Wrongful Discharge / Wrongful Termination

New Reinstatement Rights for New Jersey Workers on Disability or Family Leave

June 30, 2026 | by Jonathan I. Nirenberg

New Jersey is about to provide important new protections to workers who need time away from their jobs due to a family or disability leave. Starting on July 17, 2026, an amendment to the state

bigstock-Health-Insurance-Claim-Form-192585625

temporary disability insurance and family leave insurance laws adds a new entitlement to reinstatement for employees who receive either of those benefits. In plain terms, the laws that pay part of your wages while you recover from a serious illness, welcome a new child, or care for a sick family member will now also address whether your employer is required to give you your job back.

If you collected these benefits and were not returned to your position, a New Jersey employment lawyer can help you understand whether this change applies to your situation. The attorneys at Rabner Baumgart Ben-Asher & Nirenberg, P.C. represent employees throughout New Jersey and follow employment law developments like this one closely.

How New Jersey Temporary Disability and Family Leave Insurance Work

New Jersey runs two state insurance programs that replace part of a worker’s pay during certain absences. Temporary disability insurance, often called TDI (and sometimes referred to as short term disability, or STD), applies when you cannot work because of your own illness, injury, pregnancy, or recovery from childbirth that is not related to your job. Family leave insurance, often called FLI, applies when you take time off to bond with a new child or to care for a family member with a serious health condition. Most employees in the state contribute to these programs through payroll deductions, and most employees can collect benefits when a qualifying need arises. Pregnancy and recovery from childbirth, which fall under temporary disability, often overlap with the workplace protections explained on our pregnancy discrimination page.

Until now, these laws did one thing. They replaced a portion of lost wages, but they said nothing about your job. An employer could pay into the system, watch an employee collect benefits, and still decline to take that employee back at the end of the leave without violating either of these laws. The right to return to work, and the right to be placed in the same or an equivalent position, came from other laws.

What Other Laws Required Reinstatement Before This Change

Before this amendment, the right to be reinstated to your job after a family or disability leave mainly came from two sources: the federal Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA). Both of those laws guarantee job-protected leave, but both limit who qualifies. However, neither the FMLA nor the NJFLA apply to smaller employers, and both have requirements with respect to how long you have worked for your employer and how many hours you have worked for your employer in the past year. You can read more on our family and medical leave page. In addition, even for covered employees, both of those laws provide only a maximum of 12 weeks off from work.

The practical result was a coverage gap. A worker could be fully eligible for state disability or family leave benefits, collect them for weeks, and still fall outside the reinstatement protections of either statute. That worker received income during the absence, but had no guaranteed job to which to return. Lower-wage employees, part-time employees, employees working for smaller businesses, and employees who needed more than 12 weeks off were the most exposed. A worker who was let go rather than reinstated often had to rely on a wrongful termination theory, which you can read about on our wrongful termination page.

Jonathan I. Nirenberg Quoted in New Jersey Business Magazine

August 30, 2017 | by Jonathan I. Nirenberg

I was quoted in New Jersey Business Magazine’s September 2017 edition in an article about mass layoffs. You can read the article, Handling Business Closings and Layoffs, online.

In the article, I discuss the fact that employers often use mass layoffs to hide discrimination or retaliation. Specifically, it is common for companies to wait until they are having a reduction in force or layoff before they fire individuals who may have legal claims. They do this in an effort to disguise the real reasons they chose to terminate the employment of those workers.

But while including an employee in a reduction in force might disguise the company’s real motive for firing them, it remains unlawful for an employer to select an employee due to his or her age, gender, race, disability, pregnancy, or another unlawful factor.

Supreme Court Clarifies Deadline to File Constructive Discharge Claims

June 8, 2016 | by Jonathan I. Nirenberg

The United States Supreme Court recently ruled that in constructive discharge cases the 45-day deadline for federal employees to contact the United States Equal Employment Opportunity Commission (“EEOC”) begins on the day the employee resigned. A constructive discharge occurs when an employee resigns after the “working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.”

Title VII is a federal law that prohibits employers from discriminating based on race, color, religion, sex and national origin. It also prohibits employers from retaliating against employees because they complained about one of those forms of discrimination.

One of the requirements for a federal employee to bring a claim under Title VII is that he has to contact an EEOC counselor within 45 days after the “matter alleged to be discriminatory.” Notably, for employees who work for private companies or the state or local government in New York or New Jersey there is a longer 300 day deadline to file a Title VII claims with the EEOC. Likewise, there is a 2 year statute of limitations to file claims under the New Jersey Law Against Discrimination and a three year statute of limitation under the New York State Human Rights Law.

Rabner Allcorn Settles Employment Case for $2.25 Million

January 19, 2016 | by Jonathan I. Nirenberg

I am pleased to report that I recently settled an employment law case against the Borough of Bogota, New Jersey for $2.25 million on behalf of my client, Police Officer Regina Tasca. I handled the case with my co-counsel, Catherine M. Elston, Esq.

Our client was the first and only female police officer in the history of the Bogota Police Department. She began working for Bogota in January 2001. Until April 2011 she had a virtually unblemished record.

In May 2011, Bogota suspended her, claiming she was unfit for duty based on an unspecified psychological disability. Bogota subsequently brought disciplinary charges against her, claiming she was not fit for duty and had engaged in misconduct during two incidents in April 2011. Following a 12 day internal disciplinary hearing, the Borough Council voted to terminate her employment, effective October 18, 2012.

Calculating Value of Wrongful Termination Cases at Trial

April 2, 2015 | by Jonathan I. Nirenberg

There is no one way to predict the precise value of an employment law case before a trial. Among other things, juries do not necessarily use any particular formula, and verdicts often represent compromises. However, it is possible to estimate what you might receive if you win your case at a trial.

Economic Damages

To estimate your economic damages in a wrongful termination case, you need to calculate your total annual compensation (salary, bonus, commissions and benefits) from the job you lost. Unless you use an expert, this is likely to require you to estimate the value of some of your lost benefits, and to make assumptions about future raises, discretionary bonuses and commissions.

New Jersey Court Clarifies How to Evaluate Constructive Discharge Claims

November 26, 2013 | by Jonathan I. Nirenberg

A constructive discharge occurs when an employer makes an employee’s working conditions so intolerable that she is forced to resign. This type of forced resignation is legally actionable if it caused by an illegal factor, such as unlawful discrimination or retaliation. Last week, New Jersey’s Appellate Division explained that when deciding if an employee has enough evidence to support this type of claim, a court has to view the evidence collectively rather than looking at each piece of evidence separately.

The woman who filed the case, Cheryl Smith, worked for New Jersey’s Department of Health and Senior Services (DHSS) as a Public Health Consultant II. Ms. Smith took on additional job duties, hoping she eventually would receive a promotion and raise. When it became clear that was not going to happen, Ms. Smith asked the New Jersey Department of Personnel (DOP) to determine if she either was entitled to a promotion, or was performing job duties above her salary grade.

Constructive Discharge Claims in New Jersey.jpg The DOP concluded Ms. Smith was performing work outside of her job title and should be promoted to an Education Program Specialist II with a corresponding raise. However, it found she was ineligible for the promotion because she did not have the required educational background. Accordingly, Ms. Smith asked DHSS to take away her extra job duties. When the DHSS refused, Ms. Smith went back to the DOP, which instructed her employer to remove certain job duties.

New Jersey Appellate Division Erroneously Reverses Verdict in Wrongful Termination Case

August 8, 2013 | by Jonathan I. Nirenberg

Last week, I discussed Shipe v. Saker Shoprites, Inc. a gender discrimination case which recognizes Employers Can Be Held Liable For Discrimination Even if Decision-Maker Has No Bias. Unfortunately, the Appellate Division found another basis to reverse the jury’s verdict and take away Ms. Shipe’s nearly $900,000 judgment. However, it appears the Appellate Division made two serious errors that led to this unfortunate result.

When an employee brings a discrimination claim, the court first has to make sure there is enough evidence to support the basic element of a discrimination claim. This is called a “prima facie” case. Specifically, in a wrongful termination case an employee ordinarily has to show he or she (1) belongs to a protected class; (2) was employed by the company; (3) was performing her job before being fired, and (4) the employer sought to replace him or her. Alternatively, an employee can meet the fourth element by showing other circumstances that suggest the decision to fire the employee was discriminatory.

Usually, it is up to a judge, rather than a jury, to decide whether an employee has established a prima facie case. However, when there is a dispute about one of the elements it is sometimes necessary for a jury to decide it.

In the Shipe case it was disputed whether the employer sought to replace Ms. Shipe after it fired her. The Appellate Division concluded that the trial judge should have asked the jury whether Ms. Shipe either was replaced by a man, or fired under other circumstances that give rise to an inference of discrimination. In fact, it reversed the jury’s verdict and ordered a new trial because the jury was not asked this question.

I find this ruling perplexing. It is unquestionable the jury found Saker fired Ms. Shipe because of her gender. As I discussed last week, the Appellate Division found that conclusion was supported by sufficient evidence to withstand an appeal. But if the jury found Saker fired Ms. Shipe fired because she is a woman, then the jury had to have found she was fired under circumstances giving rise to an inference of discrimination. If that is true, then why would it be necessary to have a new trial to ask the jury to answer that question again?

The Appellate Division’s ruling appears to be erroneous for a second reason. Specifically, in Zive v. Stanley Roberts Inc., a 2003 case, the New Jersey Supreme Court ruled that when analyzing the prima facie case only the plaintiff’s evidence should be considered. The Appellate Division in Shipe recognized that Ms. Shipe presented evidence that she was replaced by a man. As a result, under Zive the court should have found that Ms. Shipe met the fourth element of her prima facie case. Instead, it reversed the jury verdict and ordered a new trial.

Fortunately, the Shipe decision is unpublished, meaning it is not a binding precedent.

Court Upholds Newark Police Officer’s $700,000 Verdict in Retaliation Case

January 21, 2013 | by Jonathan I. Nirenberg

The Third Circuit Court of Appeals recently affirmed a Newark police officer’s $700,000 verdict in a wrongful termination case. The case was brought by Jose Montalvo, who was a police officer for the City of Newark from 1990 to 2006. On April 22, 2005, he filed an affirmative action complaint, claiming the police department started harassing him after he fired his weapon at a citizen in 2000. For example, despite Mr. Montalvo’s repeated requests, the department refused to return his fire arm, and instead kept him assigned to cell block duty for longer than it had assigned anyone else to it. According to testimony, Newark assigns police officers to the cell block as a form of punishment.

At the trial, Mr. Montalvo presented evidence that Newark began further harassing him after he filed his affirmative action complaint. For instance, the police department suspended him for 21 days relating to the shooting, even though it occurred five years earlier. Ultimately, Newark fired Mr. Montalvo for making false statements during a police department investigation and disclosing confidential information about the investigation. However, Mr. Montalvo presented evidence at the trial showing the department gave less severe discipline to other police officers who were brought up on similar disciplinary charges.

At the trial, the jury found Newark fired Mr. Montalvo in retaliation for filing his affirmative action complaint, in violation of the New Jersey Law Against Discrimination (LAD), and awarded him $700,000. The LAD prohibits employers from retaliating against an employee because he complained about workplace discrimination.

Newark appealed, arguing there was not enough evidence to connect its decision to fire Mr. Montalvo to his affirmative action complaint. However, the Third Circuit rejected this argument. In Montalvo v. City of Newark, it ruled the jury’s find that Newark fired Mr. Montalvo in retaliation for his affirmative action complaint was supported by the pattern of Newark antagonizing him after he filed it.

On appeal, Newark also asked the court to overturn the verdict on the basis that the Police Chief who made the decision to fire Mr. Montalvo testified that he did not even know about Mr. Montalvo’s affirmative action complaint. However, the court concluded that the jury was not required to believe the Police Chief’s testimony. It also explained that, even if the Chief did not know about Mr. Montalvo’s affirmative action complaint, his decision to fire Mr. Montalvo still could have been retaliatory since there was evidence he relied on a “tainted” retaliatory performance evaluation prepared by another employee who did know about his complaint. Accordingly, the court affirmed Mr. Montalvo’s $700,000 verdict.

New York’s Highest Court Refuses to Expand Exception to Employment At-Will

December 28, 2012 | by Jonathan I. Nirenberg

Earlier this year, New York’s Court of Appeals dismissed a wrongful termination lawsuit brought by a Compliance Officer who objected about an unethical stock transaction by the company’s President and Chief Executive Officer. In doing so, New York’s highest court refused to extend an exception to the employment at-will doctrine. Employment at-will is the general rule that a company can fire an employee for any reason, or even for no reason at all. Although there are many exceptions to employment at-will, such as anti-discrimination laws, New York does not have a whistleblower law that would have protected this employee.

Specifically, in Sullivan v. William F. Harnisch, Joseph Sullivan was a partner in two related hedge fund companies, Peconic Partners LLC and Peconic Asset Managers LLC. He also held several other job titles, including Executive Vice President, Chief Operating Officer and Chief Compliance Officer. Mr. Sullivan objected about apparent improper and unethical stock sales by the company’s Chief Executive Officer and President, William Harnisch. Peconic fired Mr. Sullivan within days after he made this complaint. He then sued, claiming Peconic’s decision to fire him was retaliation in violation of the company’s Code of Ethics.

In an earlier case, Murphy v. American Home Prods. Corp., the New York Court of Appeals found an exception to employment at-will for a lawyer who objected about accounting improprieties at his law firm. The Court allowed the attorney to proceed with his wrongful discharge case. It found there is an implied agreement between attorneys and their law firms that they will each follow professional ethical standards, and that American home Products violated that agreement when it fired Mr. Murphy.

However, in Sullivan the Court of Appeals refused to expand that rule to protect Mr. Sullivan. It indicated that although Murphy is not necessarily limited to the relationship between lawyers and law firms, there needs to be a uniquely close connection between the employment relationship and an ethical obligation that makes the two “incapable of separation.” It found no such relationship between a Compliance Officer and the hedge fund for which he works. It also found there is nothing express or implied in Peconic’s Code of Conduct that prohibits the company from firing an employee for reporting an unethical stock transaction. Accordingly, it found Mr. Sullivan did not have a legal claim, and dismissed his case

Court Upholds Employee’s Retaliatory Termination Claim Based on Supervisor’s Unfriendliness

July 16, 2012 | by Jonathan I. Nirenberg

In a noteworthy unpublished employment law decision, earlier this month New Jersey’s Appellate Division upheld a jury award to an employee on a retaliation claim where the primary evidence of retaliation was the fact that the employee’s supervisors were unfriendly to him after he complained about discrimination.

Anthony Onuoha, who is African American, worked for Roche Molecular Systems. In 2006, he complained to Roche’s management because he believed the company discriminated against him by giving him unfair performance reviews and raises. The company’s human resources department investigated his claim, but concluded that his performance reviews and salary were fair.

After Mr. Onuoha complained about discrimination, his supervisors became unfriendly toward him. For example, one supervisor stopped speaking to him. Mr. Onuoha also received an even worse performance review in 2007. Further, the company denied Mr. Onuoha’s request to take a two-week vacation after he took a 6-week medical leave, claiming there was too much work.

A few years later, in 2009, Roche chose to include Mr. Onuoha in a reduction-in-force and terminated his employment. He then sued, claiming the company discriminated against him because he is an African American, and fired him in retaliation for his complaint about race discrimination, in violation of the New Jersey Law Against Discrimination (LAD).

After a trial, a jury found that Roche had not discriminated against Mr. Onuoha based on his race. However, it found the company fired Mr. Onuoha in retaliation for the complaint he made about discrimination in 2006. He was awarded $512,000 in economic damages, $250,000 in emotional distress damages, plus $305,653.07 for his attorney’s fees and legal costs, for a total judgment of more than a million dollars.

On appeal, Roche argued it was improper for the jury to find Roche retaliated against Mr. Onuoha because of his complaint about discrimination since the jury found the company did not discriminate against him. In Onuoha v. Roche Molecular Systems, the Appellate Division rejected that argument since an employee does not have to win his discrimination claim to prove his employer fired him in retaliation for complaining about discrimination. Rather, an employee only has to prove he reasonably believed in his discrimination complaint, and the employer retaliated against him because he made the complaint.

The appellate court also found there was enough evidence of retaliation to support the jury’s verdict, despite the fact that there was a two year gap between his discrimination complaint and the company’s decision to fire Mr. Onuoha. It primarily focused on the evidence that Mr. Onuoha’s supervisors became unfriendly toward him after he complained about discrimination. The Court also relied on the fact that, although the company could have considered a broader group of employees for potential layoff, it insisted on firing someone from Mr. Onuoha’s group. Accordingly, the court affirmed the jury’s verdict in favor of Mr. Onuoha.