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Perlman v. Kessler Institute for Rehabilitation


May 9, 2008


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7261-05.

Per curiam.


Argued April 29, 2008

Before Judges Fuentes and Chambers.

Plaintiff Karl Perlman appeals from the dismissal of this wrongful termination case against his former employer, defendant Kessler Institute for Rehabilitation. After a careful review of the record, briefs, and arguments of counsel, we affirm for substantially the reason set forth by the trial judge in his oral decision of September 7, 2007.

Plaintiff, an at-will employee employed as a pharmacist for the defendant, was terminated from this position on July 12, 2004. Defendant maintains that since plaintiff was an at-will employee, it could terminate him with or without cause. It notes, however, that it terminated plaintiff's employment for cause due to his conduct as the pharmacist on the night of July 9, 2004, when plaintiff closed the pharmacy, did not answer the phone, and did not fill a prescription when requested to do so by a nurse.

Plaintiff maintains that these steps were necessary due to other work he was performing at the time. He contends that the termination was really in retaliation for an earlier suit he had brought against defendant. In July 2002, plaintiff had commenced a civil action against defendant, demanding retroactive payment of the health and vacation benefits accorded to full-time employees. He had been originally hired as a part-time employee but he began working the hours of a full-time worker. In July 2001, he was recognized as a full-time employee. He then commenced the 2002 suit in order to receive health and vacation benefits retroactively. That case settled in May 2004, with $35,000 paid to plaintiff by defendant. Plaintiff continued to work for defendant until terminated.

On September 7, 2007, the trial court granted defendant's motion for summary judgment on the basis that plaintiff was an at-will employee who could be terminated with or without cause. Plaintiff now appeals that decision, contending that public policy and the New Jersey Wage and Hour Law, N.J.S.A. 34:11-56a to -56a30, protects him from retaliation in these circumstances.

Plaintiff's reliance on the New Jersey Wage and Hour Law is misplaced. The New Jersey Wage and Hour Law prohibits retaliatory action against employees who have made complaints regarding the failure to pay wages in accordance with the New Jersey Wage and Hour Law. N.J.S.A. 34:11-56a24. However, plaintiff's earlier suit asserted no violations of the New Jersey Wage and Hour Law, so that statute is inapplicable. Further, the statutory definition of "wages" under the New Jersey Wage and Hour Law does not include health and vacation benefits. N.J.S.A. 34:11-56a1(d).

Plaintiff also argues that a suit for employee benefits implicates public policy concerns, thereby giving him protection under the rationale of Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72 (1980) (allowing a cause of action for wrongful discharge "when the discharge is contrary to a clear mandate of public policy"). That argument has already been rejected by this court. Alexander v. Kay Finlay Jewelers, Inc., 208 N.J. Super. 503, 507-08 (App. Div.) (holding that plaintiff employee, who had been terminated after bringing suit seeking increased salary pursuant to a pre-employment agreement, could not maintain a suit for wrongful discharge, as the termination did not violate any clear mandate of public policy), certif. denied, 104 N.J. 466 (1986). We see no reason to revisit this issue, and decline plaintiff's invitation to overrule Alexander v. Kay Finlay Jewelers, Inc.



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