Mark Law Firm Recent Articles

Exceptions to At-Will Employment in New Jersey

Posted by Jamison Mark on Sep 30, 2021 2:15:53 PM


Like every other state except Montana, New Jersey is an "employment at will" state. Generally, employees have no right to any warning, due process, disciplinary action, or advance notice before being terminated.

In general, at-will workers have no guarantee that they will remain employed. They are not entitled to severance or any other compensation other than what they have already earned. Private employers are generally free to terminate workers for any legal reason or no reason at all, with or without cause, without engaging in any disciplinary or administrative procedures. Employees can also leave their jobs without notice, for any reason, at any time, without incurring any penalty.

In most states, however, there are some exceptions; not all employees are classified as at will, and not all employment relationships have the same lack of restrictions. In New Jersey, there are a few different ways that a worker’s employment can be other than at will. In these situations, an employer may be legally required to give a worker notice, engage in an escalating disciplinary or warning process, participate in mediation or negotiations, pay severance or additional benefits, or take other steps before termination.


Private Contracts

Workers may negotiate private contracts with employers that dictate the terms of employment, including how long they will be employed and how their employment can be terminated. These may include penalties for early termination for the employee, the employer, or both. If an employer terminates an employee in violation of the employment contract, the employee may file a lawsuit for breach of contract.


Union Contracts

Workers have the right to form or join labor unions under the National Labor Relations Act. According to U.S. Bureau of Labor Statistics, 22 percent of wage and salary workers in New York and 16.1 percent of wage and salary workers in New Jersey belonged to a labor union in 2020. Unions typically form collective bargaining agreements (CBA) that establish terms for employment for their members, including compensation and regulations related to discipline and termination. Unlike at-will workers, union employees cannot be terminated without just cause. If a union worker is wrongfully terminated (in violation of the CBA terms), they may have grounds to file a grievance, human rights complaint, or lawsuit.


Employment Handbooks

 New Jersey courts recognize that, in certain circumstances, the terms and conditions of an employee handbook can also create a contract that alters the presumed at-will employment status.[1] These include progressive discipline programs like “three strikes,” escalating verbal and written warning procedures, and programs that keep track of “points” for violations like absence, tardiness, etc., that result in automatic termination if enough points are accumulated within a certain period. Explaining these kinds of termination programs in a handbook can imply a promise not to terminate an employee unless or until they have been warned or disciplined in accordance with the stated rules. This can limit an employee’s at-will status: if the employer terminates an employee without following those procedures, the employee may have a cause of action for breach of contract or wrongful termination.

Similarly, if an employee handbook describes specific, terminable offenses or codes of conduct detailing permissible and impermissible activities, it might imply that an employee will only be terminated for cause. If the employer terminates an employee spontaneously or without cause, the employee may be able to assert that the provisions of the handbook created an implied contract changing their at-will status.


Mass Layoffs

Situations involving mass layoffs are also exceptions to the general at-will employment rules. The federal Worker Adjustment and Retraining Notification Act of 1988 (the WARN Act) and New Jersey state laws provide protection to employees of large companies during mass layoffs. In these situations, affected employees are entitled to advance notice of impending layoffs as well as severance payments.


Employment Discrimination and Wrongful Termination

Employers may fire at-will employees for any legal reason, but there are many reasons that are illegal under state or federal law. Federal non-discrimination laws and the New Jersey Law Against Discrimination (NJLAD) prohibit termination based on protected characteristics, including race, gender, religion, national origin, marital status, age, pregnancy, perceived or actual sexual orientation, disability, military status, and veteran status. Termination based on these characteristics is unlawful even if an employee's status is at will. Also, an employer may not terminate an employee who reports wrongdoing in retaliation for whistleblowing. If you have been terminated for an illegal reason, you may be entitled to compensation.


Have You Been Wrongfully Terminated?

 If you believe you have been the victim of wrongful termination or adverse employment action, you should consult with an experienced employment attorney. They can look at the facts of your termination and determine whether you may have been fired improperly or unlawfully. If so, you may be entitled to file a complaint with the Equal Employment Opportunity Commission (EEOC) or a civil lawsuit in state or federal court. You may be able to recover compensation appropriate to your situation; this could include job reinstatement or other injunctive relief, back pay and interest on lost wages, compensatory damages for pain, suffering, and emotional distress, reasonable attorney’s fees, statutory fines, and possibly even punitive damages. Each of these remedies has different requirements, and not all are available in every case. Your time to file a lawsuit may be limited, so don’t wait. Contact a lawyer as soon as possible.


[1] Witkowski v. Thomas J. Lipton, Inc., 643 A. 2d 546 (N.J. 1994), citing Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284, 285-86 (1985)

Topics: Employment Law, Wrongful Termination

The information on this website is made available by the Mark Law Firm for educational purposes only. It is intended to give a general understanding of New Jersey law, not to provide specific legal advice. Use of this website does not establish an attorney-client relationship between you and the Mark Law Firm and should not be used as a substitute for legal advice.