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Employment Law Litigation

What Is Employment Litigation?

LitigationEmployment litigation is the process that begins when you file a lawsuit relating to your employment law rights, and ends when the lawsuit is completed, typically either through a settlement, the dismissal of your case, or a final ruling by a judge or jury. The whole process can last only a few days, such as if there is an early settlement, but also can last many years.

At Rabner Baumgart Ben-Asher & Nirenberg, P.C., our New Jersey employment litigators have handled hundreds of lawsuits, and have been responsible for numerous precedent-setting cases.

What Are the Phases of the Litigation Process?

Typically, the first stage of an employment lawsuit is the “discovery” phase. During discovery, the employer and employee learn information about each other's facts and evidence. For example, your lawyer can send written questions (called interrogatories) and requests for documents to the lawyer representing your employer.

In addition, your attorney can take depositions of key witnesses to learn what they know and what they are likely to say at a trial. A deposition basically is an interview under oath.  They are similar to trial testimony, except they usually take place in a lawyer’s office or by Zoom instead of in a courtroom, without a judge or jury present. 

In New Jersey, the discovery phase in an employment case typically lasts between approximately one and two years.

Summary Judgment

After discovery is over, either party can file a motion for summary judgment. If the employer files a motion for summary judgment, it asks the judge to dismiss the case on the basis that, even if you are able to prove all of the best possible facts that support your claim, you still would not be able to meet the legal standard to prove your claims. For example, in a wrongful termination case the employer might claim there is not enough evidence to prove you were fired for an illegal reason such as because of your age, race or gender.


Assuming you have enough evidence to survive a motion for summary judgment and your case has not settled, then the next phase of litigation usually is a trial. Most employment law trials are decided by a jury. However, a judge still makes rulings on legal issues, including what evidence can and cannot be used during the trial, and explains to the jury what each side has to prove to win.

If you win at a trial, the judge or jury can award you damages. In employment cases, this typically includes damages for your emotional distress and your lost wages and benefits. In some situations, the judge or jury also can award you punitive damages to punish a company or an individual for especially egregious behavior.

In most discrimination, harassment and retaliation cases, the employer also can be required to legal pay legal fees to compensate your New Jersey employment litigation attorney, and some or all of the out-of-pocket costs you spent pursuing your lawsuit.

For more information, please see our Employment Law Damages and Other Employment Law Remedies pages.


Even after the trial is over, the litigation process is not necessarily finished. Either party can appeal to try to reverse some or all of what happened at the trial.

Are There Any Alternatives to Employment Litigation?

As an experienced New Jersey employment litigator can explain, there are numerous alternatives to litigation, including negotiation, mediation, and arbitration.

One of the best alternatives to litigation is negotiation. Employment lawyers frequently write “demand” letters to companies in which they attempt to negotiate a reasonable severance agreement or settlement package before a lawsuit has been filed. In addition, even after a lawsuit has been filed, there usually are numerous opportunities to attempt to negotiate a settlement during the litigation process.

Mediation and Settlement Conferences

Mediation is a process through which a neutral (typically another lawyer or a retired judge) tries to help the parties reach a settlement. Similarly, in both state and federal court, judges often hold settlement conferences to try to help the parties amicably resolve their claims.


Yet another alternative to litigation is arbitration. Arbitration is when the parties hire one or more private individuals to act as, in effect, the judge and jury in their case. While arbitration generally is considered more favorable to employers and less favorable to employees, it might be required if you signed an arbitration agreement with your employer.

Can You Represent Me in Litigation?

At Rabner Baumgart Ben-Asher & Nirenberg, our New Jersey employment litigation attorneys represent employees through the entire employment litigation process, from pre-litigation negotiations through the final appeal. If you would like to talk to us about filing a lawsuit on your behalf please feel free to either contact us online or call us at (201) 777-2250.

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Client Reviews
"I worked with Jonathan Nirenberg, ESQ on a sensitive emotional employment matter. Mr. Nirenberg was quick to respond, offered excellent advice, and always followed up with phone calls or emails when needed. My situation was settled out of court within a short period of time with the best possible results for not just me but also for the employer. Highly recommend and would seek his help again if needed..." Linda Busch, PhD
"We've had the pleasure of working with Jonathan on multiple individual and class employment cases. Jonathan is a skilled, dedicated and caring attorney that works diligently to bring justice for his clients. We would recommend Jonathan as a legal resource for any employment cases." Stephan Zouras, LLP
"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