Employers in New Jersey, Pennsylvania, and throughout the U.S. have significant leeway in how they conduct layoffs. However, some employer actions can make layoffs illegal. For example, employers cannot decide who to include in a layoff based on their protected characteristics, including race, color, sex, national origin, pregnancy, disability, religion, or age if over 40. Employers are prohibited from laying off an employee in violation of his or her employment contract. Finally, large employers are required to provide advanced notice to employees of impending layoffs that are planned. If you have been laid off from your job and believe that your employer acted illegally, the attorneys at Swartz Swidler can provide you with guidance about your rights and options.
Unlawful discrimination as a basis for choosing who to include in a layoff
A majority of people are employed at will in the U.S. At-will employment means that workers can quit at any time, and their employers can fire them at any time for any reason. While at-will employment gives employers the right to fire workers for nearly any reason, there are some exceptions. Employers may not terminate someone from his or her job based on his or her protected characteristics. Under federal law, these include a person’s race, national origin, gender, color, national origin, genetic information, pregnancy, disability, age if over 40, or religion. When employers discriminate against workers based on their protected characteristics in layoffs, they can be liable to pay damages in lawsuits.
For example, if a layoff was pretextual and was used by an employer to get rid of most of the black employees at a company, the employer’s actions are illegal. Employers may not make job decisions based on the protected statuses of their employees.
Layoffs in violation of employment contracts
While most workers work at will, some work under written employment contracts. Employment contracts might guarantee that a contracting employee will enjoy continuing employment for a certain period, such as two years. If you work under an employment contract with a provision for the duration of your employment and are laid off before the period ends, you might have grounds to file a claim against your employer.
Depending on your job, you might have other protections under a contract against layoffs. For example, if you are a member of a union, the collective bargaining agreement might include terms covering how layoffs can be conducted. If your employer violates the terms in the collective bargaining agreement, you may have valid grounds to file a lawsuit. You can ask your union representative about the circumstances under which layoffs can occur under the collective bargaining agreement at your company.
Your company might also have policies in place in your handbook or an employment contract about severance pay. If any severance pay is listed for layoffs, you have the right to receive it.
Advance notice of mass layoffs required under federal law
The Worker Adjustment and Retraining Notification Act or WARN Act is a federal law that covers large employers with 100 or more workers. Under this law, employers with 100 or more workers are required to give their employees a minimum notice of 60 days before they conduct mass layoffs. Mass layoffs are reductions in the number of employees at one job site in which 500 or more workers will lose their jobs. Mass layoffs also include situations in which 50 up to 499 workers will lose their jobs if they comprise at least one-third of the total number of employees for an employer.
Employers are also required to give their employees notice of at least 60 days before a plant closing. This includes shutting down a single job site, facility, or operating unit in which 50 or more employees will lose their jobs.
The WARN Act only includes the notice requirements and does not provide other protections for employees in layoffs. Some states also have notice laws, and several require employers to provide some type of severance to the workers who are laid off. In Jan. 2020, New Jersey Governor Phil Murphy signed a bill into law that requires employers with 100 or more workers to give laid-off employees at least one week’s pay for each year that they worked for the employer.
Your rights in a layoff
While you might not have the right to continue working at your job, there are other rights that you might have during a layoff. If you work for a larger employer, you have the right to notice under the WARN Act. Workers in New Jersey who work for employers with 100 or more employees now have the right to severance pay. If you work for an employer with fewer than 100 employees, you may have rights to severance pay if it is promised in the company policies, an employment contract, or an employee handbook.
Your employer must also give you your final paycheck fairly soon after you lose your job. In New Jersey, employers are required to give their employees final paychecks on or before their next regularly scheduled pay dates. Under COBRA, you may also be able to continue your health insurance through your company’s group health insurance plan.
Get help from Swartz Swidler
Losing your job can be devastating. If you were laid off from your job and believe that it was illegal, you might benefit from talking to the employment lawyers at Swartz Swidler. Contact us today to schedule a consultation by calling us or by filling out our contact form.
