Employment Law

Employment Law Attorneys: Discrimination, Whistleblowers, Contract

Located in Hackensack, New Jersey, Russo & Kieck is an employment law firm offering legal services to clients in Bergen County, Paramus, Saddle Brook, Midland Park, Englewood, Fort Lee, Rutherford, Passaic County, Paterson, Clifton, Wayne, Essex County, Newark, Bloomfield, Hudson County, Secaucus, Union City, and all other areas of Northern New Jersey.

Employment Law Attorney, Hackensack NJ

In New Jersey, employment is at will, which means that an employee can be terminated for any reason except that the employer cannot discriminate, breach an employment contract, violate public policy, or fire employees for reporting workplace violations.

Russo & Kieck Law Firm is conveniently located in Hackensack, New Jersey across from the Bergen County court house. Contact us to schedule a consultation 201-342-3100.


 

Discrimination

NJ Law Against Discrimination (NJLAD) NJSA10:5-3 provides:

The Legislature finds and declares that practices of discrimination against any of its inhabitants, because of race, creed, color, national origin, ancestry, age, sex, gender identity or expression, affectional or sexual orientation, marital status, familial status, liability for service in the Armed Forces of the United States, disability or nationality, are matters of concern to the government of the State, and that such discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State; provided, however, that nothing in this expression of policy prevents the making of legitimate distinctions between citizens and aliens when required by federal law or otherwise necessary to promote the national interest.

The Legislature further declares its opposition to such practices of discrimination when directed against any person by reason of the race, creed, color, national origin, ancestry, age, sex, gender identity or expression, affectional or sexual orientation, marital status, liability for service in the Armed Forces of the United States, disability or nationality of that person or that person’s spouse, partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers, or customers, in order that the economic prosperity and general welfare of the inhabitants of the State may be protected and ensured.

The Legislature further finds that because of discrimination, people suffer personal hardships, and the State suffers a grievous harm. The personal hardships include: economic loss; time loss; physical and emotional stress; and in some cases severe emotional trauma, illness, homelessness or other irreparable harm resulting from the strain of employment controversies; relocation, search and moving difficulties; anxiety caused by lack of information, uncertainty, and resultant planning difficulty; career, education, family and social disruption; and adjustment problems, which particularly impact on those protected by this act. Such harms have, under the common law, given rise to legal remedies, including compensatory and punitive damages. The Legislature intends that such damages be available to all persons protected by this act and that this act shall be liberally construed in combination with other protections available under the laws of this State.


 

Conscientious Employee Protection Act (CEPA) – Whisteblowers

NJSA 34::19-3 provides:

An employer shall not take any retaliatory action against an employee because the employee does any of the following:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care; or

(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity;

b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer, or another employer, with whom there is a business relationship, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, in the case of an employee who is a licensed or certified health care professional, provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into the quality of patient care; or

c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care;

(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity; or

(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.


 

Breach of Contract

All employment is at will unless there is a written contract. Most employers do not hire pursuant to written contracts. However, sometimes the type of work or custom in the industry is to enter into employment contracts. If there is an employment contract, both the employer and employee must abide by its terms.

Some contracts guaranty employment for a particular length of time or at a particular salary. If these terms are breached, the employee has a cause of action for breach of contract and can seek damages for the loss of income and benefits. Emotional distress damages cannot be awarded for breach of contract claims.

Under certain circumstances, an implied contract can be created by an employee manual or practice. Most employment manuals have bold faced language setting forth that employment is at will and that the manual does not create an employment contract. If this language is absent, an employment contract may be created by the manual.

Even if the employer has an employment manual with the proper at will employment language, the employer can create an implied contract of employment based on the employer’s actions. For instance, if the employer follows a regular practice of discipline such as employee write ups and plans of correction, an employee terminated without the employer following these procedures may have a cause of action for breach of implied contract.


 

Violation of Public Policy

Even though statutes have been adopted for discrimination and whistleblowing, there remains a cause action for violation of public policy in certain limited circumstances. Violation of public policy is an exception to at-will employment and predates the statutory causes of action. In 1980, the New Jersey Supreme Court decided Pierce v. Ortho Pharm. Corp., 84 NJ 558 which is the leading violation of public policy case and remains good law today.

The Supreme Court ruled:

“[A]n employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy. The sources of public policy include legislation; administrative rules, regulations or decisions; and judicial decisions. In certain instances, a professional code of ethics may contain an expression of public policy. However, not all such sources express a clear mandate of public policy. For example, a code of ethics designed to serve only the interests of a profession or an administrative regulation concerned with technical matters probably would not be sufficient. Absent legislation, the judiciary must define the cause of action in case-by-case determinations. An employer’s right to discharge an employee at will carries a correlative duty not to discharge an employee who declines to perform an act that would require a violation of a clear mandate of public policy. However, unless an employee at will identifies a specific expression of public policy, he may be discharged with or without cause.”