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Employment Law
Unless you are one of the lucky few who have hit it big in the lottery, you work for a living. The majority of people spend half their waking life working. Chances are, at some point in your career, you will run into a problem at work. It may be a personality conflict with the boss. Or you might feel you are being treated unfairly at the job. Whatever it is, it helps to know your rights in the workplace.
It is estimated that approximately one-third of all civil suits filed involve employment related disputes. Nearly seventy-percent of employees who bring their employers to trial are successful. Most employers are unaware that in the past thirty years, the amount of employment-related litigation has increased more than 2000 percent. The average jury verdict in employment cases now exceeds $500,000.
How do you know if the problem you are having at work deserves legal intervention? The following are answers to some commonly asked questions by aggrieved employees:
Q. If I am terminated for cause, may I still apply for unemployment benefits?
A. Yes. You may still apply for unemployment compensation. A representative from the New Jersey Department of Labor, Division of Unemployment Insurance, will interview both you and your employer to determine, under state guidelines, whether or not you were terminated for cause. If it is found you were not terminated for cause, you will be eligible to receive unemployment compensation. Even if it is found that you were terminated for cause, you may still be able to collect benefits. However, you may lose the first six weeks of unemployment compensation as a result of the determination that you were terminated for cause.
Q. I believe I may be the victim of workplace discrimination. What should I do?
A. The most important thing to do is to put your employer on notice of the
discrimination. Legally, if your employer is unaware of the discrimination, it
usually cannot be held responsible for not doing anything about it. Document
what you believe to be discrimination, and provide it to your human resources
department. Check your employee handbook to see whether your employer
has a policy in place for filing such complaints. Be sure to create a paper trail
of complaints so that your employer can never claim ignorance of the
discrimination. But, be careful. Do not direct any correspondence to the
individual discriminating against you or harassing you, especially if it is your
direct supervisor or the head of your company. This may cause you more
distress at work. The best course of action is to consult an attorney who
specializes in employment law.
Q. When I was hired by my company, I signed an agreement which prevents my
working with a competitor upon my termination. Is such an agreement enforceable?
A. It depends. Such agreements are called "restrictive covenants" or "non-compete
agreements". Generally, courts do not favor them. Before a court will enforce such an agreement, it must determine if the agreement is reasonably limited in scope, time and territory. For example, an agreement which states that, "upon termination, you may never work in any industry remotely related to that of your former employer for the rest of your life anywhere on earth" would not be enforceable. The best approach is to avoid signing such agreements. If that is unavoidable, then, before signing, consult an attorney who specializes in employment law, to review and/or negotiate the terms of the agreement.
Q. After leaving my employer who provided health insurance, I have not found a job that provides any. Is there anything I can do?
A. Yes. Your former employer is required to offer you health insurance. A federal statute called the "Consolidated Omnibus Budget Reconciliation Act of 1985" (COBRA) requires employers who offer group health coverage to their employees to continue to do so for 18 to 36 months after employment has terminated. An employer who fails to offer you COBRA within 30 days of your termination of
employment is subject to a fine of $50 to $110/day depending on the
circumstances.
Q. My boss asked me to do something illegal at the job. I do not want to do what is being asked, but I fear losing my job. Is there any protection for me?
A. Yes. New Jersey has one of the strongest whistleblower protection laws in the nation. The Conscientious Employee Protection Act (CEPA) protects employees who refuse to participate in illegal activities or who report such activities. In most cases, to provide proof, it is essential to document the reporting of such activities. Often, employees are punished for reporting such conduct or for refusing to partake in the activity. They may be demoted or even terminated. In such cases, an employee has one year to file a law suit against the employer. If you encounter such a situation on the job, it is prudent to consult an attorney who specializes in employment law to advise you of your rights and the remedies available to you.
Q. How long do I have to sue my employer?
A. It depends on the type of case you have. In most cases, such as harassment or discrimination, you have two years. When the case involves defamation or whistle blowing, i.e., (CEPA), there is a one year statute of limitations. If the case involves a breach of contract, you have six years to bring a cause of action. There are certain circumstances that may extend the time you have to file. To be sure you are within the statute of limitations, consult an attorney who specializes in employment law.
Q. My employer fired me without giving me a reason. Is this legal?
A. It depends. If you do not have an employment contract, and you are not unionized, chances are you are an "at-will" employee. An at-will employee serves at the pleasure of the employer and can usually be terminated at anytime for any reason. And, as unfair as it sounds, even though you do your job well, your employer can fire you merely because your boss does not like you. However, an at-will employee cannot be terminated because of his/her gender, race, age, religious beliefs, sexual orientation or other "protected classes" defined within the New Jersey Law against Discrimination (NJLAD). Nor can an at-will employee be terminated for a reason which violates public policy. To determine if you have a wrongful discharge case, consult an attorney who specializes in employment law.
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