Suing Your Employer and Staying Employed? – Part 1

Office Building
Chris Bastian via flickr

Can you sue your employer in New Jersey and have a right not to be terminated because of the lawsuit? A not so recent Appellate Division case, Alexander v. Kay Finlay Jewelers, Inc., 208 N.J. Super. 503, 508 (App. Div. 1986), held that “[t]here is no statutory or regulatory proscription against a firing in retaliation for the institution of a civil action against the employer as a means of resolving a salary dispute.”  The court characterized the contractual salary dispute giving rise to the termination of plaintiff’s employment as “involv[ing] a matter having no significance beyond the private interests of plaintiff and defendant.”  Id. at 508.  Recently, an unreported Appellate Division ruling in  Perlman v. Kessler Institute, A-0642-07T2 (App. Div. May 9, 2008) concurred: “We see no reason to revisit this issue, and decline plaintiff’s invitation to overrule Alexander v. Kay Finlay Jewelers, Inc.”.

Yet, as the language of Alexander implies, it may be unlawful to terminate an employee who has sued her employer over a clear mandate of public policy concern, warranting such legal protection. For instance, a suit seeking to maintain a safe working environment in the presence of hazardous chemicals should not expose the “whistleblowing” employee to firing by reason of bringing such legal action in the public interest.

In Erickson v. Marsh & McLennon, Co., 117 N.J. 539, 560-61 (1990), New Jersey’s Supreme Court weighed in on this issue.

. . . . .  an employer has an absolute right to discharge an ‘at-will’ employee even if that employee has retained a lawyer to protest the employer’s actions–provided only that the employer not violate any clear mandate of public policy. (citations omitted)  . . . . . A decision to terminate an ‘at-will’ employee who has adversely reacted to management’s criticism does not constitute discrimination based on gender. Rather, it is a legitimate, non-discriminatory method of handling the daily operations of a business. (emphasis added)


The unreported Appellate Division decision in Ronald C. Mason  V. Zoom Technology, Inc., No. A-0727-08T3 (App. Div. Aug. 3, 2010) recently applied Erickson to dismiss a retaliation claim that was grounded on an employee’s threat to sue his employer.

                        The final argument in support of plaintiff’s Pierce [public policy] claim is that he was terminated in retaliation for his threat to sue defendants. Both Chuck and Chris Hansen acknowledged that plaintiff was terminated, in part, because plaintiff threatened to sue them. However, because the threatened suit was to vindicate an interest personal to plaintiff, this argument also fails to identify a violation of a clear public mandate. [See   Erickson, 117 N.J. at 560.]

Id., slip op. at 22-23. (emphasis added)

The takeaway is that an employer may be free to discharge a litigious employee who is acting solely in his personal interest. This is not the case when an employee brings suit over a clear mandate of public policy concern.  As we address in part 2 of this blog post, an employee’s charge of employment discrimination to a government agency designated for that purpose is almost always considered an action brought in the public interest.  Since the threat of suit in Mason v. Zoom, supra. was at least in part based on a claim of employment of discrimination, the correctness of that ruling remains in doubt given New Jersey’s strong public policy to eradicate workplace discrimination.

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