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Adverse Employment Actions

What is an Adverse Employment Action?

Adverse Employment ActionsAn adverse employment action is a significant negative action taking against you by your employer, such as being fired, demoted or passed up for a promotion. In New York and New Jersey, adverse employment actions are legally actionable only if they violate one of your legal rights, such as if they are motivated by an illegal factor like unlawful discrimination or retaliation, or if they breach your employment contract. Below is an overview of some of the most common types of adverse actions that employment lawyers encounter.

Wrongful Termination

Perhaps the most common adverse employment action is wrongful termination (also known as wrongful discharge). It occurs when someone is fired for an illegal reason, such as because of their age, race, gender or disability. For more information, please see our wrongful termination page.

Constructive Discharge

Sometimes instead of firing an employee, a company makes their working conditions so bad that the employee is forced to resign. This is called a constructive discharge or constructive termination.

Failure to Promote

Another common adverse employment action is a failure to promote. It is a violation of your employment law rights if your employer uses a legally prohibited factor to deny you a promotion, or to promote someone else instead of you.

Failure to Hire

Employers frequently refuse to hire job candidates for illegal reasons. If you applied for a job and the company hired someone else because of your age, race, disability or another illegal reason, you could have a failure to hire claim.

Wrongful Demotion

Employers can use demotions as a way to discriminate against an employee or to punish a whistleblower. Demotions typically involve a reduction in your job title, job duties and/or compensation. However, employers sometimes try to disguise a demotion by simply reducing an employee’s responsibilities or even taking away all of his or her duties without changing his or her job title (a “constructive demotion”). Likewise, whether or not it technically is a demotion, a significant reduction in one’s salary or benefits can be an adverse employment action which gives rise to a legal claim.

Transfer to Less Desirable Position

Another way employers sometimes discriminate or retaliate against their employees is to transfer them to less desirable jobs. This can be as extreme as transferring employees hundreds of miles from where they live, or to a position that has been scheduled to be eliminated in an upcoming reduction in force. Alternatively, it can be as subtle as moving employees to a job that is considered less desirable or prestigious, has less supervisory responsibility, is incompatible with their skills and experience, or offers fewer opportunities for promotion or advancement.

Harassment

Harassment is different from most other adverse employment actions because it is not a single event, like being fired or demoted. Instead, it is a pattern of bad behavior that, when considered as a whole, is comparable to a more tangible adverse employment action.

Like other adverse employment actions, harassment is actionable only if it is due to your membership in a legally protected category such as your age, race, gender or disability, if it is a form of illegal retaliation or it violates another law. For example, sexual harassment is harassment that is motivated by your gender or sex.

Undeserved Discipline

Generally, unwarranted discipline such as an unfair and negative performance review or a disciplinary warning, is not an adverse employment.  However, they can be part of a pattern of harassment.  However, more severe forms of discipline such as demotions and unpaid suspensions, can be legally actionable on their own.

Contact an Employment Lawyer

If you have experienced an adverse employment action at your job in New Jersey or New York, please feel free to contact us online or call our law office at (973) 744-4000.

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"I felt alone and without a voice, until I hired Jonathan I. Nirenberg of Rabner Baumgart Ben-Asher & Nirenberg, P.C. Mr. Nirenberg represented me in an employment matter. Without his help, I know that I would not have had the extremely successful outcome I had. Jonathan was not only professional, but very empathetic to what happened to me. Jonathan gave me support, and options in relation to a challenging employer/employment situation which was an extremely difficult time in my life..." Shelly Smith