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:
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
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 York City area, call Attorney David S. Rich at (212) 209-3972.
Visit the New York Business Litigation and Employment Attorneys Blog
for commentary regarding business litigation, employment, and securities
related legal issues.
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