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Wednesday, June 1, 2016

Can I Be Fired for Asking for a Raise?

There is no specific law in NJ that prohibits an employer from firing you because you asked for a raise. An employer can fire an at-will employee for any reason at all, provided it is not an illegal reason. However, depending on the total facts,  the firing could be evidence of a larger pattern of illegal discrimination or illegal retaliation for whistleblowing which could be grounds for a lawsuit.

Sometimes employers will pay workers who are of a particular protected class under the law, such as persons of a certain racial or ethnic background or age,  less than workers in the same job description and who are not of that class. Such disparity in pay based on race or ethnicity or age is illegal under state and federal law. If a person complains about such disparity and asks for a raise to be paid comparably to the other similarly situated workers and is fired as a result, that complaining employee possibly has a claim of discrimination as well as retaliation. In a few highly fact sensitive situations, where there is disparity based on race, ethnicity or other protected characteristic, the employee possibly may have a case if he is fired because he asked for a raise, even if he did not complain about the discrimination.

Employers are prohibited from terminating or otherwise retaliating against workers who complain to the employer that they are not being paid the minimum wage. If a person asks for a raise because he/she is not being paid the legal minimum wage under the State Wage and Hour Law, and the employee is fired as a result, the employee may have a claim against the employer under the Conscientious Employee Protection Act ("CEPA"), commonly known as the whistleblower law. Effective January 1, 2015, as per the date of this post, the general minimum wage rate in New Jersey is $8.38 per hour with certain exceptions per the statute.

Likewise if the employee asks for a raise to compensate for the employer’s mis-classifying the employee’s job description so as to avoid having to pay legally mandated overtime rates, depending on the totality of the  facts, the terminated employee possibly has a whistleblower claim. According to New Jersey adoption of the federal statute, the Fair Labor Standards Act, employees exempt from overtime are, “Any individual employed in a bona fide executive, administrative, professional or outside sales capacity shall be exempt from the overtime requirements of N.J.A.C. 12:56-6.1.”

Persons asking for a raise should always be aware that depending on the context, i.e.,  the reasons offered by the employee for believing he should be given a raise, etc., the asking for  a raise may be viewed by the employer as a subtext for an employee threat of,  “Give me a raise or else I will quit.” Employers generally do not like ultimatums and could terminate the employee in response. While there is nothing wrong in asking for a raise if you believe you are bringing value to the company for which you are not being recognized or fairly compensated, if you are an at-will employee, it could act as a trigger for termination if the employer has considered you to be a marginal worker and has been unsatisfied with your work. 

Terminated employees should not sit on their rights if they have been terminated after asking for a raise if they think that their age or other legally protected characteristic may have been a factor in the termination decision, and they should consult with an experienced employment attorney. Sometimes the employer in an attempt to avoid a lawsuit, will sugar coat the termination speech with phrases such as, “ We value you as an employee for all these years but our business is down,” or,  “You have been a good worker, but we are eliminating your position.” Workers may feel there was no discrimination if the employer treated them kindly although other workers who are not part of their protected class were retained. Particularly older workers may feel there was no discrimination if the employer handled them with “kid gloves” or even apologized for the termination, yet retained the younger workers. 

If your employer terminated you and you believe that you may be the victim of illegal discrimination or retaliation, it is essential for you to contact an experienced and competent employment attorney who will be aggressive about enforcing your rights.

Every situation is fact specific, and if you are a person who believes you may be the target of the employer's illegal acts, please contact Hope A. Lang, Attorney at Law, today for a free consultation.

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