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Wednesday, July 17, 2019

In NJ Is It Illegal Age Discrimination If My Contract Is Not Renewed?

Clients have come to me devastated when their employers informed them that their employment contract was not being renewed. This is especially disheartening when it is after years of faithful service and a history of successful performance. A question that is commonly asked is, “Can this be illegal age discrimination, if I was not actually fired?” The simple answer is “Yes” if the facts support discrimination based on age. The New Jersey Supreme Court has definitely held that a failure to renew a contract based on age is the equivalent of an actual termination based on age, which under the NJLAD is illegal.

I have successfully represented persons in their 70's and 80's who were long-term employees of public entities and private employers, who did not have their contract renewed after years of service and was successful in obtaining monetary compensation for them. Sometimes, sex discrimination will accompany the age discrimination, such as when an employer will renew the contracts of older male workers, but not female workers.

Some businesses or public employers mistakenly think they will be able to circumvent the NJLAD prohibition’s on illegal termination based on age discrimination if they only have renewable contract employees, i.e., they will simply not renew an older worker’s contract when they want to have a younger person for the position. They mistakenly believe they will be able to have a continuous workforce of fresh young faces based on the attrition driven by the renewable-contracts-only business model.

In a NJ lawsuit brought by a septuagenarian against a community college, Nini v. Mercer County Community College, the NJ Supreme court held that a non- renewal of contract is tantamount to a forced resignation, and that “forced resignations” were equivalent to actual terminations. 

The New Jersey Law Against Discrimination (LAD), N.J.S.A. § 10:5-12(a), is a comprehensive statute that unambiguously conveys the legislatures aim to prevent and prohibit all facets of age discrimination in employment including compensation, the terms and conditions of employment, hiring and firing and retirement. However, the statute contains some exceptions: one of the exceptions states an employer is not barred from refusing to accept for employment any person over seventy years of age. However, the NJ Supreme Court in Nini held that a renewal of a contract is not a new hire, and that a refusal to renew a contract of a long time employee is similar to a forced resignation or termination, and not a failure to hire.

The Court stated that its main objective was to "determine and effectuate the Legislature's intent" by first looking at the plain language of the statute and, where necessary, using "extrinsic tools" such as legislative history, legal commentary, etc.” The Court stated that the history of the legislature was silent as to any specific interpretation of the over-seventy exception for new hires as to situations where there were contract renewals of persons over 70. The Court noted that and that the issue of contract renewals could be viewed through two lenses, one as a new hire, the other as a forced resignation. The Court rendered the ultimate decision, which is still the law,  that in terms of contract renewals, an employer’s failure to renew a contract was in reality a forced resignation or termination and not a failure to hire, and therefore discrimination in terms of an employment decision to renew or not renew a contract based on age is illegal discrimination. The Court stated that it made its decision that a failure to renew a contract based on age was illegal because of its broad and evolving interest “ to protect New Jersey's citizens from all forms of discrimination in employment and, in particular, to protect its older citizens from being forced out of the workplace based solely on age.”

We all age.

What You Can Do

I am an aggressive and compassionate employment law attorney who is successful in bringing age discrimination lawsuits and recovering money for workers who were subjected to age discrimination. I have successfully represented sexagenarians, septuagenarians, and octogenarians who were employees of public entities and private employers, who did not have their contract for employment renewed because of their employer's age bias and was successful in obtaining monetary compensation for them.

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

New Jersey employment 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 Southern, Central, Western and Northern NJ to meet with clients.



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