There are generally two classifications of employment: (1) employment at will (employment without the benefit of a contract) and (2) employment by contract (which may or not include the existence of a Collective Bargaining Agreement). Turning first to employment at will, an employer has the right to terminate any at will employee at any time so long as the basis for the termination is not illegal or in violation of law. For at will employees, the initial determination to be made is whether your former employer terminated your employment or discharged you from employment for a justifiable reason. Often, a discharged employee will think that discharge or termination is never reasonable or justifiable. However, in order to pursue a legal claim against an employer, it is important to determine the basis for the termination as it relates to the conduct of the employee (e.g., an employee’s work history, an employee’s attendance records, an employee’s productivity, an employee’s health, etc.). A second aspect of the potential claim to be investigated is the conduct of the employer (e.g., employer’s decision making process concerning its reduction in workforce efforts, employer’s reasonable basis for terminating employment, employer’s compliance with employee handbook, etc.). Conduct an analysis of whether employment claims are supported by any statutory or common law causes of action. Lastly, to determine a legal strategy aimed at yielding results or an outcome that is desired by and most advantageous to the prospective client.

With respect to employment by contract, it is necessary to review the contract of employment in its entirety to determine whether the employer violated any of the terms and provisions of the employment contract, and, if so, whether the violation is actionable or constitutes sufficient grounds for commencing negotiations of a severance package or filing a legal action in a court of competent jurisdiction. The analysis process involving this type of potential claim is fact sensitive and varies from individual to individual. There are no fast and hard rules set forth in the employment law sector that will automatically determine whether you will have a viable and successful case against your former employer. Each fact pattern must be individually evaluated and reevaluated as additional information and facts are disclosed. This is an ongoing process which helps us to shape and create options which are most suitable for you.

New Jersey law affords protection to employees within the work place so as to prevent different forms of discrimination. Briefly, the New Jersey Law Against Discrimination (“LAD”) prohibits discrimination based on  race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, marital status, domestic partnership status, affectional or sexual orientation, atypical hereditary cellular or blood trait, genetic information, liability for military service, and mental or physical disability, perceived disability, and AIDS and HIV status.  The LAD not only prohibits discrimination in the workplace, it has been expanded to prohibit discrimination in other specified areas such as employment, housing, credit, public accommodations, real estate transactions, and insurance.

The New Jersey Conscientious Employee Protection Act (“CEPA”) (more commonly known as the “Whistle Blower Act” ) protects employees from retaliation by their employers for objecting to, or refusing to participate in, employer conduct which the employee reasonably believes to be criminal or in violation of a clear mandate of public policy.

In certain instances, employees may be afforded job protection under the New Jersey Family and Medical Leave Act (“FMLA”). FMLA is applicable to all businesses with 50 or more employees and to individuals who have been employed by such businesses for a period of 12 months (meaning during the preceding 12 month period, the employee has worked for their employer a period of 1250 hours). If an employee is eligible for FMLA, his or her employer will have to provide up to 12 weeks of unpaid leave per 12 month cycle where the employee seeks leave for: (a) the birth of a child; (b) the placement of a child with the employee for adoption or foster care; or (c) the employee’s care for a child, spouse, or parent with a serious health condition, or because of the employee’s own serious health condition. Once an employee is granted FMLA leave, his or her employer shall continue to provide pre-existing health benefits although the employer is entitled to recover premiums paid for the leave period if the employee does not return to work. In addition, if the employee returns to work at the conclusion of the designated FMLA leave period, he or she is entitled to return to the same or an equivalent job.

Another form of actionable or potentially discriminatory conduct within the workplace involves allegations of sexual harassment. Sexual harassment within the workplace may fall into one or more of the following categories: (a) quid pro quo sexual harassment; (b) hostile work environment sexual harassment; and (c) third party sexual harassment. For a more detailed explanation of these three forms of sexual harassment please go to the FAQ link for this site.