Most people are employed at will in New Jersey and almost all other states. At-will employment means that an employer can decide to terminate an employee whenever the employer wants and for nearly any reason. However, employers can’t legally fire employees for unlawful reasons. When an employer’s reason for firing an employee violates a statute, is discriminatory, breaches a contract, or amounts to a public policy violation, the terminated employee can pursue a lawsuit against the employer for wrongful termination. Here is what to know from the attorneys at Swartz Swidler about wrongful termination lawsuits, how they are filed, and how they work.
Understanding At-Will Employment
Except for Montana, states in the U.S. follow at-will employment rules. Under this approach, employers and employees are both allowed to end the employment relationship at any time and for nearly any reason. This means you can quit your job even if you don’t have a good reason for doing so and don’t have to provide notice. Your employer can also fire you at any time even when the employer doesn’t have a reason for doing so. For example, your employer could legally fire you because your supervisor thinks your voice is annoying. While that might be unfair, it is not illegal. However, employers can’t fire workers for illegal reasons or in breach of a contract or public policy.
The following exceptions to at-will employment apply in New Jersey:
- Firing an employee in violation of the terms included in collective bargaining agreements (CBAs) for unionized workers
- Firing an employee in violation of a written or oral employment contract
- Terminating employees as a part of a mass layoff without providing proper advance notice and severance pay under state law and the federal Worker Adjustment and Retraining Notification Act of 1988
- Terminating an employee for an illegally discriminatory reason
- Firing an employee in violation of a state or federal statute
- Terminating an employee for whistleblowing or participating in an investigation
- Firing an employee in violation of established public policy
Understanding Wrongful Termination
When people are fired, most are shocked and believe that their termination was unfair and wrongful. While being fired can be a horrible experience, most terminations are not considered legally wrongful. Instead, under employment law, wrongful termination usually means an employee was fired in a way that violated federal or state law. It can also involve a termination that violates an express or implied contract or an established public policy.
Wrongful Termination, Retaliation, and Discrimination
Members of certain protected groups are protected from discrimination in the workplace based on their characteristics under both state and federal law. The New Jersey Law Against Discrimination (NJLAD) is the state anti-discrimination law. The most important federal anti-discrimination law is Title VII of the Civil Rights Act of 1964, but there are several others. State and federal anti-discrimination laws prohibit discrimination in the workplace based on the following protected statuses:
- Sex
- Age
- Gender identity
- Genetic information
- Race
- National origin
- Citizenship status
- Sexual orientation
- Disability
- Pregnancy
- Religion
- Color
- Military status
- Familial status
- Others
New Jersey law provides broader protection against discrimination than federal law and applies to all employers in the state. Federal anti-discrimination laws apply to employers with 15 or more employees (20 or more for age discrimination) and protect fewer characteristics. If you are a member of a protected group and were discriminated against in the workplace, your employment lawyer can assess your case and help you to decide whether to file it in state or federal court.
Your employer also can’t fire you in retaliation for reporting its illegal conduct against the government, filing a discrimination complaint, or reporting other wrongful actions occurring in the workplace.
Options When You Think You Have a Wrongful Termination Claim
You have a few options for filing a wrongful termination claim. If you were fired for an illegally discriminatory reason, you could file a complaint with the New Jersey Division on Civil Rights to pursue an action under state law or with the Equal Employment Opportunity Commission (EEOC) to pursue a claim under federal law.
You should keep in mind that the administrative remedies that might be available to you through the New Jersey Division on Civil Rights or the EEOC are limited. This means that pursuing a claim through one of these agencies might not allow you to recover full compensation for your losses.
You can also choose to file a lawsuit in federal or state court. You’ll need to determine whether it might be more appropriate to pursue your case in state court or federal court before choosing. An employment lawyer can help you determine the relevant laws that apply and whether it makes more sense to file a state or federal lawsuit.
Steps to File a Wrongful Termination Lawsuit
Filing a wrongful termination lawsuit involves the following steps:
1. Gather Evidence
The first step you should take is to gather evidence about your termination. Gather copies of emails, text messages, memoranda, and other documents that might help to support your claim. If you can, get a copy of your personnel file from your employer, including your performance evaluations. Document comments that might have been made, including the date, time, place, and the names of any witnesses who saw and heard what happened.
Gather the following types of evidence to help with your claim:
- Performance evaluations
- Personnel file
- Memoranda and other communications from your supervisor
- Employee handbook
- Company Policies
- Termination notice or documentation about what was said when you were fired with the date, time, place, and names of anyone present
- Collective bargaining agreement if unionized
- Employment contract if applicable
- Pay stubs
If there were any witnesses to what happened, ask them to give you written, signed statements about what they observed. This can be particularly helpful when you were terminated for a discriminatory reason. Make sure to write down the names and contact details of the witnesses in your case. Even if you can’t get a statement, your lawyer can talk to them later to learn what they saw.
You should keep your documents organized and store them in a place you can access. If you think your employer is preparing to fire you illegally, keep copies of your documents away from work at your home.
2. Retain a Competent and Skilled Employment Lawyer
While you are not required to hire an employment lawyer to file a wrongful termination lawsuit, it is not a good idea to try to represent yourself in this type of claim. Wrongful termination cases are complex, and employers often have aggressive defense lawyers on retainer to defend against anything that might be filed. It is best to talk to an experienced employment attorney at Swartz Swidler to receive a fair and honest assessment of your case. Your lawyer will also know the relevant state, federal, and local laws that apply to your claim.
If you are concerned about not having enough money to retain a lawyer, you shouldn’t worry. Most employment attorneys offer free initial consultations. This means that you can talk to a lawyer to learn about your case for free. If you subsequently decide to retain them, most will work on a contingent-fee basis. This means your lawyer will only get paid if and when they successfully recover compensation for you. Employment lawyers typically charge a percentage of the amount of compensation recovered through a settlement or verdict. You should ask the lawyer about how other costs will be handled while your case is pending.
3. Draft and File a Civil Complaint
After your lawyer has helped you decide where to file your complaint, the next step will be to draft and file it. The complaint is the initial legal pleading that is filed in court to initiate a lawsuit. If you were terminated for a discriminatory reason, you will either file a complaint with the New Jersey Division on Civil Rights or the EEOC. If you were fired for a reason that violated a state or federal statute or in breach of an employment contract, you will file your complaint in civil court.
Your attorney should help you by drafting your complaint and ensuring that it is properly filed. They will also ensure the defendant is properly served with notice of your case and file a return of service with the court. Once your employer is served, it will have a set period to draft and file the answer to your complaint.
4. Discovery
After the initial legal pleadings have been filed, your case will enter a phase called discovery. During this stage, you and the defendant will have to exchange relevant evidence and information about your case. The discovery process might include an exchange of documents and other types of evidence, written interrogatories, and depositions. If you were unable to get a copy of your personnel file, your attorney can obtain it during the discovery process.
5. Negotiation
Throughout your lawsuit, your lawyer will engage in continuing negotiations with your employer’s counsel to try to resolve your case through a settlement. Most wrongful termination cases are settled outside of court as a result of negotiations. Many employers prefer to settle wrongful termination cases instead of risking a loss at trial and damage to their reputations. In some cases, however, an employer might refuse to settle a claim and litigate it through trial.
6. Mediation or Arbitration
Many litigants in wrongful termination lawsuits attempt to resolve them through alternative dispute resolution procedures, including mediation or arbitration. If you try to mediate your case, you and your employer will meet with a neutral third party who is trained in facilitating settlement agreements. If you reach a settlement in mediation, the agreement will be memorialized. Once a settlement is reached, your case will be over.
A second alternative dispute resolution method is arbitration. This is a hearing that is held before an arbitrator. The hearing has simpler rules and procedures than a trial. A decision reached in arbitration is binding. Some employers include mandatory arbitration agreements in the paperwork employees sign during onboarding. If you signed an arbitration agreement, your attorney can review it to determine whether it is valid or if you should challenge it.
7. Trial
If your case isn’t resolved through a settlement, you will have to take your case to trial before a jury or judge. If you go to trial, you and your former employer will present evidence, call witnesses, and conduct cross-examinations of the witnesses called by the other side. Once both sides have rested, the jury or judge will make the decision and return a verdict in either your favor or your employer’s.
At trial, you will need to submit evidence for admission, make appropriate objections, and follow all of the required procedures. Since most people do not have years of legal training and experience, this is another good reason to retain an experienced employment lawyer who has significant trial experience. If you lose your case at trial, you can file an appeal to a higher court. However, your appeal will need to be based on legal grounds. Similarly, your employer can appeal to a higher court if a verdict is issued in your favor.
Get Help With Your Wrongful Termination Case
If you think your employer’s reason for firing you was illegal or otherwise wrongful, it’s important to speak with an experienced lawyer as soon as possible. The attorneys at Swartz Swidler focus on employment law and can help you understand whether your claim is legally valid. Request a free consultation today by calling (856) 685-7420.
