The Do’s & Don’ts of Hiring and Firing

NJ employment law experts weigh in on how businesses can avoid legal issues when recruiting or terminating employees.

By Jennifer Lesser, Contributing Writer On Dec 8, 2020

As many businesses continue to be impacted by the ongoing COVID-19 health crisis, employers have had to either reduce their workforce or revamp their operations and hire additional staff. In addition to federal laws against everything from racial discrimination to inquiring about an applicant’s criminal history, New Jersey also has its own employment legislation that businesses should be aware of in order to prevent a potential or former employee from taking legal recourse. 

“Federal employment laws establish a minimum threshold for employment rights, and it’s not uncommon for states to provide greater protection, but employers need to be mindful of both sets of laws, especially since New Jersey’s can often be more stringent,” says Lisa Gingeleskie, Esq., a labor and employment attorney with Lindabury, McCormick, Estabrook and Cooper, PC in Westfield. 

Hiring Protocols 

Many employers know that, under the state’s discrimination law, they are prohibited from taking any of an applicant’s “protected classes,” which include age, sexual orientation, gender, and race – into consideration when conducting any job-related action. But Gingeleskie notes that there are many nuances to this law, such as recent legislation to include any traits that have historically been associated with race, such as hair texture or type. This new and lesser-known law is known as the Create a Respectful and Open Workspace for Natural Hair (or CROWN) Act, and adds another definition of “race” to the New Jersey Law Against Discrimination (NJLAD). 

According to Patrick T. Collins, chair of the labor and employment practice group at Norris McLaughlin, PA, employers must avoid asking potentially inappropriate questions during an interview that could bring out information regarding a person’s protected class. They’re not allowed to ask an applicant’s age, ask a female candidate if they plan on becoming pregnant, or inquire about a candidate’s disability (even if it’s an obvious one). “When it comes to interviewing, you have to keep it straightforward and job-related,” he explains. “When employers start chatting about things outside of the job, that’s when they can get into trouble.” 

Questions should also remain as consistent as possible amongst each candidate. “I’ve seen a situation where there were four people interviewing and one of them was female … and she was the only candidate who was asked about her ability to travel, children, and healthcare issues. Those types of questions stick out like a sore thumb, and can result in legal headaches for the employer later on,” Collins says. 

Employers should also keep detailed notes when hiring (and firing), in case they are ever asked why a particular candidate was hired or let go. This is especially true during these challenging economic times, when many businesses have had no choice but to lay off employees. “For many companies, business dropped off overnight and they had to reduce their workforces, and that’s an understandable reason for letting someone go. However, that employee still needs to be treated with respect and dignity. There still needs to be a legitimate business-oriented justification for the termination, and the employer still needs to ensure that all employees in similar positions are being treated equally,” Collins says. 

Another recent change in New Jersey is a ban on considering wage and salary history when determining whether or not to hire a particular candidate. “It happens to be one of the most stringent laws in the country,” Gingeleskie adds. “You can’t ask about or even take into consideration a potential employee’s previous wages, salary or experience before making a job offer.” There is one exception to the rule, however: If the applicant volunteers the information. 

The use of social media has also created legal roadblocks for employers, as the state has had to pass laws that prohibit employers from asking an employee for access to their social media profile. “Social media has infiltrated everyone’s lives, and employers are commonly using it to gather information about prospective and current employees, but they risk liability if an employee can demonstrate that their candidacy or employment was negatively impacted as a result of what was found on their social media profile,” Gingeleskie explains. 

Another federal and state law that employers have to be aware of is the Fair Credit Reporting Act. According to Marissa Mastroianni, a Hackensack-based associate in the employment law department at Cole Schotz, the federal and state versions of the law are similar, and both impose obligations on employers when using information gained from a background check to make hiring decisions. New Jersey also has a “ban-the-box” law that applies to companies with 15 or more employees, and imposes additional restrictions on inquiring about criminal history. “An employer can’t include in a job posting that the company won’t consider an applicant with a criminal history,” Mastroianni explains. “By law, employers also can’t ask about an applicant’s criminal history until after the first interview, unless the applicant volunteers that information.” 

Firing Protocols 

And then, of course, there’s the termination process. With many businesses still struggling in the wake of the pandemic, legal professionals urge employers to stay on top of any changes in termination laws. “When it comes to termination, everything the employer does carries legal risk, even when they do everything right,” Mastroianni asserts. Employees are protected against adverse employment action under the discrimination law, and the state also requires certain information be provided (such as when health coverage will cease and information regarding state benefits) upon termination. “Employers should also consider whether they asked that employee to sign an employment contract, non-disclosure agreement, restrictive covenant agreement, or other such paperwork, as those documents would need to be reviewed to ensure any post-termination obligations have been met,” she says. 

There are also many nuances that employers have to consider regarding the way job postings and interview questions are phrased. “Employers often use the phrase ‘you’re not the right fit,’ and I have litigated cases based upon that statement alone,” Mastroianni adds. That rule applies to job postings, too. Collins notes that employers shouldn’t use buzzwords like “energetic applicant,” which implies young, or gender-specific job titles such as “busboy” or “stewardess.” 

And what about being forced to lay off employees as a result of the current health and economic situation? Collins notes that employers should educate themselves on the state’s regulations regarding large-scale lay-offs, as well as screening for symptoms of COVID-19. “An employer can screen a candidate for symptoms of the virus, but only after they make a job offer,” he explains. “You can also delay the start of an applicant who has the virus, and you can withdraw an offer to that applicant if it happens to be a job that has to be started immediately.” Employers should also ensure they fully understand their employees’ rights during a pandemic. 

“There is new legislation that stipulates an employee’s leave rights as a result of COVID-19, and employers need to make sure they don’t retaliate or take any adverse action against employees for exercising those rights,” Gingeleskie says. 

Looking ahead, experts anticipate that the hiring and firing process may continue to undergo changes, but that employers should be aware of how new processes could open the door to legal troubles. “The pandemic has impacted almost every aspect of the hiring and firing process. Many employers are continuing to rely on technology and virtual platforms, especially since they provide a certain level of efficiency,” Gingeleskie concludes. “However, while the platforms used for hiring and firing may have changed, the underlying process has not, so it’s more important than ever for businesses to have an up-to-date and legally compliant policy in place as it relates to all of the new issues they are facing.”

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