Employment law misconceptions: Wrongful termination, sexual harassment, disability, and more

Tuesday, 07 February 2012 07:25
moskowitzAndrew020712_optBY ANDREW M. MOSKOWITZ

Many misconceptions exist about what it is and is not against the law as applied to the workplace. The purpose of this article is to try to clarify some of these misconceptions.

Hostile work environment. Many people believe that a hostile work environment is what it would seem to be: a work environment that is hostile. In fact, there is no law that prohibits a supervisor or co-worker from being hostile. Discourtesy or rudeness is not against the law. As one court has noted, “a supervisor's coldness, lack of civility, or failure to provide employees with Christmas gifts or party invitations” does not violate the law. As noted by another court, an employee “is not entitled to a perfect workplace, free of annoyances and colleagues she finds disagreeable.”

The law does prohibit sexual harassment. Sexual harassment is harassing conduct that is sexual or sexist in nature and which is severe or pervasive. Harassment based on other protected characteristics, such as race, religion, age and disability, may also be against the law. For example, the use of racial epithets or ethnic slurs or inappropriate comments concerning an employee’s disability, if severe or pervasive, constitutes a hostile work environment.

In sum, many classes of behavior are prohibited under the law, but hostility is not one of them.

Wrongful termination. Many people are surprised to learn that, in most cases, the law does not prohibit an employer from being unfair. Virtually everyone reading this article is an “employee-at-will.” What that term means is that an employer can terminate its employees at any time, and for any reason, for cause or for no cause at all. Similarly, employees can quit their employment at any time and for any reason.

An employer may decide it does not like the employee. Firing an employee that you do not like is not illegal. An employer need not have a good reason for terminating an at-will employee.

An employer is prohibited from terminating an employee because of his or her age, gender, race, ethnicity or disability. In addition, an employer may not fire an employee because he or she complains about or testifies regarding discrimination in the workplace.

In New Jersey, an employer may not fire, demote or harass an employee who “blows the whistle.” This term refers to employees who disclose or threaten to disclose, or object to or refuse to participate in an activity that is either illegal or contrary to a public policy concerning public health, safety, or welfare or the protection of the environment.

Finally, in some cases, an employee manual or handbook may constitute a contract between the employer and the employee.

Severance. In most cases, an employee who has been fired is not automatically entitled to severance. This rule applies even where an employer has previously offered severance to other employees who were terminated.

Disability Leave and Workers Compensation. Many people with whom I consult start the conversation by stating that they were “out on disability” or “out on workers comp.” My response is to tell them that they are incorrect. Although an employee may be entitled to state disability benefits and/or workers compensation when they suffer an illnesses or job-related injury, these laws do not entitle them to keep their job. Only in limited circumstances are entitled to take leave and return to their job.

Employees with a serious medical condition whose employer has 50 or more employees (and who have worked at least 12 months and 1,250 hours during these 12 months) are entitled to take leave and be restored to their original position. In addition, in New Jersey, unless an employer can demonstrate that affording a leave would impose an undue hardship on the operation of its business, they must provide it to employees who are “disabled.” The term “disabled” is a broad one that encompasses any mental or physical illness—such as, for example, depression or heart disease-- that prevents the normal exercise of any bodily or mental function.

Andrew Moskowitz is a partner at Pashman Stein in Hackensack, where he focuses his practice on employment law. He represents both employees and employers. He also advises on and litigates non-compete matters and handles commercial and general litigation cases.