Kevin Costello and Deborah Mains

Wrongful Discharge

"Wrongful discharge" can describe so many things. First, we have to tell you what it is so that you'll understand what it isn't. A wrongful discharge under New Jersey employment law is slightly different, first of all, from a wrongful discharge as it affects a union position or a civil service position.

If you're a member of a union that has a contract (collective bargaining agreement) with your employer, and if your discharge does not violate any other provision of law but does violate the collective bargaining agreement, you usually don't have the right to sue on your own, but you certainly have the right to ask your union to bring a grievance for you. That's not a lawsuit, and the grievance doesn't challenge a "wrongful discharge" as recognized by state law, but rather only by how the collective bargaining agreement defines the term.

As well, if you are a civil service worker or a worker in a public job subject to some state administrative scheme such as the Civil Service Commission or the tenure system under the Department of Education, you have an administrative right to challenge what you contend to be a "wrongful discharge." Yet because these discharges are not recognized under New Jersey state civil rights employment law, they are not "wrongful discharges" as the law defines the term.

All employment, whether it is union or not, public or private, whether your employer has only one employee or thousands, is, on the other hand, subject to certain "legal standards" in the State of New Jersey concerning employment rights.

One of these laws is the New Jersey Law Against Discrimination or NJLAD, called one of the most comprehensive civil rights statutes in the United States. The LAD prohibits "wrongful discharge" when it is motivated by discrimination on the basis of race, sex, sexual orientation, perceived sexual orientation, disability, perceived disability, ethnicity, national origin, age, military status, familial status, religion, creed, pregnancy, gender identity, gender expression, or cellular blood trait. As well, the LAD prohibits wrongful discharge of a person who — independently of his or her own claims — assists, encourages or provides information relating to the claims of another.

The New Jersey Conscientious Employee Protection Act (CEPA), New Jersey's "whistleblower" statute, has also been called one of the most comprehensive whistleblower statutes in the nation. It affects all employment, whether public or private, and prohibits "wrongful discharge" in retaliation for engaging in protected "whistleblowing" conduct under the act. This would include objecting or refusing to participate in conduct that is fraudulent or illegal or that violates a compelling public policy of a local government, the state government or the national government.

The Pierce doctrine, commonly known as the "Wrongful Discharge in Violation of Public Policy doctrine," is not a statute, but rather a court decision that creates a right of action for discharge when someone engages in conduct consistent with public policy. Examples of this might be a retaliatory wrongful discharge against someone who files a workers' compensation claim for himself or herself, who complains about violation of his or her rights under other New Jersey labor laws, who engages in protected free speech, or who does other acts that are consistent with New Jersey public policy, but would not otherwise be cognizable under New Jersey's "whistleblower" law.

There are many other statutes and doctrine that prohibit "wrongful discharge," but it's important that you understand that our wrongful discharge action must come under one of those statutes or doctrines. If it doesn't, then the reality that a discharge is "unfair" or "unreasonable" doesn't make it illegal.

Nonetheless, if your "wrongful discharge" arises under one or more of the doctrines or laws I've discussed above, then you may have the right to compensatory damages, punitive damages, equitable back pay, equitable front pay, reinstatement and attorneys' fees.

The Mount Laurel employment and civil rights lawyers of Costello & Mains, P.C., concentrate their practice heavily in wrongful discharge cases of all kinds, and under all of the above statues and laws. We know how to help you.

Please call Costello & Mains today at 856-291-0642 (local) or 800-421-0212 (toll-free) or contact us online to arrange a confidential consultation.

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