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COVID-19 RESOURCE CENTER FOR NJ EMPLOYEES

Since New Jersey is an “at-will employment” state, employers can terminate employees for any reason, or for no reason at all, as long as they do not violate local, state, or federal law. The good news for workers is that New Jersey employment laws provide numerous protections against termination for certain reasons and in certain ways. An employer cannot fire someone primarily because of factors like race, religion, sex, sexual orientation, disability, and others. They cannot terminate an employee in retaliation for protected activities like whistleblowing. Both federal and New Jersey employment laws set limits on mass layoffs. The federal Worker Adjustment and Retraining Notification (WARN) Act requires advance notice of large-scale layoffs. New Jersey also has a WARN Act (NJWARN) that provides workers with additional rights. The WARN Act has been in the news recently. A major tech company is facing several class actions under state and federal WARN Acts because of mass layoffs.

The federal WARN Act applies to employers who meet one of the following criteria:
– They have at least one hundred full-time employees; or
– They have one hundred or more full- or part-time employees who collectively work at least 4,000 hours per week.
The NJWARN Act is slightly different. It applies to employers that have been in business for more than three years and have at least one hundred employees.

Both laws require employers to give notice at least sixty days in advance of mass layoffs that will result in five hundred or more employees losing their jobs in a thirty-day period. The WARN Act requires notice to all affected employees or their union. The NJWARN requires employers to give notice to both the employees and their union.
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Employment agreements often contain clauses and terms intended to protect an employer’s business interests. When a contractual provision limits an employee’s actions, it is known as a restrictive covenant (RC). Sometimes, RCs create difficulties for employees. A common type of RC is the non-compete agreement, which bars an employee from accepting work with the employer’s competitors under various circumstances. Many workers may feel like they are not in a position to try to negotiate different terms with a current or prospective employer. New Jersey employment law sets limits on the extent of RCs in employment or severance agreements. A bill pending before the New Jersey Legislature would expand the limits on some RCs, including non-compete agreements, and provide employees with additional rights.

A non-compete agreement may prohibit an employee from working for a competitor while employed by the employer. It may also prohibit employment with a competitor after the employee no longer works for the employer. In order to be enforceable, a non-compete agreement must be very clear about its terms, such as who counts as a competitor and how long the agreement remains in force for the employee. A 1970 decision by the New Jersey Supreme Court identified three elements that a non-compete agreement must satisfy:
1. The scope of the agreement is limited to the employer’s “legitimate interests.”
2. The agreement does not place an “undue hardship” on the employee.
3. The agreement is not “injurious to the public.”

The bill in the New Jersey Legislature, A3715, is currently pending before the Assembly Oversight, Reform and Federal Relations Committee. It identifies multiple groups of people who may not be subject to non-compete agreements at all, including anyone who is considered exempt under the Fair Labor Standards Act, undergraduate or graduate interns, temporary or seasonal workers, independent contractors, employees who are less than 18 years old, and employees who were employed for less than one year. For anyone who could be subject to a non-compete agreement, the bill sets numerous limitations on the agreement’s terms.
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Workers are entitled to payment for all hours that they perform work for their employers under federal and New Jersey employment laws. Employers must pay non-exempt employees at a rate equal to or greater than the minimum wage set by state law. They must also pay all wages owed to their employees at the end of each pay period. Employers who fail to meet these duties could be liable to their employees for damages. A worker at a New Jersey theme park recently filed a class action in federal court alleging state wage law violations. She claims that the defendant required employees to perform unpaid work both before clocking in and after clocking out.

The lawsuit cites three provisions of New Jersey law. First, the New Jersey Wage and Hour Law (NJWHL) requires employers to pay at least minimum wage to their non-exempt employees. In 2022, the statewide minimum wage is $13 per hour. It will increase to $14.13 per hour on January 1, 2023. It will continue to increase annually until it reaches $15 per hour at the beginning of 2026.

New Jersey employment regulations require employers to pay their workers “for all hours worked.” This generally includes all activities required by employers, particularly those on the employer’s premises. The plaintiff cites two decisions from the U.S. Supreme Court addressing what sorts of activities count as compensable work:
– In Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123 (1944), the court held that iron ore miners were entitled to pay for the time they spent traveling to and from the “working face” of the mine. The trip often involved a precarious journey of 3,000 to 12,000 feet through dark underground tunnels.
– The plaintiffs in Anderson v. Mt Clemens Pottery Co. (1946) had to walk across an eight-acre facility to get from the time clocks to their work areas. This could take up to an hour each day. The court held that this time was compensable.
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Since early 2021, New Jersey employment law has protected workers in this state from discrimination or other adverse employment actions based on their use of cannabis outside work, as well as their refusal to engage in cannabis use. Employers may still prohibit the use of cannabis in the workplace, and they may take reasonable measures to prevent employees from working while under the influence of cannabis. State law limits the use of drug testing by employers, but the New Jersey Cannabis Regulatory Commission (NJCRC) still has not issued final guidelines on this part of the law. It issued extensive guidelines in September 2021 that did not address employment issues. One year later, the NJCRC issued interim guidance on employment, which offers some direction on workplace drug testing.

The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) became law in February 2021. Section 48 of CREAMMA, codified as § 24:6I-52 of the New Jersey Revised Statutes, addresses cannabis in the workplace. It prohibits discrimination based on an employee’s or job applicant’s cannabis use, or lack thereof. If an employee tests positive for cannabinoid metabolites because of cannabis use that is legal under CREAMMA, their employer may not take adverse action against them solely on that basis.

The statute allows employers “to maintain a drug- and alcohol-free workplace,” such as by not allowing employees to be under the influence of cannabis during work hours. Employers may require their employees to submit to drug tests under certain circumstances:

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New Jersey employment laws protect workers against multiple kinds of abuses by employers, such as failure to pay minimum wage or overtime, requiring unpaid work time, and unlawful payroll deductions. Both state and federal statutes address wage and hour violations, but these protections only apply to “employees.” The legal definition of this term rarely includes temporary workers. A bill pending in the New Jersey Senate would create a “​​Temporary Workers Bill of Rights” that extends many of the legal protections enjoyed by employees to people who work for staffing agencies. The bill has faced multiple hurdles since its introduction in early 2022. While its future is uncertain, lawmakers in support of the bill say it still has a chance at passage.

The federal Fair Labor Standards Act (FLSA) and the New Jersey Wage and Hour Law (WHL) set a minimum wage for non-exempt employees. They also require employers to pay non-exempt employees time-and-a-half for any time they work over forty hours in a week. Neither statute has a detailed definition of “employee.” They both define the term as “any individual employed by an employer.” The protections offered by these laws often do not extend to individuals who work for staffing agencies contracted by other companies to provide temporary workers.

In the most recent version of the pending bill, A1474, the Legislature states several findings related to temporary workers and their working conditions. “[T]emporary help service firms, sometimes referred to as temp agencies or staffing agencies,” employ about 127,000 people in New Jersey. The state has licensed around one hundred temp agencies, while an unknown number of unlicensed agencies “operate outside the purview of law enforcement.” Temporary jobs are heavily concentrated in “service occupations,…production, transportation, and material moving occupations and manufacturing industries.”
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Age discrimination can affect almost any New Jersey employee, although it occurs most often among older workers who find themselves passed over in favor of younger individuals. Both federal and state employment laws prohibit discrimination on the basis of age to varying degrees. The Equal Employment Opportunity Commission (EEOC) filed suit earlier this year against a New Jersey employer on behalf of a 62-year-old woman. The complainant alleges that her employer passed her over for a lateral transfer in violation of the federal Age Discrimination in Employment Act (ADEA). The lawsuit, which is pending in the U.S. District Court for the District of New Jersey, seeks back pay and other damages for the complainant, as well as policy changes and other injunctive relief. If you feel you are the victim of age discrimination in the workplace, please reach out to a New Jersey employment lawyer to discuss your options.

The New Jersey Law Against Discrimination (NJLAD) provides extensive protection against workplace age discrimination. It applies to almost all employers, regardless of the number of employees. It does not limit its protections to workers of any particular age, as long as they are adults. A qualified 20-year-old who lost out on an opportunity because of the perception of being “too young” could assert a claim under the NJLAD, as could a qualified 70-year-old who was passed over for being “too old.”

Federal law’s protections against age discrimination are not as broad as those provided by the NJLAD. The ADEA applies to employers with at least twenty employees and workers who are forty years old or older. Its protections are essentially limited to discrimination based on someone being perceived as “too old.” The 70-year-old described above could assert a claim under the ADEA if they work for a large enough employer. The 20-year-old could not, though.
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The National Labor Relations Act (NLRA) protects the rights of employees to engage in activities related to organizing for the purposes of collective bargaining with their employers. It prohibits employers from interfering with or restraining these activities. Once employees have formed or joined a union and designated it as their authorized representative, the NLRA requires their employer to negotiate with the union regarding issues affecting member employees. An employer violates the NLRA if it deals with represented employees directly rather than through the union. The National Labor Relations Board (NLRB) recently affirmed a ruling finding that an employer violated the NLRA by communicating with employees without notifying the union. If your employer is in discussions with individual employees rather than the union that represents them, reach out to a New Jersey employment lawyer to discuss the situation.

When a majority of employees within a particular unit select a representative for the purposes of collective bargaining, § 9(a) of the NLRA states that this will be those employees’ exclusive representative. A “unit,” according to § 9(b), could consist of all employees in a company, in a division of a company, at a particular plant or facility, or in other groups or divisions. Section 8(a)(5) of the NLRA states that an employer engages in an “unfair labor practice” when it refuses to negotiate with employees’ exclusive representative, as designated under § 9(a).

The NLRB’s interpretation of §8(a)(5) draws on a decision by the Second Circuit Court of Appeals from 1969, in which the court deal with a situation where an employer attempted “​​to deal with the Union through the employees, rather than with the employees through the Union.” The NLRB has developed a three-part test for identifying situations in which an employer dealt directly with employees in violation of § 8(a)(5):
1. The employer “communicate[d] directly with union-represented employees.”
2. The purpose of the communication was to “establish[] or chang[e] wages, hours, and terms and conditions of employment,” or to “undercut[] the union’s role in bargaining.”
3. The employer excluded the union from the communication.
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Government regulators enforce a wide variety of laws, from statutes prohibiting employment discrimination to those that deal with securities fraud and other fraudulent activities. They rely on information provided by business insiders, but many employees might hesitate to report potential legal violations by their employers for fear of losing their jobs. New Jersey’s Conscientious Employee Protection Act (CEPA) is one of many whistleblower protection statutes that prohibit retaliation by employers against employees who report their concerns. Proving that an adverse employment action constituted unlawful retaliation can be tricky, and different statutes have different requirements. A federal appellate court recently ruled on a whistleblower claim under the Sarbanes-Oxley Act (SOX). It found that this statute has a more difficult standard of proof than CEPA. If you fear retaliation or discrimination for reporting legal violations in the workplace, reach out to a New Jersey employment lawyer to review your options.

CEPA provides rather broad protection for whistleblowers in New Jersey. It applies to employees who:
– Report alleged violations of a statute or regulation, either internally or to a regulatory agency;
– Provide information or testimony as part of an ongoing investigation into a possible violation of the law; or
– Object to or decline to participate in an activity that they reasonably believe would violate the law or go against public policy.
The statute’s definition of a “retaliatory action” includes termination, suspension, demotion, and other adverse actions.

An employee claiming unlawful retaliation under CEPA must show a causal connection between their whistleblowing activities and the adverse action against them. New Jersey court rulings have held that a plaintiff can establish this element by producing enough evidence to allow a judge or jury “to infer that discrimination was more likely than not a motivating or determinative cause” of the employer’s adverse action. The recent appellate court decision regarding SOX found a much stricter burden of proof for plaintiffs.
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The COVID-19 pandemic has presented numerous employment law challenges. Employers, employees, government regulators, and others have had to balance financial needs, public health, and workplace safety. The Centers for Disease Control and Prevention (CDC) has issued various guidelines related to testing and isolation. The Equal Employment Opportunity Commission (EEOC) has addressed questions about what employers may require of their employees under laws like the Americans with Disabilities Act (ADA). These agencies have modified their guidelines as our knowledge about the coronavirus has increased, and as pandemic conditions have changed. Recent updates present relaxed standards for workplace safety, mandatory COVID testing, and other matters. New Jersey employees should be aware of their rights under both federal and state laws. If you have questions about COVID-19 guidelines at your workplace, please contact a New Jersey employment lawyer to discuss.

EEOC guidance on testing

On July 12, 2022, the EEOC updated the guidance document entitled “​​What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” One of the main issues the document addresses is whether the ADA allows employers to require COVID-19 testing among employees. Generally speaking, the ADA requires any medical examinations or inquiries by employers to be “job-related and consistent with business necessity.” A medical condition that presents a “direct threat” to others in the workplace usually meets this requirement.

In the early days of the pandemic — particularly before a vaccine became widely available — the EEOC concluded that mandatory testing was acceptable because of the broad risk posed by exposure to the coronavirus. Much has changed since 2020. The agency has modified its interpretation of “business necessity” in light of improved public health measures, while also considering the ongoing mutation of the virus.
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Federal labor law protects workers’ rights to organize themselves in order to engage in collective bargaining and advocate for their interests. The National Labor Relations Act (NLRA) identifies these rights and prohibits employers from interfering with employees who are engaged in protected activities. The National Labor Relations Board (NLRB) adjudicates allegations of unlawful actions by employers and labor unions. Recently, a panel of the NLRB in New Jersey ruled in a case that alleged numerous NLRA violations by an employer, including refusing to negotiate with its employees’ authorized representative and firing multiple employees because of their union activities. An administrative law judge (ALJ) found that the employer violated multiple provisions of the NLRA. The NLRB panel affirmed the ruling, with some modifications. If you are involved in a labor dispute, contact a New Jersey employment lawyer today to learn more about your rights.

Workers have the right to “self-organization” under the NLRA. They may engage in activities directed towards organizing themselves to join or form a union, along with other activities related to “collective bargaining or other mutual aid or protection.” Section 8(a) of the statute identifies prohibited “unfair labor practices by employer[s].” These include interfering with protected activities by employees, discriminating on the basis of union membership or organizing activities, and refusing to participate in collective bargaining with authorized union representatives. Workers may report alleged violations to the NLRB.

The employer in the recent NLRB decision operates a hotel in North Bergen, New Jersey. According to the ALJ’s opinion, it entered into a collective bargaining agreement (CBA) with its employees’ union in 2011. The CBA expired in 2015, but the employer and the union had not been able to agree to a new CBA. As of the date of the ALJ’s ruling in late 2021, the 2011 CBA remained the most recent agreement between the two.
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