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You may have heard recent discussions of proposed state and federal “right to work” laws, and these laws are sometimes mentioned in the context of protecting workers from arbitrary termination or termination for COVID-19-related illness. Unfortunately, these issues are not what “right to work” laws are really about, although it’s understandable that their purpose is often misconstrued.
New Jersey law classifies most employees as “at will." Private employers in New Jersey are generally free to terminate at-will workers for any legal reason or no reason at all, with or without cause or notice, without engaging in any disciplinary or administrative procedures. At-will workers have no guarantee that they will remain employed from one day to the next, and they are not legally entitled to severance or compensation other than what they have already earned. On the flip side, at-will employees can leave their jobs without notice, for any reason, at any time, without incurring any penalty.
What Does “Right to Work” Mean?
Although many people assume that “right to work” is the opposite of employment at will, this is not the case in most circumstances. Right to work laws do not enact any additional protections for employees other than in one limited situation:
“Right to work” laws protect workers from being fired for declining to join a union.
Individuals in “right to work” states who work for unionized companies cannot be forced to join a new or existing union, pay union dues, or abide by the terms of the contracts the union negotiates with the employer. If they decline to join a union, however, they also give up the rights and protections that the union’s members enjoy. Employers must follow the terms of the contracts they negotiate with their unions, known as collective bargaining agreements (CBAs). CBAs lay out the conditions and procedures required to hire, terminate, discipline, promote, and demote covered workers.
Members of a union are parties to a contract of employment (the CBA), which means they are not at-will employees. Violation of the terms of the CBA, by either the employer or the worker, is grounds for a breach of contract action. Non-union workers remain at will and are entitled to negotiate their own terms of employment with an employer, which may hire, promote, demote, and terminate them in any legal manner.
Are All Non-Union Employees At Will in New Jersey?
In New Jersey, there are several ways that a non-union worker’s employment can be classified as other than at will. A worker may be employed according to the terms of a negotiated private contract. New Jersey courts also recognize that, in certain circumstances, an employee handbook can create a contract, which changes workers’ at-will employment status.[1] Employees of state, local, and federal agencies are also usually not at-will workers.
Do New Jersey At-Will Employees Have any Protections?
New Jersey employers may fire at-will employees for any legal reason, but many reasons are illegal under state or federal laws like the New Jersey Law Against Discrimination (NJLAD). An employer may not terminate, refuse to hire, or take another adverse employment action against an employee (or potential employee) based on protected characteristics such as race, national origin, gender, perceived or actual sexual orientation, religion, marital status, age, pregnancy, disability, military status, and veteran status. Whistleblower protection laws like the New Jersey Conscientious Employee Protection Act (CEPA) prohibit an employer from firing or taking adverse action against an employee in retaliation for reporting wrongdoing or participating in an investigation.
The Americans with Disability Act (ADA) and the NJLAD also protect workers who need accommodation in the workplace for disabilities or illnesses. An employer or potential employer must engage in good-faith discussions about whether a reasonable accommodation would allow an individual with a physical or mental restriction to perform the duties of a position. Employers may not simply refuse to hire or terminate employees based on health conditions or restrictions; instead, they must try to explore possible accommodations. If you believe you have been unfairly terminated or refused work because of a health issue, you should speak with an experienced disability discrimination attorney.
Do You Need an Employment Lawyer in New Jersey?
If you believe you have been wrongfully terminated, denied employment, or otherwise subjected to workplace discrimination, you should consult with an experienced employment attorney. You may have grounds to file a complaint with the Equal Employment Opportunity Commission (EEOC) or a lawsuit in state or federal court.
A successful claim could allow you to recover compensation for your damages, potentially including job reinstatement or other injunctive relief, back pay, interest on lost wages, compensation for pain, suffering, and emotional distress, reasonable attorney’s fees, statutory fines, and punitive damages. An attorney can help you understand your options. The law limits your time to pursue these claims, so don’t wait—contact an experienced New Jersey employment 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).
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