Can My Business In New Jersey Fire An Employee Because Of His Off-The-Job Conduct?

With certain exceptions, a business in New Jersey may fire or refuse to hire a person because of his or her lawful, off-duty, political or recreational activities.

Specifically, in New Jersey, employers may not refuse to hire or employ any individual and may not discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions or other privileges of employment because that individual does or does not smoke or use other tobacco products, unless the employer has a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee or prospective employee.  N.J.S.A. § 34:6B-1; see N.J.S.A. §§ 34:6B-2 – 34:6B-4.

Further, under New Jersey’s public policy exception to at-will employment, “an employee has a cause of action [in tort or contract or both] for wrongful discharge when the discharge is contrary to a clear mandate of public policy.”  Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (N.J. 1980).  Research reveals only two court decisions addressing the extent to which, under New Jersey law, firing an employee because of his or her lawful, off-duty conduct violates a clear mandate of public policy.  In particular:

• In Slohoda v. United Parcel Service, Inc., 193 N.J. Super. 586 (N.J. App. Div. 1984), later opinion, 297 N.J. Super. 145 (N.J. App. Div. 1986), New Jersey’s Appellate Division, reversing an order granting summary judgment for the defendant employer, remanded the case to the Superior Court for a determination of whether the employer’s termination of the plaintiff employee, a married man, for having sexual relations with a female co-worker who was not his wife “is violative of any right of privacy of the plaintiff and contrary to public policy.”  Slohoda, 193 N.J. Super. at 593-594.  The Slohoda Court observed that “Neither adultery nor fornication are any longer criminal offenses in the State of New Jersey.”  Slohoda, 193 N.J. Super. at 591 n.1.
• In Wiegand v. Motiva Enterprises, LLC, 295 F. Supp.2d 465 (D.N.J. 2003), the U.S. District Court for the District of New Jersey, granting the defendant employer’s motion for summary judgment dismissing the plaintiff employee’s wrongful termination claim, held that the defendant employer did not violate a clear mandate of public policy by terminating the plaintiff, the manager of a gas station convenience store, for owning and operating an online business which “sells racist hate music and items for commercial gain.”  Wiegand, 295 F.Supp.2d at 466-478.

The broad authority of employers in New Jersey to discharge or refuse to hire an individual because of his of her legal, off-the-job, political or recreational activities contrasts with the more limited ability of employers in a significant number of other states to terminate or refuse to hire a person for such reasons.  For example, this author’s November 22, 2010 blog post explains that, with certain exceptions, a business in New York State may neither terminate nor refuse to hire a person because of his or her lawful, off-duty, political or recreational activities.

See here for a summary, prepared by the National Conference of State Legislatures, of statutes, if any, enacted by each of the 50 states and by the District of Columbia restricting employers’ rights to fire or refuse to hire an individual because of his or her off-duty conduct.

If your company needs assistance or guidance on a labor or employment law issue and your company is located in the New Jersey area, call Attorney David S. Rich at (347) 941-0760.