Additionally, the policies in the handbook pertaining to discipline and discharge have to be comprehensive, explicit and clear. The provisions will not be enforced against the employer if no one could reasonably have thought it was intended to create legally binding obligations. Finally, the handbook must not have a clear and prominent disclaimer indicating that the employer did not intend to be bound by the handbook. To be effective, the disclaimer must be strong, straightforward and absolutely clear.
If you can answer affirmatively to the following questions, you may have an actionable implied contract case against your employer:
- Did your employer have an employee handbook that had been in effect and had been distributed generally among the employees at the time that your employer took an adverse employment action (e.g. fired, suspended or demoted) against you?
- Did your employer violate one or more of the handbook’s discipline or discharge policy provisions in taking the adverse employment action against you?
- Were these policy provisions comprehensive, explicit and clear so as to give you a reasonable expectation as to how and why you were to be disciplined or discharged?
- The handbook did not have a clear and prominent disclaimer stating that the employer did not intend to be bound by the policy provisions provided in the handbook?
V. Conclusion
The laws provided in this article are merely the starting point of any potential action taken against an employer. I urge all that find themselves in a position where they are struggling to assert their workplace rights to seek out an employment lawyer for a free consultation.