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employment contractThe term “gig economy” has entered common usage in recent years. It broadly refers to alternatives, of sorts, to having a single 9-to-5 employer. This includes rideshare or delivery services, and services ranging from childcare to odd jobs through online platforms. It also includes selling goods through online marketplaces, and most kinds of freelance work. One supposed advantage of the gig economy is that it provides greater flexibility for workers than the traditional workplace. It also comes with certain disadvantages, including a lack of legal protections when compared to the traditional definition of “employment.” This summer, the New York Times reported on several studies examining the gig economy. While most of the workforce still holds traditional jobs, the gig economy is growing. The studies provide nationwide information, not figures on employment in New Jersey or any other specific state. As this type of work arrangement becomes more common, our system of employment laws may have to catch up. Speak to a New Jersey employment lawyer to discuss any questions you might have.

Minimum wage and overtime laws are among workers’ most important legal protections, but state and federal laws only apply to people who meet a specific definition of an “employee.” The federal Fair Labor Standards Act (FLSA) establishes a national minimum wage, overtime requirements, and limits on child labor. Its definition of an “employee” is simply “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). Gig economy workers are often considered to be independent contractors instead of employees, for FLSA purposes. The extent to which the FLSA’s minimum wage and overtime requirements apply to gig economy workers is a matter of ongoing dispute, with courts deciding cases in both directions and the U.S. Department of Labor (DOL) recently changing its position on the issue.

New Jersey’s Wage Payment Law expressly states that it only applies to “employees,” which it defines as “any person suffered or permitted to work by an employer.” N.J. Rev. Stat. § 34:11-4.1. The statute specifically excludes independent contractors from that definition. The state’s Wage and Hour Law has a similar definition of “employee,” but without the specific exclusion of independent contractors. Id. at § 34:11-56a1(h). State regulations establish a test for determining whether an employee has been misclassified as an independent contractor. N.J.A.C. § 12:56-16.1. See also Hargrove v. Sleepy’s, LLC, 106 A.3d 449 (N.J. 2015).
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financial accountingFederal law prohibits employers from engaging in practices that have an adverse effect on competition. This includes practices that harm consumers and those that harm employees. For example, employers engaged in the same business, who would ordinarily compete among each other for employees, may not enter into agreements with one another that diminish employment opportunities or set artificial limits on wages. Agreements not to solicit or hire one another’s employees, for example, can prevent those employees from advancing in their chosen careers. Agreements on wage limits impact employees’ ability to negotiate higher wages. The Federal Trade Commission (FTC), which enforces various federal consumer laws, may also investigate anticompetitive practices. It recently announced a settlement with a group of staffing companies, which it alleged violated federal law by colluding to limit pay rates. In the Matter of Your Therapy Source, LLC, et al, No. C-1710134, complaint (FTC, Jul. 31, 2018). Although the case did not involve events in New Jersey, federal antitrust and anticompetition laws have nationwide application. A New Jersey employment law attorney can help guide you in the right direction based on the unique facts of your situation.

The FTC was created by the Federal Trade Commission Act (FTCA) of 1914, 15 U.S.C. § 41 et seq. The statute prohibits “unfair methods of competition in or affecting commerce,” and authorizes the FTC “to prevent persons, partnerships, or corporations…from using unfair methods of competition in or affecting commerce.” Id. at §§ 45(a)(1), (2). It also specifically states that a finding of liability under the FTC Act does not preclude additional findings of liability under other antitrust statutes, such as the Sherman Antitrust Act of 1890. Id. at §§ 44, 45(e).

The respondents in the Your Therapy Source case operated staffing services that, according to the FTC’s complaint, provided therapists to “treat[] home health agency patients in the Dallas/Fort Worth, Texas area.” Your Therapy Source, complaint at 1. Although the companies competed with one another in the same market, the FTC alleged that they “agree[d], and invit[ed] other therapist staffing companies to agree, on rates paid to therapists.” Id. Ordinarily, therapists could “contract with multiple therapist staffing companies and choose among them based on pay rate” and other factors. Id. at 3. The agreement alleged by the FTC, however, prevented therapists from obtaining competitive pay rates.
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corporate emailThe National Labor Relations Act (NLRA) protects workers’ rights to engage in activities related to labor organizing. The statute established the National Labor Relations Board (NLRB) to investigate and adjudicate alleged violations. Union organizing can now take place both online and in real life, and the NLRB regularly considers questions involving communications technologies like email. Its rulings can affect not just New Jersey employment law but workers in New Jersey and all over the country. In 2007, the NLRB ruled that employers can place restrictions on employees’ use of company email for non-work purposes, even if it might restrict employees’ ability to engage in NLRA-protected activities. It overturned that decision in 2014, but now the NLRB is asking the public to file briefs addressing whether it should return to the standard it established in 2007.

Section 7 identifies workers’ “right to self-organization,” and to engage in activities related to “bargain[ing] collectively through representatives of their own choosing.” 29 U.S.C. § 157. An employer commits an “unfair labor practice” under § 8 of the NLRA if it “interfere[s] with, restrain[s], or coerce[s]” an employee attempting to exercise a protected right. Id. at § 158(a)(1). Congress enacted the NLRA in 1935, and it last amended § 7 in 1947. The nature of union organizing has changed in many ways since that time, and the job of interpreting § 7 in light of new technologies has largely fallen on the NLRB.

In 2007, the NLRB ruled that “employees have no statutory right to use the [employer’s] e-mail system for Section 7 purposes.” The Guard Publishing Co. d/b/a The Register-Guard, et al, 351 NLRB 1110 (2007). The employer in that case, a newspaper, installed a computer system in 1996 that provided email accounts for many of the employees. It maintained a policy prohibiting employees from using their email accounts for “non-job-related solicitations.” Id. at 1111. An employee alleged violations of § 7 after the employer issued several written warnings to her about using her company email account to send notices about union activities. The NLRB affirmed an administrative law judge’s (ALJ’s) 2002 ruling that the employer’s policy did not violate § 8, but that the employer violated § 8 by enforcing the policy in a discriminatory manner.
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equal payA new law, entitled the Diane B. Allen Equal Pay Act (DAEPA), went into effect in New Jersey on July 1, 2018. Described by the media as “the strongest equal pay law in America,” the law amends the New Jersey Law Against Discrimination (NJLAD) to address disparities in pay based on all protected categories. If a covered business pays workers at different rates, it must justify the difference based on factors like education or experience. The state recently issued reporting forms for businesses that enter into certain contracts with the state, which they must submit to the New Jersey Department of Labor and Workforce Development.

The federal Equal Pay Act (EPA) of 1963 prohibits paying employees at different rates “on the basis of sex” in jobs that “require[] equal skill, effort, and responsibility, and…are performed under similar working conditions.” 29 U.S.C. § 206(d)(1). The statute allows exceptions where the disparity is based on seniority, merit, “quantity or quality of production,” or other non-sex-based factors. Id. The EPA amended the Fair Labor Standards Act (FLSA), and allows complainants to recover damages through the same process for minimum wage and overtime violations. Id. at § 206(d)(3). The law has a two-year statute of limitations, meaning that complainants cannot recover damages for more than two years of New Jersey equal pay violations. Id. at §§ 216(c), 255(a).

The DAEPA was introduced in the New Jersey Legislature as Senate Bill 104 on January 9, 2018, and as Assembly Bill 1 on March 22. It passed both houses on March 26, and was signed into law by the governor on April 24, with an effective date of July 1. According to media analyses of federal labor statistics, female workers are paid eighty-two cents for every dollar paid to male workers in New Jersey. This number includes all women throughout the state. For women of color, the pay disparity is much greater. The DAEPA goes further than equal pay statutes that focus on sex or gender. It prohibits pay discrimination on the basis of any protected class identified by the NJLAD, such as race, religion, nationality, sexual orientation, etc.
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employee rightsNew Jersey labor laws protect the rights of workers to organize for the purpose of collectively asserting their workplace rights, such as by forming a union to engage in collective bargaining with their employer’s management. At the federal level, the National Labor Relations Act (NLRA) protects a wide range of activities related to organizing, and prohibits employers from interfering with employees in the exercise of those rights. The National Labor Relations Board (NLRB) is charged with investigating and, in some cases, issuing rulings on alleged violations of the NLRA. An ongoing issue of dispute between employers and employees is the extent to which employers can bar their employees from engaging in organizing activities on the employer’s property. The NLRB recently ruled that an employer’s ban on solicitation on company property was an unfair labor practice under the NLRA. UPMC, 366 NLRB No. 142 (2018).

Section 7 of the NLRA protects workers’ “right to self-organization,” which includes the right “to form, join, or assist labor organizations.” 29 U.S.C. § 157. It is an “unfair labor practice” for employers “to interfere with [or] restrain…employees in the exercise of the rights guaranteed in” Section 7. Id. at § 158(a)(1). Employees may file complaints alleging unfair labor practices with the NLRB.

The NLRB’s website states the agency’s position regarding employees’ solicitation of their fellow employees for union membership: “Working time is for work.” Employers, according to the NLRB, are permitted to “maintain and enforce non-discriminatory rules limiting solicitation and distribution,” but they cannot prohibit such activity “during non-work time, such as before or after work or during break times.” It bases this position on U.S. Supreme Court decisions affirming the right to engage in solicitation outside of work hours. The UPMC case involves businesses providing healthcare services. The Supreme Court has ruled that “health care facilities [must] permit employee solicitation and distribution during nonworking time in nonworking areas,” provided that the employer has not shown that such activities cause “disruption of health care operations or disturbance of patients.” Beth Israel Hospital v. NLRB, 437 U.S. 483, 507 (1978).

employee rightsOrganized labor, usually in the form of labor unions, is responsible for countless improvements in working conditions in New Jersey and throughout the country. The first half of the twentieth century saw the most improvements, as unions and their members fought—often literally—for reasonable hours, workplace safety, and better pay and benefits. Union membership has declined significantly in the past fifty years, however. One reason is a well-organized campaign that advocates for laws limiting the influence of unions in the workplace. These laws often go by the rather Orwellian name “right-to-work.” Voters in Missouri recently rejected a right-to-work law enacted by the state legislature and signed by the governor. Still, at least twenty-seven states have enacted right-to-work laws. New Jersey remains very favorable towards unions, with both laws and court decisions that affirm unions’ importance to the modern workplace.

Unions are able to negotiate on behalf of workers through collective bargaining agreements (CBAs) between a union and an employer. In order to understand how right-to-work laws affect unions’ ability to negotiate effectively, it is important to understand how unions have sought to ensure that they are able to speak for as many workers as possible. Some CBAs have, in the past, created “closed shops,” which means that employers could only hire union members. A “union shop” refers to an employer that, under the terms of a CBA, must require employees to join the union as a condition of employment.

One of the main objections to these types of arrangements involves the obligation of workers to join a union and pay dues, even if they do not agree with the union’s positions on various issues. The counter-argument to this is that all employees of a particular employer are likely to benefit from a union’s work, including those who are not members of the union. This is known as the “free rider problem.” Some union-shop CBAs, rather than requiring all employees to join the union, require workers who do not want to join to pay an “agency fee.”
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New Jersey employment laws provide numerous protections for employees, including minimum wage, overtime, and prohibitions on discrimination, harassment, and retaliation. In order to qualify for the protections offered by New Jersey’s employment statutes, however, an individual must meet the legal definition of an “employee.” New Jersey uses an expansive definition of the term based on unemployment law. See Hargrove v. Sleepy’s, LLC, 106 A.3d 449 (N.J. 2015). A recent decision from a New York appellate court uses a narrower definition of “employee” in an unemployment claim brought by a “gig economy” worker. Matter of Vega, 2018 NY Slip Op. 4610 (App. Div., 3d Dept.).Legal News Gavel

Incorrectly or falsely designating a worker as an independent contractor is commonly known as “employee misclassification.” The various employment statutes at the state and federal levels contribute to the problem by lacking a consistent and distinct definition of “employee.” One statute’s definition of the term might differ from another statute, or a statute may lack any useful definition. Courts often step in to provide definitions that could apply to certain types of claims, or all claims in which employee classification is an issue.

The ruling in Hargrove involved alleged violations of state wage laws by a company that employed the plaintiff and others as delivery drivers. The New Jersey Supreme Court ruled that courts should apply a three-part definition found in New Jersey’s unemployment laws. This definition states that an individual is an employee unless:  (1) they are “free from control or direction over the performance of” their job; (2) the job they perform is “either outside the usual course of the [employer’s] business, or it “is performed outside of all the [employer’s] places of business”; and (3) the individual works “in an independently established trade, occupation, profession or business.” N.J. Rev. Stat. § 43:21-19(i)(6).

The Sarbanes–Oxley Act of 2002 (SOX) regulates a wide range of activities by publicly traded companies. Section 806 of SOX, 18 U.S.C. § 1514A, protects whistleblowers against retaliation for reporting suspected legal violations. It allows employees to file a complaint with the U.S. Department of Labor (DOL), potentially followed by a lawsuit in federal district court. The DOL’s Administrative Review Board (ARB) has held that a whistleblower need only have a “reasonable belief” that a legal violation has occurred to engage in “protected activity” under § 806 of SOX. Sylvester v. Parexel Int’l, ARB Case No. 07-123 (ARB, May 25, 2011). The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, recently ruled on the question of “reasonable belief” in an SOX whistleblower claim, which could have an impact on New Jersey whistleblowers. Westawski v. Merck & Co. Inc., No. 16-4075, slip op. (3d Cir., Jun. 27, 2018).Legal News Gavel

The whistleblower protection provisions of § 806 apply to companies that have securities registered under the Securities Exchange Act of 1934, or that are required to file reports under that statute. Employees who report suspected fraud, wire fraud, bank fraud, or securities fraud, or who cooperate in an investigation of one of these alleged offenses, are entitled to protection. 18 U.S.C. § 1514A(a), citing 18 U.S.C. §§ 1341, 1343, 1344, and 1348. An employee must file a complaint with the DOL. If the DOL has not issued a ruling within 180 days, the employee can usually file a complaint in federal court. Available damages include reinstatement, back pay, court costs, and attorney’s fees.

The statute requires that the whistleblower “reasonably believes” that their employer has violated one or more of the enumerated federal fraud statutes. Id. at § 1514A(a)(1). The ARB has interpreted this requirement as having two parts:  (1) the employee has “a subjective belief that the complained-of conduct constitutes a violation of relevant law”; and (2) “the belief is objectively reasonable.” Sylvester at 14. As long as the employee’s belief is both subjectively and objectively reasonable, the ARB held, their actions are protected even if no legal violations actually occurred.
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Paid sick leave is a controversial subject throughout the country. Only a handful of states require it in some form. Federal law only mandates unpaid leave. Employers tend to oppose paid sick leave laws, since these laws require them to pay their employees for time they are not at work. Advocates of paid sick leave laws point out the reality that people get sick, that they need to be able to take time to rest and recover, and that many people will come to work sick if they know that the alternative is losing needed income. Sick people who come to work instead of staying home are rarely as effective at their jobs during that time, and they risk making even more people sick. New Jersey joined the small number of states that mandate paid sick leave earlier this year, when the Legislature passed the New Jersey Paid Sick Leave Act (NJPSLA). When it takes effect on October 29, 2018, this law will apply to all employers in the state, regardless of number of employees.Legal News Gavel

According to the National Conference of State Legislatures (NCSL), only 10 states, including New Jersey, and the District of Columbia had mandatory paid sick leave as of May 2018. Federal law contains no provisions for mandatory paid leave for any purpose, including sick leave and parental leave. Internationally, the United States is an outlier among developed nations. A 2009 study by the Center for Economic and Policy Research (CEPR) compared paid sick leave policies in 22 countries. With the exceptions of Japan, Australia, and New Zealand, all of the countries are located in Europe or North America. The CEPR found that the U.S. is one of only three countries, along with Canada and Japan, with no paid sick leave whatsoever at the national level. At the opposite end of the spectrum, Luxembourg and Norway provide paid sick leave for up to 50 days for serious medical conditions like cancer.

The NJPSLA differs from most state paid sick leave laws in the breadth of its coverage. It defines an “employer” as “any…entity that employs employees in the State,” with no exception for small businesses. By contrast, the federal Family and Medical Leave Act (FMLA) only applies to employers with 50 or more employees, and to employees who have worked a minimum of 1,250 hours for their employer in the last 12 months. The FMLA also differs in the sense that it only requires unpaid leave.

Legal News GavelFederal and state employment laws in New Jersey protect workers’ right to overtime compensation. Employers can violate employees’ rights under these statutes in a variety of ways, the most obvious of which involves a requirement to work extra, unpaid hours. Violations can occur whenever an employee’s total compensation for a pay period does not include the overtime rate of time-and-a-half. Some employees work at multiple locations, which might be owned and operated by different companies. If the two companies have sufficient ties to one another, they could be deemed “joint employers,” who must collectively provide overtime compensation to that employee. A collective action currently pending against a New Jersey hospital and other defendants includes this allegation. Layer v. Trinity Health Corp. et al, No. 2:18-cv-02358, complaint (E.D. Pa., Jun. 6, 2018).

The federal Fair Labor Standards Act (FLSA) requires employers to pay overtime compensation to non-exempt employees, at a rate of one-and-a-half times their regular wage for any hours in a week over forty. 29 U.S.C. § 207(a)(1). The statute identifies numerous exemptions, including people who work “in a bona fide executive, administrative, or professional capacity.” Id. at § 213(a)(1). Non-exempt employees are, very broadly speaking, hourly workers who do not hold a managerial position. Employees may file suit against their employers for alleged violations of overtime rules on their own behalf, or on behalf of “themselves and other employees similarly situated.” Id. at § 216(b). A claim brought on behalf of other employees is known as a “collective action,” and is similar in many ways to a class action.

Employees can work for more than one employer. For many people, holding down more than one job is an unfortunate necessity. In most cases, the two employers are legally separate from one another, and are only obligated to pay an employee overtime if their total time working for that employer exceeds forty hours. Two or more employers may, however, be deemed “joint employers,” meaning that they are jointly liable for overtime compensation when an employee’s total work time at any of their locations exceeds forty hours in a week. The determination of whether employers are “joint” or not “depends upon all the facts in the particular case.” 29 C.F.R. § 791.2(a). If an employee’s work for one employer “is not completely disassociated” from their work for another employer, all of their work for the two employers could be “considered as one employment for purposes of the [FLSA].” Id.
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