Law Offices of Mitchell Schley, LLC

New York and New Jersey Labor and Employment Lawyer

197 Route 18 South
South Tower – Suite 3000
East Brunswick, NJ 08816
Phone: (732) 325-0318
Fax: (732) 325-0317

245 Park Avenue, 39th Floor,
New York, NY 10167
Phone: (212) 672-1848
Fax: (212) 372-8798

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(732) 325-0318

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About Mitchell Schley, ESQ


The following discussion concerns the rights of an employee who is laid-off from his or her job.

Employers, of course, have the right lay off employees when business is not good and the company cannot afford to keep all of its workers. The company will decide how many employees it will needs to layoff and will make a list of names and inform these employees that they are being terminated. At this point most employees believe there is nothing they could do about it because they think they are losing their job as part of a large group for legitimate business reasons. This may be true but the employee must ask this question: There are many employees who do the same job as I do in my department, but the company is laying off perhaps only 25% of my department. Why was I selected by my manager to be on the layoff list and not another employee? Does the decision seem fair? Does it make sense? When the company makes up the list they must comply with the law. According to New Jersey and federal law an employer cannot select an employee to be laid-off because of the employee’s age, race, sex, national origin, religion or disability.

Let’s look at a simple example. A department is made up of 50 employees. Five of the employees are Chinese. The company wants to lay off 8 workers from this department and tells the manager to make up a list. The manager is new. He was hired just 6 months ago. He makes up a layoff list which includes 4 Chinese employees and 4 white employees. All 4 Chinese employees are very good workers and are better workers than many of the white employees not on the list. Something seems wrong here. The Chinese employees make up 10 % of the department but make up 50% of the layoff list. The white employees make up 90% of the department but they make up only 50% of the layoff list. It looks like this new manager may not like to work with Chinese workers and is using the layoff as a convenient way to get rid of them. This is against the law because an employer may not discriminate against employees because of their race.

Here is another example. Many companies like to have younger workers rather than older workers but it is hard to fire older workers one at time. So some companies wait for a big layoff and then put many older workers on the list even if they are better than some younger employees who are not on the list. This is illegal because the law says that an employer may not discriminate against older workers. If you believe that you are being discriminated against, you should speak to a lawyer who specializes in employment law who can help you evaluate the situation.

When employees are laid off many companies offer their employees severance pay to help them while they look for another job. However, the company will not give an employee severance pay unless the employee signs an agreement that says that the employee will not file a lawsuit against the company because of the layoff. It is always a good idea to bring this agreement to a lawyer before you sign it because once you sign it you waive your right to legally challenge your layoff. For example, let’s say the company offers you severance pay of 4 weeks of salary in exchange for an agreement. If you bring the severance agreement to a lawyer he may say the layoff is fair and you should sign the agreement. But he might say that the company should not have laid you off and he can negotiate a much larger severance payment for you from the company because the company might be concerned that they made a mistake and will be sued. When you are given a severance agreement by the company you should never sign it right away. You should take it home read every word very carefully. The law says that a company must give laid-off employees time to decide whether or not they want to sign a severance agreement.

When you are laid-off you should immediately file an unemployment insurance claim. Many people think they can wait to file and then get benefits back from the date of their layoff. This is not true. Your payments begin from the point you apply, so if you wait 3 weeks to file for unemployment insurance you have lost 3 weeks of benefits. Many people also think that they cannot receive unemployment insurance benefits when they are receiving severance payments from their company. This is also not true. In most cases in New Jersey, laid-off employees are entitled to receive unemployment insurance benefits while they are also receiving severance payments. A laid-off worker can normally collect unemployment insurance benefits for up to 26 weeks, but because of the current economic problems, the government has temporarily extended the maximum to 79 weeks. The normal maximum payment in New Jersey is $560 per week. You can file for unemployment insurance benefits on-line by going to the New Jersey Department of Labor website.

Mitchell Schley is an attorney who practices labor law at the Law Offices of Mitchell Schley, LLC, in East Brunswick and New York City. Feel free to contact him if you have a question about this article or any other labor law issue. He can be reached at (732) 325-0318 or at

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Law Offices of Mitchell Schley, LLC
197 Route 18 South, South Tower – Suite 3000, East Brunswick, NJ 08816 • Phone: (732) 325-0318 • Fax: (732) 325-0317
245 Park Avenue, 39th Floor, New York, NY 10167 • Phone: (212) 672-1848 • Fax: (212) 372-8798
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