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Monday, April 17, 2023

NJ Employment Attorney, Executive Employee with Contract Wrongfully Terminated

Contractual employees may be aghast if they are terminated in violation of their written contract. Employees who are employed according to the terms of a contract generally feel more secure in their position than those who work “at-will” without a contract. This may be particularly true of long-term employees and those holding executive positions because of the amount of time they have invested in the position. With a contract, they initially have more security as to their remaining employed, their wages and certain terms of their position such as expected hours, mandatory travel, etc., and the employer’s responsibilities to be maintained according to the terms of the contract.

 

Termination of Employee with a Contract

If an employer has an express written contract with employee, both sides have a duty to abide by the terms of the contract. Each side must follow what the contract says. A typical employment contract lists reasons for which the employee can be fired and ideally defines the situation, i.e., what employee act or failure to act, qualifies as a “for good cause” event for which the employee can be fired under the contract. Some examples are if an employee does not meet certain sales metrics, fails to submit business reports on time, does not show up at mandatory meetings, or customer complaints.

Other employment contracts will contain broad language that an employee can be terminated only “for good cause” but do not define triggering events. Unfortunately, I have reviewed more of the latter kind in recent years, which language makes it easier for employers to fire employees under false pretenses and illegal reasons and dissuades the employee from later challenging it.  A “for good cause” termination must be for reasons related to business needs and goals. They cannot be for personal or illegal reasons, such as you refused to go out on a date with your boss, you are pregnant, you complained that you reasonably believe your employer is violating the law (even if it turns out that they were not.)

Even with broad language in a contract which does not define the specifics of a “for good cause” termination, there may be valid reasons for an employer to fire an employee for good cause, even with a contract. Some examples are:

  • Revealing company trade secrets
  • Harassing coworkers
  • Theft or other criminal activity
  • Threats of violence
  • Disrupting the work environment
  • Violating specific company rules
  • Deliberate subordination and refusal to follow directions of superior related to business needs and goals.

 

Good faith and fair dealing

 

All employment contracts obligate the employer to treat the worker fairly. This obligation while not written into the contract is called the “covenant of good faith and fair dealing”. This does not mean personality disputes, disputes over how the business should be run, or arguments necessarily qualify. To breach the covenant of good faith and fair dealing, an employer has to engage in egregious conduct, such as:

 

  • Fabricating evidence of an employee’s poor performance to justify firing in retaliation for  whistleblowing or other illegal reason
  • Terminating an employee to prevent her/him from collecting sales commissions
  • Terminating an employee in close proximity to time before her/his retirement benefits vest
  • A supervisor’s falsifying evidence of the work performance of the employer’s “rising star” to avoid the rising star being promoted and being in direct competition with the supervisor.

 

Fabricated excuses and changing of the guard

 

When an employer wants to terminate an employee under contract and the termination is for an illegal reason, such as age bias and wanting to replace an older worker with a younger worker, the employer may allege a general excuse such as poor job performance or low productivity of the older worker, which allegations upon examination have no basis in fact. This frequently happens when there is a “changing of the guard”, i.e., an older supervisor retires and the new young supervisor wants to get rid of the older workers. It happens when a new male supervisor wants to get rid of women who hold positions of authority beneath him although the female employee’s work may be outstanding and she may have a history of a sterling work record. It can also happen when a new supervisor is racist and wants to terminate a long-term employee who is person of color in the workplace.

 

Employers and pre-emptive strikes

When an employee has a written contract, employers who choose to terminate an employee who is a member of a protected class, such as age or sex, sometimes lay ground work in advance of giving the employee the termination notice. The employer or supervisor could place notes in the employee’s file alleging dissatisfaction with the quality of her/his work or poor job performance. Spurious reasons could be documented such as an inability to get along with other employees, when in fact the worker has good relationships with co-workers. A common ploy used for an employer’s pre-emptive strikes is a sudden downturn in the employee’s performance evaluations after years of receiving positive evaluations, even receiving awards for “Employee of the Year”. A sudden downgrade in an employee’s periodic performance evaluations is the casus belli justifying the termination.

 

Red flags and sudden downturn in performance evaluations

Each employer has their own performance evaluations which are tools to improve the employee’s production and provide structure for employee’s incentive. Performance evaluations are typically given periodically or yearly. They most commonly are based on a mixture of various subjective and objective criteria. This means that there will be some aspects of the evaluation that will be based on definable measurements, e.g., the number of sales an employee has closed, as well as some aspects that are a matter of opinion, such as the employee’s demeanor or ability to effectively communicate.

If your performance evaluation plummeted after years of your receiving positive evaluations, it could be that the opinions expressed within it are speculative, having no basis in reality, and are purposely negative for the sole purpose of contriving an excuse to fire you. If your performance evaluation declined after years of receiving positive ones and you think you are being targeted for termination, you should call this office immediately for a free consultation.

If You Quit Your Job, You May Lose Right to Prevail in a Lawsuit.

In many instances of discrimination, if you quit your job, you may lose right to prevail in a lawsuit unless you first take certain legally required measures to preserve your job while you are still employed. If you are thinking of quitting, or think you will be fired, you should contact this office immediately for a free consultation to discuss your options in the safest way for you.

Let Me Fight for You.

Let me fight for you. If you think you may have been discriminated against, contact Hope A. Lang, Attorney at Law today for a free consultation. I accept discrimination cases from all over New Jersey. I have represented both public and private employees who were pushed out of jobs  for illegal reasons and was successful in recovering financial compensation for their emotional pain and suffering and moneys for lost wages, both for past lost wages and projected future lost wages. If you think you are being pushed out of your job because of your age, you should contact this office immediately for a free consultation.

What You Can Do.

I am an aggressive and compassionate employment law attorney who is experienced in successfully representing persons who were discriminated against at work. I am successful in bringing employee lawsuits against governmental entities and private employers and recovering money for victims of age, race, sex, disability, sexual orientation, and other discrimination.

Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Cherry Hill, Vineland, Union, Plainfield, Hamilton Township, Lakewood, Edison, Parsippany-Troy Hills, Franklin, Lakewood, and every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.


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