Employment Law
Advice for both employers and employees You cannot engage in business without some knowledge or advice relating to the field of employment law. At Roth Law Offices we offer both employers and employees advice concerning their questions and problems in this ever changing area of law. Many changes in Federal and State laws during the last decade have had a significant impact on the employee-employer relationship. Legislation, together with recent court rulings, has altered the traditional relationship between employees and employers in ways which neither could have imagined a few years ago. Changes have altered circumstances considered in hiring from before a person is hired to well after the person is no longer employed. Pre-Employment Considerations Recent Federal and State statutes may apply, depending upon a number of factors, to the employee-employer relationship even before a person is hired. There are prohibitions against discrimination. Provisions of the Americans With Disabilities Act of 1990 may govern the type of inquiries an employer may make of a prospective employee in the application and interview process. These statutes do not apply to every employee-employer relationship, but they may, depending on the size of a business and other considerations. You need to know if they do apply in your situation. You need to know how they affect your business, and you, if they do apply. For example, under the Americans with Disabilities Act, if it applies, an employer may not ask disability related questions of a prospective employee at any time prior to making that person an offer, with the exception of asking whether a person can perform required job related functions. Even this inquiry is allowed only so long as all prospective employees are asked the same questions. In addition, under anti-discrimination laws, there are limits to what an employer may ask a prospective employee prior to hiring that person. An example of what is prohibited are inquiries of age, date of birth and prior residences. During Employment Once a person is hired, there are issues which may arise that have legal implications for both the employee and the employer. Among the many areas of concern to a business of any size are: 1. The employee handbook 2. Issues of Workplace Privacy 3. Sexual Harassment 4. Discrimination (Age, Race, Sexual) 5. The applicability of the Federal Family and Medical Leave Act of 1993 and the State Family Leave Act. Termination Issues After an employee is terminated there are issues which may arise regarding termination. Among those issues are wrongful termination and/or discrimination. Traditionally, in New Jersey and in most other states, the majority of employees have been considered employees at will. An employee at will can be terminated by an employer at any time with or without cause. Since the early 1980’s, the New Jersey Supreme Court has recognized significant exceptions to the employment-at-will rule. Most exceptions have occurred when a court finds that there is an implied contract between the parties. An implied contract is most often found when there is an employee handbook. But not all employee handbooks create an implied contract between employer and employee. Our courts have recognized certain disclaimers, which, if contained in a handbook, allow an employee to be terminated even under situations not covered in the handbook. In addition, some pre-employment agreements have been recognized by New Jersey courts to supersede terms contained in an employee handbook. Post Termination Restrictive covenants entered into between employers and their employees are another issue which may frequently lead to a dispute between the parties when their relationship is terminated. While New Jersey courts have recognized the validity of these agreements, they must be reasonably necessary to protect the legitimate interests of the employer, while not imposing an undue hardship on the employee or be injurious to the public. It is generally the burden of the employer to prove these elements. Another area of concern deals with request made to an employer for a reference on behalf of a former employee. This usually occurs when the employee was discharged for cause. Good advice at all of these stages of an employment relationship is worth the cost. It could be said that good advice does not cost, it pays. We invite you to contact Roth Law Offices for a confidential consultation to discuss the particulars of your situation. |
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