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EMPLOYMENT AT-WILL

Added on 12/15/2016 by kalsonlaw

Most employees in New Jersey do not understand the concept of employment “at-will”. In the absence of a contract or statute, an individual’s employment is at-will in New Jersey and the employee is subject to termination with or without cause. An employee can be terminated for any reason or no reason or even a false reason. Your employer does not have to give you a reason for terminating you. What many people who contact my office do not understand is that even if a false reason is given for the termination, it does not matter as the employer does not need a reason to terminate you. However, if the employer is giving a false statement that is defamatory then that may be actionable under the defamation standards.

Of course there are exceptions to the employment at-will doctrine. In the Woolley vs. Hoffmann-La Roche case, the court found that the employee handbook was a contract of employment. As a result, in order to avoid the Woolley concept, employers’ have put the disclaimer or at-will statement at the front of the handbook. If your employer has a handbook, you will most likely find a disclaimer or at-will statement at the beginning of the handbook. The statement will say that the employer is free to terminate you at any time for any reason. It usually also states that nothing set forth in the manual is intended to create a contract of employment. You are also free to leave your employment at any time. The at-will concept is the state of the law in New Jersey since 1958.

The major exceptions to the employment at-will doctrine are the discrimination laws and whistle-blowing laws. In the seminal case of Pierce vs. Ortho Pharmaceutical Corp., the court held that an employee cannot be terminated for reasons which would violate a clear public policy of the State. The Pierce concept has been codified in the Conscientious Employment Protection act (CEPA).

The New Jersey Law Against Discrimination (LAD) prohibits discrimination in the workplace. If an employee can prove that their discharge was due to being in a protected class or taking some type of protected action, then the discharge will be found unlawful. Similarly, if an employee is retaliated against for filing a complaint of discrimination or other protected activity, then that discharge may be unlawful.

The burden of proof is generally on the employee to show that they were in a protected class and suffered some type of adverse employment action. The burden of proof then shifts to the employer to establish a legitimate nondiscriminatory reason for the termination. Finally, the burden returns to the employee to show that the reason offered by the employer is a pretext for discrimination or retaliation. Note that this is a different standard then that for unemployment. Unemployment uses a misconduct standard. An employee may be penalized for unemployment benefits if they are found to have committed misconduct, be it simple, severe or gross. However, if you are an at-will employee, the employer need not establish any misconduct prior to terminating you.

Many individuals call my office and say they were wrongfully terminated or fired. In order to analyze the situation, under law, we must determine if they were an employee at-will or fit within the exceptions described above. Detailed analysis is required. The first thing we ask is if they had a handbook or manual or were a member of a union. Unions generally have a just cause dismissal contained in a contract of employment. Union contracts generally provide for arbitration and progressive discipline, as well. If you have a manual, it must be reviewed to determine if it has a clear and prominent disclaimer. Sometimes a handbook can be an implied contract of employment if the disclaimer is buried in the manual. In the Nicosia case, the court addressed factors that the employer can utilize to ensure that the at-will disclaimer is clear and prominent. Those suggestions included setting off the disclaimer by using capital letters, bold type, and a separate page. In addition, the disclaimer must be clear, not set forth in legalese and state that the employment relationship is at-will and terminable with or without cause or prior notice.

If you are terminated, you should consult with a labor and employment attorney to determine if your termination meets one of the exceptions to the at-will rule. The exceptions to the rule are numerous and growing. At the current time, employment litigation is approximately one out of every three civil cases. Wrongful termination also encompasses retaliation for taking time off under the Family Medical Leave Act (FMLA), retaliation for Whistle-blowing or retaliation for filing a Workers’ Compensation claim. Though you may be an at-will employee, your employer cannot fire you for protected activity.