Criminal Defense Lawyers

New Jersey Section 2C:40A-3 – Wrongful discharge of employee

New Jersey has a law on the books that protects employees from being wrongfully discharged or disciplined by their employer. This law, known as Section 2C:40A-3 of the New Jersey Code of Criminal Justice, aims to prevent employers from retaliating against workers who exercise certain rights. In this article, we’ll break down what the law says, how it protects employees, penalties for violations, and more.

What Does the Law Say?

The main purpose of Section 2C:40A-3 is to prohibit employers from firing, demoting, suspending or otherwise disciplining employees as retaliation for certain protected actions. Some key points from the law:

• It is illegal for an employer to take any disciplinary action against an employee because their wages were garnished or subjected to lien, levy or execution. This includes discharging the employee.
• Employers cannot retaliate against employees who file a complaint, bring an action or testify in proceedings related to violations of New Jersey wage and hour laws.
• Taking adverse action against an employee within 90 days of them filing a wage claim or lawsuit creates a presumption that the employer’s action was retaliatory.
• Employers who willfully violate the law are guilty of a misdemeanor offense.

So in essence, the law prevents employers from punishing workers who exercise their rights under New Jersey labor laws, like filing wage claims or lawsuits, or having their wages garnished. The goal is to allow employees to enforce their rights without fear of losing their job.

What Type of Disciplinary Action is Prohibited?

Section 2C:40A-3 bars employers from discharging, suspending or taking any other disciplinary action against employees in retaliation for protected activities. Some examples of prohibited disciplinary actions include:

• Firing or laying off the employee
• Demoting or denying a promotion
• Reducing pay or hours
• Unfairly disciplining or reprimanding
• Making unwarranted changes to job duties or work conditions
• Harassment or unfair treatment
• Unjustly denying benefits

So the law prohibits pretty much any negative employment action taken to punish an employee for exercising their labor rights. Workers are protected from both major actions, like termination, and more minor retaliation like sudden schedule changes or write-ups.

When Does the Law Apply?

For Section 2C:40A-3 to apply, the employee’s discipline must be connected to one of the following protected actions:

• Having their wages garnished or levied to pay a debt.
• Filing a complaint with the New Jersey Department of Labor about alleged wage law violations.
• Bringing a lawsuit or claim against the employer over wage law violations.
• Participating as a witness or testifying in a proceeding related to wage laws.

If the employer’s reason for discipline is completely unrelated to the employee enforcing their rights, it may not be illegal retaliation under this particular law. However, it could potentially violate other employment laws if discriminatory.

What Remedies and Penalties Does the Law Provide?

If an employee is wrongfully discharged or disciplined in violation of Section 2C:40A-3, what remedies are available? The law provides several forms of relief:

• The employee has a right to get their job back (reinstatement) if they were unjustly fired.
• The employer must pay back wages plus 200% liquidated damages for lost income resulting from the discipline.
• The employer can be ordered to correct any discriminatory action taken against the employee.
• Violations are punishable by fines of $500 to $1,000 upon conviction.
• Employers can also face contempt proceedings for not complying with orders to correct violations.

So employees can obtain reinstatement, back pay, corrected records, and their employer can face fines or even jail time for contempt. This provides strong remedies and incentives for compliance.

Proving a Violation of the Law

Since discipline is unlawful under Section 2C:40A-3 only if done in retaliation for protected conduct, fired employees will need evidence that connects their discipline to exercising their rights. Some examples of evidence that can prove illegal retaliation:

• Timing of the discipline: If the adverse action occurred shortly after the employee engaged in protected acts like filing a wage complaint, the timing alone can establish the required link. New Jersey law says discipline within 90 days of protected activity creates a presumption of retaliation.
• Statements by decision-makers: Comments or emails showing managers intended to demote or fire the employee for complaining about unpaid wages can prove the decision was retaliatory.
• Differential treatment: Showing that the employer did not discipline coworkers who engaged in the same allegedly wrongful acts can reveal the discipline was selective and retaliatory.
• Past history of retaliation: Evidence of previous employees being punished for asserting their rights can help build the retaliation case.
• Shifting explanations: If the employer’s reason for firing shifts and changes over time, it undermines their claim the discipline wasn’t retaliatory.

With evidence like this, employees can prove their discipline was connected to exercising rights protected under Section 2C:40A-3 and therefore unlawful.

What are Some Examples of Wrongful Discharge or Discipline?

To understand how Section 2C:40A-3 operates in practice, let’s look at some examples of discipline that could violate the law:

• A restaurant server files a lawsuit against her employer for unpaid wages. While the case is pending, she is suddenly terminated for alleged “performance issues”, despite no prior discipline. The timing suggests her firing was likely retaliation for suing over wages.
• A construction worker complains to the labor department that his employer is misclassifying him as an independent contractor and failing to pay overtime. Days later, he is assigned less favorable job duties. His employer’s action seems motivated by his wage complaint.
• An employee notifies her employer that her wages are being garnished to pay a debt. The employer then cuts her scheduled hours significantly, reducing her earnings. This discipline is linked to the wage garnishment.
• A retail employee testifies in a co-worker’s trial against their employer over denied overtime pay. When she returns to work, she is written up for a minor uniform violation that other workers routinely commit without discipline. The write-up appears retaliatory for her testimony.

In each of these examples, the discipline seems motivated by the employee taking actions like filing wage claims or having wages garnished – activities protected from retaliation under Section 2C:40A-3.

How Might Employers Justify or Defend Discipline?

Since Section 2C:40A-3 only prohibits discipline as illegal retaliation, employers do have some defenses if the adverse action was not actually retaliatory:

• The discipline was based on a legitimate, non-retaliatory reason. For example, firing the employee for stealing or misconduct unrelated to asserting their rights.
• The timing of discipline right after protected activity was just a coincidence, not proof of retaliation.
• The employer was unaware of the employee’s protected acts when imposing discipline.
• The employee has performance issues or other business justification for discipline predating any protected activity.

However, these defenses often fail if the employee can produce evidence of pretext, discriminatory intent, shifting explanations or other proof to show the employer’s stated reasons are a cover.

What are the Takeaways?

The major points to remember about New Jersey’s law against wrongful discharge in Section 2C:40A-3 are:

• It protects employees from retaliation for acts like filing wage claims or having wages garnished.
• Discipline motivated by protected activity is illegal, including termination, demotion, unjustified discipline, etc.
• Adverse action within 90 days of protected acts is presumed retaliatory.
• Employees can recover reinstatement, back pay, corrected records and more.
• Employers can face fines up to $1,000 and even jail time for willful violations.
• Employees should document all evidence of retaliation if disciplined after asserting their rights.

This law provides important protections for workers so they can exercise labor rights without fear of reprisals. Both employees and employers need to understand these protections against wrongful discharge in New Jersey labor law.