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Your Rights as an Employee in New Jersey

By: Attorney Thomas R. Smith

With unemployment rates nearing 10% nationally, many uncertainties face our labor force respecting job protection rights, and what rights an employee is entitled to following a termination.

Unless you are a member of a labor union, or covered by a collective bargaining agreement, or employment contract, you may, in New Jersey, generally hired and fired at the will of your employer. That is, you can be fired with, or without cause. For example, an employer can fire an employee for a specific reason or simply because the employer does not like the personality of the employee. 

However, discrimination in the workplace based on age, race, creed, color, nationality, disability or handicap is prohibited. An employee who is terminated because he or she is in one of the protected classes, may pursue a claim for wrongful termination through the New Jersey Division on Civil Rights, or by filing a lawsuit in State or Federal Court. In either case, money damages, including back pay may be awarded, as well as job reinstatement. If you believe you were a victim of discrimination, and lost your job, the time to act is now, as there are specific, short time limitations in which to pursue and protect your rights.

CEPA, the Conscientious Employee Protection Act, prohibits an employer from taking any retaliatory action, including discharge, against an employee who discloses or threatens to disclose illegal activity of an employer, or who cooperates with outside agencies investigating such activity or who refuses to participate in illegal activity.   An employee, who is discharged in violation of CEPA, may file a lawsuit against the employer seeking money damages.

An employee may have rights under a collective bargaining agreement if they belong to a labor union that sets forth the circumstances permitting a job termination, as well as rules and procedures for ending the employment relationship.   If an employer fires an employee in violation of such an agreement, the union will generally file a grievance pursuant to the procedure set forth by the agreement. Back pay, other money damages and job reinstatement may be obtained on the employee’s behalf.

Whenever an employee is terminated from employment, whether voluntarily, or involuntarily, the employer must pay the employee all wages due no later then the next regular pay day. If part of an employee’s regular pay is based on an incentive system, the employer must pay a reasonable approximation until the exact computation is due.

Employees who were covered under a group health insurance plan are offered the option to continue coverage, at the group rate for a period of time following their termination. Currently, due to the Federal Stimulus package, an employee can continue group coverage for up to 9 months at 35% of the monthly cost of such coverage.

Certain employers are required under Federal Law to provide 60 days advance notice of plant closing or mass layoff. Failure to do so subjects the employer to penalties payable to each employee who suffers an employment loss, as well as continued benefits. New Jersey law requires similar notifications and includes those affected by a transfer of operations.

New Jersey law does not require severance pay to employees who are involuntarily terminated from employment.   However, often times employers will offer severance pay either as a show of good will, gratitude for an employee’s hard work, or as incentive for the employee to leave voluntarily. In exchange, employees are often requested or required to execute an agreement releasing any claims arising out of the employment against the employer. The employee may obtain the assistance of a lawyer in reviewing such severance agreements. Certain requirements are necessary for enforcement. Generally, releases must be written in clear and simple language. They must give the employee the right to seek legal counsel. Certain claims, such as under the Older Persons Worker Protection Act must specifically be stated and knowingly and voluntarily waived by the employee.

Regardless of what is stated in such an agreement, an employee cannot waive certain rights or claims against the employer. For example, an injured worker’s rights for benefits under the New Jersey Workers’ Compensation Act cannot be waived or released. Thus, an employee who suffered personal injuries while working may have legitimate claims for benefits following the termination from employment.

Although your employment may not be secure, we hope that this article helps you understand what rights you have if you find yourself faced with termination of employment. Always contact a lawyer with expertise in labor and employment law to resolve any questions, or to ensure you are protected.

Thomas Smith is a lawyer, partner and head of the Labor and Employment Department of Pellettieri Rabstein & Altman.
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