New Jersey Employment Lawyer Blog

Articles Posted in Employment Contracts

Published on:

A New Jersey court recently ruled that a company can be liable for breach of contract, among other claims, when it withdraws a job offer after an employee resigns from his current job based on the new job.

The job offer was made by Onward Search, a staffing company, to an individual named John Kenny. In August 2014, Onward contacted Mr. Kenny to see if he was interested in freelance work for a company called Tandem Seven. Mr. Kenny, a “user experience architect,” indicated he was interested in working on an eight to twelve month project for Tandem at an hourly rate of at least $85 per hour. He subsequently had multiple job interviews with Tandem.

On Thursday, September 17, 2014, Justin Court, a representative of Onward Search, asked Mr. Kenny whether he could accept a job offer on Mr. Kenny’s behalf if Tandem made him an offer. Mr. Kenny told Mr. Court he could do so as long as “everything we discussed was still in place.” They confirmed that Mr. Kenny agreed to a rate of $85 per hour and needed to give his current employer two weeks’ notice of his resignation.

Employee upset after job offer rescindedApproximately 12 minutes later, Mr. Court called Mr. Kenny back and told him he had accepted an offer from Tandem on his behalf. In response, Mr. Kenny confirmed he was available to start working for Tandem on Monday, October 6, 2014.

On September 18, 2014, Mr. Kenny resigned from his current job. The next day, September 19, 2014, Mr. Court informed Mr. Kenny that Tandem had withdrawn its job offer because Mr. Kenny could not start working for it for two weeks. According to Mr. Kenny, this was the first time anyone told him the job offer was conditioned on his immediate availability.

Mr. Kenny filed a lawsuit against both Onward and Tandem. He asserted numerous claims, including breach of contract, negligent misrepresentation, promissory estoppel and violations of the New Jersey Private Employment Agency Act and the New Jersey Consumer Fraud Act. The companies filed a motion asking the court to dismiss the case.

In Kenny v. Onward Search, the United States District Court for the District of New Jersey refused to dismiss most of Mr. Kenny’s claims. For example, it did not dismiss his breach of contract claim, finding Mr. Kenny’s allegations could support a claim of breach of an oral contract. Although the companies argued they could fire an employee at-will at any time and for virtually any reason, the Court recognized this did not prohibit Mr. Kenny’s claim since his contract was for a specified period, namely 8 to 12 months.

Similarly, the Court declined to dismiss Mr. Kenny’s negligent misrepresentation claim. It explained that Mr. Kenny alleged that Onboard and Tandem made an incorrect statement that he could start working two weeks after he gave notice to his former employer, he relied on that incorrect statement by resigning from his job, and he lost income as a result. It also did not dismiss his promissory estoppel claim, finding he alleged that he reasonably relied on Onboard and Tandem’s clear and definite promise that he would be paid $85 per hour for at least 8 months, and did so to his detriment by resigning from his job.

However, the Court dismissed Mr. Kenny’s claim under the New Jersey Private Employment Agency Act Claim, finding there is no right for individuals to bring claims under it. Likewise, it dismissed his claim under the New Jersey Consumer Fraud Act Claim because he is not a “consumer” of Onboard since he did not seek to purchase goods or services from it.

Published on:

A recent ruling by New Jersey’s Appellate Division makes it clear that, in some circumstances, an employee can enforce an employment contract even if the individual who entered into it on behalf of the company did not have the authority to do so.

The case was filed by four individuals, Arkadiusz Lukaszewski, Dariusz Gocal, Tadeusz Ogrodnik, and Ryszard Klysinski.  They each worked for Jasticon, Inc. as bricklayers.  They claim another employee, Piotr Zablocki, promised them “they would be given long-term employment” with Jasticon for “at least 18 months.”  They also claim Mr. Zablocki assured them they would work on “big projects” in New Jersey and that they “would never run out of work.”

Nonetheless, the company fired them after less than a year.  They subsequently filed a lawsuit in which they asserted numerous claims, including breach of an 18-month employment contract.

Construction workers reach handshake employment agreementJasticon filed a motion for summary judgment, asking the lower court to dismiss the breach of contract claim.  The court granted the motion.  It concluded that although Mr. Zablocki had the authority to hire employees, he did not have the authority to guarantee them a job for any particular period. It also found that Mr. Zablocki did not have apparent authority to hire the four employees for 18 months since the company did not take any actions to lead them to believe he had the authority to make such an offer on its behalf.

On appeal, New Jersey’s Appellate Division agreed that there was no evidence Mr. Zablocki had the actual authority to guarantee the employees would have jobs for at least 18 months.  However, it found a question of fact with respect to whether he had apparent authority.

In the context of an employment agreement, apparent authority exists when: (1) the employer’s actions lead a person to reasonably believe a particular employee (or agent) has the authority to act on the employer’s behalf; and (2) the person relies on the employee’s (or agent’s) actions, believing he or she is acting on the employer’s behalf.

In an unpublished opinion, Lukaszewski v. Jasticon, Inc., the Appellate Division found there was enough evidence for a jury to find Jasticon led the four employees to believe Mr. Zablocki had the authority to guarantee them jobs with the company for at least 18 months.  It relied on the fact that Mr. Zablocki was the only person who offered them employment with the company, and they actually worked for and were paid by Jasticon after he did so.  In fact, Jasticon admitted that Mr. Zablocki hired them. It only disputed that he had the authority to guarantee them jobs for 18 months, as opposed to offering them employment at will.

Accordingly, the appellate court reversed the lower court’s ruling that had granted summary judgment to Jasticon.  It concluded there needs to be a trial to determine whether Mr. Zablocki had apparent authority to guarantee the four employees jobs for at least 18 months, and whether Mr. Zablocki actually assured them that they would have jobs for that long.

For additional information, you may want to read my previous article:  The Doctrine of Apparent Authority.

Published on:

A recent New Jersey Appellate Division ruling provides a good example of how dangerous it can be to compete with your current employer.

B&H Securities, Inc. designs, sells and maintains security monitoring systems. In spring 2007, three of its employees, Michael Poisler, Marc Palladino and Duane Pinkney, decided to start a competing business, Advanced Integration Security. At the time, Mr. Pinkney was B&H’s IT manager, Mr. Poisler was its sales manager, and Mr. Palladino was one of its salesmen.

A “Confidentiality Clause” in B&H’s employee handbook states that after leaving their job, B&H employees cannot contact the company’s customers. When he was hired by B&H, Mr. Pinkney signed a document agreeing to abide by this clause for 48 months after leaving the company. The company did not require Mr. Palladino or Mr. Poisler to sign any such agreement.

While still employed by B&H, Mr. Pinkney solicited two of B&H’s customers on behalf of Advanced Integration Security. He also altered a five-year agreement between B&H and one of its customers to permit the customer to cancel its contract by giving 30 days’ notice. He then resigned from B&H to work for Advanced.

On July 1, 2007, Mr. Palladino resigned from B&H and began working for Advanced. Meanwhile, Mr. Poisler continued to work for B&H, and provided inside information to Mr. Pinkney while simultaneously working for Advanced on weekends and evenings.

Employee stealing company's confidential informationIn August 2007, B&H sued Advanced, Mr. Pinkney and Mr. Palladino. The company alleged the three misappropriated the company’s trade secrets and confidential information, breached the confidentiality provision in their employment contracts, interfered with B&H’s contractual relations with its customers, engaged in unfair competition, and breached the implied covenant of good faith and fair dealing in their employment agreements. B&H subsequently added Mr. Poisler as a defendant, and added a claim under New Jersey’s Computer Related Offenses Act (“CROA”).

Following a bench trial, the court ruled in favor of B&H on all of its claims. It awarded $737,087 in compensatory damages, plus $100,000 in punitive damages against each of the defendants other than Mr. Poisler. The court subsequently awarded an additional $825,085 in attorney’s fees under the CROA.

Mr. Poisler appealed. In B & H Securities, Inc. v. Pinkney, the Appellate Division upheld the lower court’s finding that he violated the covenant of good faith and fair dealing “by participating in the misappropriation of B&H’s confidential information” while he was working for B&H. The court did so even though Mr. Poisler did not have a written employment contract with B&H, finding that since he was an employee of B&H he necessarily had an agreement with the company.

The Appellate Division also found sufficient evidence to establish that Mr. Poisler violated CROA. Among other things, it found evidence supporting the trial court’s finding that he assisted Mr. Pinkney’s unauthorized access to data on the company’s computer system. The Court noted that although B&H authorized Mr. Pinkney to access its computer system, he impermissibly transferred that data to his own computer in violation of CROA.

The Appellate Division also affirmed the lower court’s finding that Mr. Poisler breached his duty of loyalty to B&H even though he did not sign the company’s Confidentiality Clause since every employee has a duty of loyalty to his or her employer.

However, the appellate court reversed the award of $737,087 in compensatory damages against Mr. Poisler. It explained that the trial court calculated this figure based on Mr. Pinkney’s written agreement not to use the company’s confidential information for 48 months. However, Mr. Poisler did not sign a similar agreement, and only worked for Advanced for approximately 20 months. Accordingly, the Appellate Division asked the trial court to reconsider these damages, and to explain the basis for its new ruling.

Published on:

A recent case, Kaplan v. Greenpoint Global, provides a good example of several claims an employee might be able to bring if an employer fails to live up to the promises it made.

On December 1, 2010, Leslie Kaplan began working for Greenpoint Global as its Director of Legal Services. Greenpoint is a company that outsources legal services to businesses, law firms and individuals.

Before accepting the job, Ms. Kaplan told Greenpoint’s Chief Executive Officer, Jacklyn Karceski, that her most recent salary exceeded $200,000 and she was seeking similar compensation from Greenpoint. Ms. Karceski indicated that her goal was realistic. Ms. Kaplan also told the company’s founder, Sanjay Sharma, that her salary needed to “start with a two.” Mr. Sharma responded “No problem.” According to Ms. Kaplan, she relied on these assurances by Greenpoint and declined pursuing an opportunity to return to her former job. Despite its promises, Greenpoint actually paid Ms. Kaplan at the rate of $80,000 per year.

In her lawsuit, Ms. Kaplan asserted numerous claims relating to the fact that Greenpoint did not pay her $200,000 per year. She also brought a wrongful termination claim in which she claims Greenpoint fired her in retaliation for complaining about numerous misrepresentations the company made to convince her to accept its job offer. For example, she alleges: (1) the address the company claimed was its New York headquarters actually is Mr. Sharma’s home address; (2) Ms. Karceski grossly overstated the number of lawyers and other employees Greenpoint had working for it; (3) Mr. Sharma told her a specific client was doing a million dollars of business with Greenwood when it actually had done only $36,000 of business; and (4) Mr. Sharma told her Greenpoint was comparable to a competitor whose annual revenues exceeded $25 million, when Greenpoint actually lost at least half a million dollars in 2010.

Greenpoint eventually filed a motion for summary judgment, asking the judge to dismiss each of her claims. However, the court upheld all of Ms. Kaplan’s claims.

Employer makes false promise to employeeAlthough Ms. Kaplan did not have a written employment contract, the court upheld her breach of contract claim. It found enough evidence for a jury to conclude that Greenwood had entered into an oral employment contract to pay her $200,000 per year. Likewise, it upheld her claim under the New Jersey Wage Payment Law, finding sufficient support for her claim that the company violated the law by failing to pay her full agreed-upon wages.

The court also permitted Ms. Kaplan to proceed with her promissory estoppel claim, finding evidence that the company made a “clear and definite promise” to pay her at least $200,000 per year, a promise it expected her to rely upon; and Ms. Kaplan relied on that promise to her detriment by not pursuing an opportunity to return to her previous job. Notably, the court reached this conclusion even though Ms. Kaplan’s former employer never actually offered her that job.

Additionally, the court refused to dismiss Ms. Kaplan’s claim for negligent misrepresentation. It found enough evidence to demonstrate she relied on misinformation the company provided to her about its financial status and about her own salary when she accepted the job offer.

The judge also allowed Ms. Kaplan an opportunity to prove her quantum meruit claim. In that claim, Ms. Kaplan is trying to require Greepoint to pay her the reasonable value of the services she provided to it. The court concluded that a jury needs to determine whether the reasonable value of Ms. Kaplan’s services were $80,000 per year, $200,000 per year, or some other amount.

Finally, the court permitted Ms. Kaplan to continue with her wrongful termination claim. It ruled that a reasonable jury could find Greenpoint fired her because she objected to the misrepresentations it had made to her. It further concluded that Ms. Kaplan could reasonably believe those misrepresentations constituted fraud and violate the New Jersey Consumer Fraud Act.

Published on:

Earlier this month, in Temple-Inland, Inc. v. Kenneth Dee, New Jersey’s Appellate Division ruled that a company could be liable for failing to inform an employee about a change to its commission plan until after the change went into effect. The case also addresses numerous other issues in a complex dispute between the company and its former employee.

Sales people working on electronic tabletKenneth Dee worked as a salesperson for Temple-Inland, Inc. for fourteen years. Temple-Inland paid Mr. Dee a base salary plus commissions. The company eventually changed how it was calculating commissions. It apparently substantially reduced Mr. Dee’s commissions in comparison to his peers because he had been receiving extraordinarily high commissions from his best customer, Church & Dwight.

Mr. Dee complained about his reduced commissions. According to Mr. Dee, the Regional Vice President of Sales and Marketing indicated the company would address this by performing an audit. Mr. Dee further claims that although the audit revealed he was being underpaid, the company did nothing to remedy the situation.

On August 27, 2010, Mr. Dee accepted a job offer with one of Temple-Inland’s competitors, Packaging Company of America (“PCA”). Before he resigned from Temple-Inland, he downloaded price lists and account information for his accounts from a password-protected computer.

While he was still working Temple-Inland, Mr. Dee met with Church & Dwight to solicit its business for PCA. On his last day of work for Temple-Inland, he received an email from Church & Dwight seeking a Request For Proposal (“RFP”), but did not mention it to anyone at Temple-Inland. Temple-Inland ultimately learned about the RFP and submitted a bid.

Temple-Inland filed a lawsuit against Mr. Dee, claiming he breached his fiduciary duty to it and misappropriated its confidential and proprietary information. Mr. Dee filed various counterclaims seeking additional commissions.

The trial court granted an injunction prohibiting Mr. Dee from using the company’s confidential information in the future, but dismissed the rest of Temple-Inland’s case because it did not prove it suffered any actual injury or damages. It also dismissed all of Mr. Dee’s counterclaims. Both parties appealed.

In an unpublished opinion, the Appellate Division concluded the company did not breach Mr. Dee’s employment contract since its commission policy did not require it to adjust Mr. Dee’s commissions after an audit. However, it found evidence to support an equitable estoppel claim. Equitable estoppel is when someone intentionally misleads you into doing something based on an understanding you will receive something in return, when it would be unfair and unjust for the other party not to fulfill those expectations. The court concluded Temple-Inland could have misled Mr. Dee to believe his commissions would be adjusted when it told him it would address the discrepancies to his commissions through its audit. It also found Temple-Inland may have violated the New Jersey Wage Payment Act by failing to tell Mr. Dee in advance that it was reducing his commissions on the Church & Dwight account.

With respect to Temple-Inland’s claim that Mr. Dee violated his duty of loyalty, the court explained that an employee can accept a job with a competitor while he is still employed by his current employer. However, the duty of loyalty prohibits a current employee from acting contrary to his employer’s interest, competing with his employer, or assisting its competitors. The Court agreed with the lower court that although Mr. Dee violated his duty of loyalty, there was no evidence to support a damages claim against him.

Likewise, the court affirmed the dismissal of Temple-Inland’s duty of loyalty claim against Mr. Dee. It found evidence that Mr. Dee intentionally withheld information regarding Dwight & Church’s RFP from his employer, in violation of his duty to it. However, it concluded there was no evidence this caused Temple-Inland any harm.

Published on:

New Jersey’s Appellate Division recently ruled that employers can enforce agreements that shorten the statute of limitations for employees to bring claims against them.

Employment ApplicationSergio Rodriguez applied for a job as a helper at Raymour & Flanigan in August 2007. Mr. Rodriguez was born in Argentina and speaks limited English. He filled out a job application, which was in English, with help from a friend. The application included a provision that if Mr. Rodriguez was hired he would have only six months to file a lawsuit after any employment-related claim arose. It also expressly waived any statute of limitations to the contrary, and his right to a jury trial. Mr. Rodriguez signed and submitted the employment application. Raymour & Flanigan hired him the following month.

In 2010 Mr. Rodriguez injured his knee at work. He took a medical leave, had surgery and returned to work on light-duty in September 2010. By September 28, 2010 he was working without restrictions.

Three days later, Raymour & Flanigan announced a reduction in force, and terminated Mr. Rodriguez , along with 101 other employees. Nine months later, Mr. Rodriguez filed a lawsuit claiming Raymour & Flanigan fired him because he had a disability, in violation of the New Jersey Law Against Discrimination (“LAD”), and because he filed a workers’ compensation claim, in violation of the New Jersey Workers’ Compensation Act. Normally, each of those claims has a two-year statute of limitations.

Mr. Rodriguez argued the provision shortening the statute of limitations was unconscionable and unenforceable. The Court found Mr. Rodriguez’s job application was a “contract of adhesion,” meaning it was something he could not have been expected to try to negotiate or change. But it found the employment contract was not so over-reaching or unfair that no reasonable person who understood it would have voluntarily agreed to it. It relied on factors including that (1) the relevant language was in bold print and capital letters in a two-page contract, not buried in fine print in a lengthy document; (2) the provision was relatively clearly and simple; and (3) Mr. Rodriguez was able to take the agreement home and read it at his leisure rather than being pressured to sign it on the spot.

The court explained that an agreement to shorten a statute of limitations is enforceable as long as the agreed-upon deadline is reasonable and does not violate public policy. It found both of those conditions were met here, particularly since employees who want to bring LAD claim through the New Jersey Division on Civil Rights (DCR) have to do so within a similar 180-day deadline.

The opinion in Rodriguez v. Raymours Furniture Co., Inc. is published, meaning it is a binding legal precedent. Unless and until it is overturned, more employers are likely to require their employees to agree to similar limits to the statute of limitations. As a result, more employees are likely to inadvertently forfeit their right to sue for discrimination or retaliation because they did not know or remember what they signed. This could force employment lawyers to file lawsuit rather than attempt to negotiate first, out of fear their clients might have agreed to a shorter deadline to assert their legal claims.
There are many important lessons of the Rodriguez case. For example, going forward it is even more important that you:

  1. Carefully read the language of any job application or employment contract, and make sure you understand and agree with them before you sign them;
  2. Save copies of any job applications and employment agreements you sign so can look back at them and potentially provide them to an employment lawyer in the future; and
  3. Contact an employment lawyer as soon you believe you were fired unlawfully or have another claim against your employer.
Published on:

In an important employment law decision, on June 8, 2011, New Jersey’s Appellate Division ruled that an employee can enforce her employer’s promise that she would have a job when she returned from her maternity leave. The Court reached that conclusion even though the company, Telcordia Technologies, Inc., included a clear disclaimer in both its Code of Business Ethics and the employee’s job application which stated that she is an employee-at-will who can be fired “at any time, with or without grounds, just cause or reason and without giving prior notice.”

In Lapidoth v. Telcordia Technologies, Inc., employee Sara Lapidoth asked her employer for a six-month maternity leave from her position as a manager on a product called ARIS, for the birth of her tenth child. The letter Telcordia sent her granting her leave also guaranteed that the company would reinstate her to the same job or a comparable one if she returned to work within 12 months. Ms. Lapidoth later asked Telcordia to extend her leave by 6 months, for a total of a one-year maternity leave. Telcordia granted her request through another letter that promised to reinstate her at the end of her leave.

Pregnancy Discrimination.jpgHowever, before Ms. Lapidoth was ready to return from her maternity leave, Telcordia decided to eliminate one of its two ARIS manager positions. The company decided to lay off Ms. Lapidoth because the only other ARIS manager had slightly better performance ratings. Since the company did not have any appropriate job openings, it fired Ms. Lapidoth.

The Appellate Division ruled that Ms. Lapidoth’s maternity leave was not protected by the Family and Medical Leave Act (FMLA) or the New Jersey Family Leave Act (NJFLA) because she took off more than 12 weeks. Both the FMLA and the NJFLA require employers to give qualified employees up to 12 weeks off for the birth of a child.

However, the Court ruled that the letters Telcordia sent to Ms. Lapidoth could be enforceable employment contracts that guaranteed her a job when she was ready to return from her maternity leave. It found that, even though the company’s Code of Business Ethics and Ms. Lapidoth’s employment application said she was an employee-at-will, and indicated that nothing else could create any contractual rights between her and the company, the letters granting her maternity leave seemed to contradict those statements. The Court also stated that, although the letters said the company did not have to reinstate Ms. Lapidoth if it had to eliminate her job, that was not necessarily a defense because the company decided it had to eliminate one of two ARIS manager positions, but not necessarily Ms. Lapidoth’s position. The Court also noted that Telcordia reinstated Ms. Lapidoth after each of her nine previous maternity leaves. Based on the circumstances, the Appellate Division concluded that a jury could find the letters guaranteeing Ms. Ladipodth a job at the end of her maternity leave created an enforceable employment contract.

Continue reading

Published on:

Many companies require employees to sign arbitration agreements as a condition of getting hired or keeping their jobs. Arbitration agreements are often included in employment contracts, but they also can be in separate agreements. Arbitration is when a case is decided by one or more professional arbitrators, rather than by a judge and jury. Arbitration is often referred to as “binding arbitration” because there is a very limited right to appeal from an arbitrator’s decision, meaning that normally the arbitrator’s decision is final. While arbitration certainly is not the end of the world, for a variety of reasons most employment lawyers in New Jersey and New York who represent employees (myself included) would much prefer a jury trial. As a result, it is important to understand whether your arbitration agreement is enforceable.

To determine whether an arbitration agreement is enforceable under New Jersey law, the first question is whether you entered into the agreement “knowingly” and “voluntarily.” Unfortunately, those terms are not necessarily interpreted the way you might think. Rather, it boils down to whether you understood or should have understood that you were waiving your right to a jury trial. It does not necessarily mean you actually read or understood the rights you were signing away.

Sign Contract.jpg There are many other factors judges consider when determining whether an arbitration agreement is enforceable. Usually, the most important factor is how clearly the agreement states the employee is giving up his right to a jury trial. But other factors can include the employee’s level of education and business experience, how much time the employee had to review the arbitration agreement before he signed it, how much input (if any) the employee had in negotiating the terms of the arbitration agreement, whether the employee was represented by a lawyer before he signed the arbitration agreement, and whether the employee received something extra in exchange for signing the arbitration agreement.

Even if an arbitration agreement appears to be enforceable, an employee might have a legal defense that would prevent the employer from enforcing it and sending the case to arbitration. For example, an arbitration agreement is not enforceable if the employee can prove it was the result of fraud, or if the employer waived its right to enforce the agreement. Another more complicated defense to an arbitration agreement is when the agreement is what lawyers call an “unconscionable contract of adhesion,” which basically means it is extremely favorable to one party (the employer), the other party (the employee) had little or no ability to negotiate its terms, and it would be extremely unfair for a court to enforce it.

Continue reading

Published on:

The New Jersey Law Against Discrimination (LAD) prohibits employers from discriminating against employees on the basis of age. Among other things, it prohibits employers from firing, refusing to hire or requiring an employee to retire because of their age.

However, the LAD expressly does not prohibit employers from refusing to hire or promote a person over 70 years old. As a result, someone who is not hired or promoted because they are over seventy years old does not have an age discrimination claim under the LAD.

On April 23, 2009, in Nini v. Mercer County Community College, the New Jersey Appellate Division ruled that this over-seventy exception does not apply to a company’s failure to renew an employment contract. In other words, a company violates the LAD if it decides not to renew an employment contract of an individual who is over 70 years old based on the employee’s age.

The case involves Rose Nini, who worked as an executive assistant for Mercer County Community College (MCCC) from 1979 to June 30, 2005. She worked pursuant to a series of renewable employment contracts. In June 2005, MCCC chose not to renew her contract for an additional three years term. At the time, Ms. Nini was 73 years old.

According to Ms. Nini, she had substantial evidence of age discrimination. For example, during the nearly 25 years before MCCC told her it might not renew her contract, she never received a poor performance review. Her supervisor then made it clear that he thought she should not be working at her age, that other employees her age were considering retiring, and that he thought she should retire too. Several MCCC department heads also discussed “age and incompetence,” “dead wood,” and made jokes about getting rid of the “oldest employees.” Ms. Nini also heard that MCCC’s Human Relations Director said the college needed to “get rid of the old-timers” and “bring in new blood.”

In analyzing the LAD’s exception regarding the right not to hire or promote an employee over seventy years old, the Appellate Division stated that the nonrenewal of a contract is the equivalent of a termination, rather than a refusal to hire. Previous New Jersey cases have recognized there is little or no difference between failing to extend or renew an employment contract and a decision to fire an employee. Thus, the Court ruled that the over-seventy exception does not apply to a decision not to renew an employment contract, meaning it violates the LAD if an employer chooses not to renew the contract of an employee because she is over 70 years old. Accordingly, the Court sent the case back to the lower Court so Ms. Nini could further pursue her age discrimination case.

Published on:

In the United States, the vast majority of employees are employees at-will, meaning they can be fired for almost any reason, as long as the decision is not the result of unlawful discrimination, retaliation, a breach of an employment contract, or some other form of wrongful discharge. However, certain employees of public schools eventually gain much greater protection — the protection of tenure laws.

When most people think about tenure laws, they think of school teachers. In many states, including both New York and New Jersey, teachers attain tenure after they teach in the public school system for more than three years.

But at least under New Jersey law, in addition to teachers, secretarial and clerical employees working for public schools are eligible to attain tenure. The applicable tenure statute states that “[a]ny person holding any secretarial or clerical position or employment under a board of education of any school district” shall attain tenure after “a period of employment of three consecutive calendar years.”

Once an employee attains tenure, the board of education cannot fire him or her unless he or she engages in “neglect, misbehavior or other offense.” Moreover, a tenured employee can only be fired for “inefficiency, incapacity, unbecoming conduct, or other just cause, and then only after a hearing . . . after a written charge or charges.”

My law firm currently represents an individual, Bernard Sharkey, who was fired by the Washington Township Board of Education after he worked for it for more than three years. Mr. Sharkey sought to enforce his rights under the tenure laws.

Although Mr. Sharkey’s official job title was “financial officer,” he basically functioned as a bookkeeper. After an administrative hearing, the New Jersey Office of Administrative Law (OAL) issued an opinion concluding Mr. Sharkey’s job was tenure eligible because his job was clerical in nature. In doing so, the OAL adopted the definition of clerical from Webster’s Dictionary: “one employed to keep records or accounts or to perform general office work.”

The New Jersey Department of Education subsequently affirmed the OAL’s finding that Mr. Sharkey’s position was tenure eligible, but that he had attained tenure, finding he was, in fact, employed for more than three years. Accordingly, the Commissioner of Education ordered Washington Township to reinstate him.

In reaching its conclusion, the OAL relied on a previous decision of the New Jersey Appellate Division, Barnes v. Board of Education of Jersey City, 85 N.J. Super. 42, 45 (App. Div. 1964). Barnes recognizes the term “clerical position,” as used in the tenure statute, must be given a broad interpretation because tenure statutes are intended to secure better public service by providing job security to covered public employees.

Several other administrative cases which follow Barnes use similar broad definitions of the term “clerical position.” For example, one such decision recognizes that two appropriate definitions are “an official responsible for correspondence, records, and accounts and vested with specified powers or authority” and “one employed to keep records or accounts or to perform general office work.” Another administrative opinion relied on two other similar dictionary definitions of the term clerk: “a person employed, as in an office, to keep records, accounts, files, handle correspondence, or the like,” and “a person who works in an office performing such tasks as keeping records and files.” In Sharkey, the OAL adopted the second of those two definitions.

The protection the tenure law provides to clerical employees in public schools is very important. It provides job security to tenured employees, which is a particularly valuable employment law right at any time, but even more so in our current economic climate. In doing so, it encourages well qualified individuals who might otherwise seek higher paying jobs in the private sector to work for the public schools.

Washington Township has appealed the Commissioner of Education’s decision in Sharkey.

Contact Information