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Tuesday, March 13, 2018

Age Protection Extends to New Jersey Workers over Age 70

Some businesses and public entities incorrectly assume that the New Jersey Law Against Discrimination (LAD) gives age protection only to those workers under 70 years of age. This is because of a clause (frequently misinterpreted by employers to further their own interests) in the LAD stating that nothing in the statute shall be construed to prohibit an employer  from refusing to accept for employment any person over 70 years of age. This clause, as interpreted by the NJ Supreme Court is meant to narrowly apply only to brand new hires, not long term employees who must get their contracts renewed every year and have a pre-existing relationship with the employer.

The New Jersey Supreme Court has held allowing employers to not hire back to work a person over 70 after their contract had expired, would have restricted the intent of the LAD and been contrary to law.  Frequently public employees and private employees have a contract to be renewed every year. The Supreme Court has interpreted this clause to mean that if a employer fails to renew the contract of a long-term employee as the employer has done in previous years, it is an actual termination. It should not be characterized as a "failure to accept for employment" matter; it is an actual termination.

This is well-settled law. The Supreme Court upheld that in a case of termination, the age of 70 is not an exception to the LAD's protection against discrimination because of age.  Catalane v. Gilian Instrument, 271 N.J. Super. 476 (1994) certifi. denied, 136 N.J. 298 (1994) (Catalane plaintiff was 79 at time of termination); Nini v. Mercer County Community College, 202 N.J. 98 (2010). The Nini Court held that the refusal to renew a contract of an employee who is 70 or older "was the equivalent of a termination, an act that fits squarely within the prohibitions of the LAD."

The Nini Court had to interpret the New Jersey LAD and determine whether the over-seventy exception, i.e. "nothing herein contained shall be construed to bar an employer from refusing to accept for employment or to promote any person over 70 years of age" applies to the non-renewal of an existing, over age 70 employee's contract of employment. In Nini, the Plaintiff, over age 70, had been an employee for 26 years.

The Nini Court held that the non-renewal of an over age 70 employee's contract was akin to a prohibited termination, and it did not fit into the LAD's exception as to "new" hires.  The Court held that the intent of the statute would be thwarted if over age 70 workers did not have their contract renewed because age was a factor, even though the rehiring was optional and at the discretion of the employer.  

In Nini, the Supreme Court concluded that:

  • The LAD prohibits both terminations and forced retirements based on age.
  • The LAD has a specific intention to protect those employees over seventy who have a  pre-existing relationship with the employer from being pushed out of the workforce  based on age.
  • The Legislature would not want to characterize workers such as Nini as new hires and thus permit discriminatory conduct against a single class of workers with a pre-existing  relationship to the employer, when all other similarly situated employees are protected.
  • There is a broad and evolving interest on the part of the Legislature to protect our citizens from all forms of discrimination in employment and, in particular, to protect our older citizens from being forced out of the workplace based solely on age.
  • If employers were allowed to not hire back to work a person over 70 after their contract had expired, it would have restricted the intent of the LAD and been contrary to canons of the LAD.

Discrimination is widespread and workers who believe they are being subjected to illegal age discrimination frequently have options. I have represented both private and public employees who were over 70 years of age and octogenarians and I was successful in obtaining six figure settlements for these Plaintiffs.

What You Can Do

If you believe that your employer used age as the determining factor as to which employees’ contracts were going to be renewed, it is important that you consult with an attorney who is experienced in age discrimination. I am an aggressive and compassionate employment law attorney who is experienced in representing older workers.

If you are being subjected to such unlawful workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.

New Jersey employment law attorney, Hope A. Lang, Attorney at Law serves clients throughout the state, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, Western and Northern NJ to meet with clients.

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