By Scott Morgan
Employment law can be a dodgy concept for employers and workers alike. When someone is fired, or about to be, it’s hard to know where the legal lines are.
After a quarter-century practicing law (and a good chunk of that time focusing on how the law relates to businesses and industries), Nancy Mahony understands both sides of the issue. This is why she offers her services to people on both sides, because things are not always as cut-and-dried as they may seem.
“There are a lot of misunderstandings,” Mahony said. “It’s sad, but most people who think they have a case don’t really have a case.”
This is almost always an employee-side problem. Because the law prohibits firing someone for specific reasons (i.e., race, creed, national origin, sexual orientation, etc.), a lot of people feel as if they are being wrongfully terminated.
This, Mahony said, is especially the case for people who have experienced discrimination based on who they are or belong to a group that is, or has been, the subject of widespread discrimination in the past. So when they’re fired in a way that seems odd to them, they often think they have a stronger case than they really do.
But the truth is, Mahony said, for a termination to be illegal or wrongful, the reason someone is let go must be directly linkable to one of the forbidden-to-fire reasons. And a lot of people, she said, simply don’t know that.
Where the lines get blurred is in the everyday behavior of some employers and coworkers who cut their teeth in an earlier era, when sexist, racist, or other jokes aimed at one group of people or another were commonplace. “A lot of people used to think that was harmless,” Mahony said. “But that’s not OK today.”
However, just because an employer may be off the hook for specific criminal penalties, the company may still be courting danger when it comes to how employees are treated, particularly by management. The surest way to avoid costly assumptions, Mahony said, may be the simple employee handbook; something that spells out the policies for what kind of behavior will be tolerated and what will not.
Mahony, who earned her J.D. from Widener University in 1986, doesn’t just go to court. She also does a lot of training for managers who need to know how to deal with internal personnel issues, such as harassment accusations or in the event of a whistleblower.
Whistleblowers, for example, are protected by law from retaliation. What a lot of managers don’t know, Mahony said, is that whistleblowers cannot be retaliated against even if they’re wrong. In other words, if someone blows the whistle about, say, a questionable practice and an investigation or court finds that nothing illegal was actually happening, the whistleblower still cannot be punished or submitted to personal attacks.
But managers who make comments are somewhat commonplace, and if after a case blows over they retaliate against a whistleblower, “the employer is back on the hook for that,” Mahony said.
Before opening her practice in Ewing, Mahony spent 12 years as a state attorney general, representing state agencies. She calls her early years, fresh from law school, “a baptism by fire;” a time when she got more experience in her field in a few years than most new attorneys get after a decade.
She eventually represented the New Jersey Economic Development Authority and honed her professional skills doing labor and employee relations law. For five years she concentrated on civil rights law, which she said she loved doing.
In 2011, Mahony retired from the state and wanted to turn her attentions to private sector law after 25 years in the public sector. She took a position with a nonprofit and did some lobbying until 2012, when she took on per diem work with a firm that dealt with employee and work-related law in the private sector. In 2013, she opened her law office. She still does per diem work, on top of her own cases and manager training sessions.
What she’s learned is that discrimination may be hard to prove, but the cases brought by slighted employees are usually not frivolous, despite how they may sound.
A woman, for example, may truly believe she’s been harassed or targeted because of her gender. And she may actually have been harassed, but that harassment has nothing to do with gender.
One case she recalls revolved around a black couple who lost their bid to a house and were offended by how badly they were treated by their white real estate agent.
As it turned out, the agent treated everyone terribly, but the way the couple were treated could have been easily mistaken for racial discrimination.
One other thing Mahony has learned is that it’s better when situations don’t require lawyers and courts. “I believe that when there is an employment dispute, the goal should be to amicably resolve the matter,” she said.
It is less costly for the parties — both financially and emotionally. When all is said and done, unless the employee is being terminated, managers and supervisors have to go back and work together.”
The Law Office of Nancy Mahony is located at 48 Montague Ave., Ewing. She can be contacted at 609-530-0593. On the web at nancymahonyllc.com.
Attorney Nancy Mahony, a Ewing resident and business owner, is well versed in both sides of employment law. (Staff photo by Bill Sanservino.),
