There is a broad misconception that there is a right to work in the State of New Jersey. However, workers enjoy no protections at work unless the Legislature or the Courts have specifically enumerated areas of legal protection. If you do not fall within one of those areas of protection, then, you are, in fact, not protected and are subject to what may be arbitrary, capricious, whimsical, and sometimes plain unfair decision-making of management.
In the State of New Jersey, there are two types of employees. One type of employee is subject to what is known as employment contracts whereby all the terms of one’s employment are specifically outlined in a contract. This is rare in the State of New Jersey as there are few contract employees.
The other type, which is the vast majority of workers in the State of New Jersey, is what we call at-will employees. When you are an at-will employee, you may be fired for any reason or no reason at all so long as one of those reasons is not specifically against the laws enacted by the Legislature or the Courts.
To that end, whenever someone calls our firm to inquire regarding their termination, that person’s fact pattern must fall within one of the laws that protect that person or an attorney may not be able to provide assistance on that employment issue.
The role of the plaintiff’s attorney is to analyze the client’s work issues by determining whether they are part of one of the protected categories created by law and whether they were terminated as a result of them being part of one of those protected categories.
Q: What are protected categories?
When we look at the New Jersey Law Against Discrimination, what is commonly referred to as NJLAD, there are several categories that the law creates in order to prevent employers from using these categories as a basis for termination. These categories include but are not limited to race, gender, ethnicity, religious persuasion, sexual orientation, age, disability, national origin, and ethnicity.
Our analysis begins by determining whether someone is part of a protected category and whether they were terminated, at least, in part because they are part of that protected category. We say “in part” because the law in New Jersey permits you to have a cause of action even if there are other legitimate reasons for termination. So long as one of the reasons for your termination is illegal, then you still have a cause of action. For example, if the employer has five reasons to terminate you in which four are legitimate and one is against the law, you will still have a cause of action because one of those reasons was unlawful.
Second, we examine if there is a basis to believe that you were retaliated against or harassed and/or terminated as a result of being a member of that protected category. The vast majority of people that call are the victims of unfair, unprofessional, unethical, and sometimes immoral behavior, but that does not necessarily mean the management’s behavior was unlawful. Unfair or unprofessional also has to be unlawful in order to sustain a cause of action in New Jersey.
The vast majority of cases fall within the four corners of two particular statutes in the state of New Jersey, one being NJLAD and the other is the Conscientious Employee Protection Act (CEPA), which is more commonly known as New Jersey’s whistleblower statute.