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COVID-19 RESOURCE CENTER FOR NJ EMPLOYEES

Employers in New Jersey use increasingly high-tech methods to monitor their employees throughout the work day. Some of these methods raise concerns about employee privacy, especially systems that collect biometric data. “Biometrics” refers to the automated use of physical characteristics to identify individuals. For example, many smartphones give users the options of unlocking their devices with fingerprint or facial recognition software. Some employers use this kind of technology to control access to worksites or track employees’ time. This means that each time an employee passes a checkpoint or enters the employer’s premises, the employer captures an image of their face, fingerprint, or other unique identifying feature. Employees have an interest in knowing how employers are using this information, and how securely they are storing it. Currently, no law in New Jersey regulates the collection, storage, and use of biometric data. A bill pending in the New Jersey Assembly would address this issue and provide a path forward for New Jersey employment lawyers and their clients.

Under New Jersey law, employers may not intrude into areas where employees have a reasonable expectation of privacy. Unreasonable searches of private areas in the workplace, such as an employee’s locker, may violate an employee’s legal rights. Surveillance of phone or computer use is allowed by law, as long as it is reasonably related to the employer’s business. Video monitoring of common areas is not unusual, particularly in retail or warehouse settings. Intrusive surveillance that serves no legitimate business purpose could be unlawful. In extreme cases, such as video monitoring of a restroom or changing area, it could even be criminal.

Biometric surveillance is, in one sense, an extension of video surveillance. Since it results in the collection of data that could be used to identify specific individuals, it is also analogous to the collection of Social Security numbers and other information best kept private. Few states currently have laws addressing the collection of biometric data. Illinois enacted the first such law, the Biometric Information Privacy Act (BIPA), in 2008. Other states have passed similar laws since then. BIPA remains the only law that allows private causes of action for violations.
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New Jersey employment laws ensure that employers pay minimum wage to all non-exempt employees, as well as a greater rate of pay for overtime hours. These laws only apply to “employees.” Employee misclassification happens when an employer wrongly classifies an employee as an “independent contractor.” State law has a clear definition of “employee” for the purposes of wage and hour law, which sets strict limits on employers’ ability to designate someone as an independent contractor. At the federal level, the definition is not as clear. Beginning in late 2020, the U.S. Department of Labor (DOL) developed a rule defining “employee” and “independent contractor” for the Fair Labor Standards Act (FLSA). The final rule, published in January 2021, was far more favorable to employers than New Jersey’s rule. When the new presidential administration took over in late January, it postponed the effective dates of all new administrative rules. The DOL has since sought to withdraw the new rule.

The FLSA requires employers to pay their non-exempt employees a minimum wage of $7.25 per hour, and to pay them at one-and-a-half times their usual rate for work that exceeds forty hours in a week. See 29 U.S.C. §§ 206(a)(1), 207(a). Exemptions include people employed in professional or executive capacities, and various other specific jobs. Id. at § 213. The statute is specific about only applying to “employees,” but it does not provide particularly clear definitions of “employ” and related terms. It defines “employ” as “to suffer or permit to work,” and “employee” as “any individual employed by an employer,” with some exceptions. Id. at §§ 203(e)(1), (g).

New Jersey law states that employers should consider their workers to be employees unless they meet all three parts of the “ABC test,” named for the definition of “employee” found in N.J. Rev. Stat. §§ 43:21-19(i)(6)(A), (B), and (C):
A. The worker, not the employer, controls the time and manner of their work;
B. The worker’s services are either not part of the employer’s “usual course of business,” or they do their work away from the employer’s regular business premises; and
C. The worker has their own “independently established” business operation.
This definition tends to favor classification as an employee. The New Jersey Supreme Court adopted it for wage and hour claims in a 2015 decision. State regulators and the New Jersey Legislature have incorporated it further into state law.

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New Jersey Governor Phil Murphy signed a bill into law in February 2021 that creates a legal framework for the recreational use of cannabis by adults in the state. Voters paved the way for the new law when they approved Public Question 1 by a substantial margin on Election Day in 2020. The Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) establishes standards for licensing businesses to distribute and sell marijuana products for recreational use. It directs the New Jersey Cannabis Regulatory Commission (CRC) to work out the details through regulations. Medical marijuana has been legal in New Jersey since 2009, but the law was unclear about employee protections until the state legislature amended it in 2019. CREAMMA includes explicit protections against “adverse actions” by employers based on activity that is now legal. If you feel you’ve been treated unfairly by your employer over use of cannabis, please contact a New Jersey employment discrimination lawyer today.

The Compassionate Use Medical Marijuana Act (CUMMA) established a system for the production, distribution, sale, and possession of small amounts of marijuana for medical use under a doctor’s supervision. Section 14 of the law stated that nothing in the law “shall be construed to require…an employer to accommodate the medical use of marijuana in any workplace.” In early 2020, the New Jersey Supreme Court held that, despite this language, a person using medical marijuana in compliance with CUMMA could assert a claim for disability discrimination under the New Jersey Law Against Discrimination (NJLAD).

The New Jersey Legislature passed the Jake Honig Compassionate Use Medical Cannabis Act (CUMCA) in 2019, after the events that were the subject of the 2020 state supreme court ruling. CUMCA removed the language in § 14 about not requiring employers to accommodate medical cannabis use. It bars employers from discriminating against employees because they are registered medical marijuana users. It does not bar workplace drug testing, but states that employees who test positive for cannabis must have an opportunity to produce a prescription.

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The National Labor Relations Board (NLRB) is charged with enforcing the federal statute that governs employees’ right to organize, engage in collective bargaining, and engage in other related activities. Its General Counsel (GC) investigates alleged violations of both employees’ and employers’ rights. The members of the Board itself adjudicate complaints filed by employees, employers, and labor unions. The recent change in presidential administrations brought some changes to positions at the NLRB, including a new acting GC. At the beginning of February 2021, the acting GC issued a memorandum, GC 21-02, rescinding several memoranda from the previous administration. At least one of the rescinded memos could impact New Jersey employee claims and affect similar cases throughout the country. GC 18-04 interpreted a 2017 decision by the Board regarding complaints about employer handbook policies.

Section 7 of the National Labor Relations Act (NLRA), codified at 29 U.S.C. § 157, protects employees’ “right to self-organization,” to form or join labor unions, to engage in collective bargaining with their employers, “and to engage in other concerted activities” directed at these rights. Under § 8(a) of the NLRA, id. at § 158(a), employers may not restrain employees from exercising their rights under the statute, nor may they discriminate or retaliate against employees who engage in protected activities or complain about alleged violations.

The 2017 decision by the NLRB mentioned earlier dealt with a “facially neutral rule” in an employee handbook that allegedly violated workers’ rights under § 7. The rule in question restricted the use of cameras on the employer’s property. This included cell phones with cameras. An administrative law judge (ALJ) ruled that the rule violated § 8(a)(1) of the NLRA, finding that “employees ‘would reasonably construe’ the rule to prohibit Section 7 activity.”

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Arbitration agreements are a common feature in many employment contracts. Under an arbitration agreement, the employee and employer agree to submit any disputes to the arbitration process, either before or in place of filing a lawsuit. Advocates for employees’ legal rights tend to view arbitration as favoring employers for a variety of reasons. While both federal and state law generally favor enforcing arbitration agreements, New Jersey courts sometimes apply extra scrutiny to make sure they are fair to employees. A decision issued by the New Jersey Supreme Court (NJSC) in the summer of 2020 offers a cautionary example of how courts may follow the strict letter of the federal and state arbitration statutes, even when it might seem unfair to the employee. The Appellate Division had ruled in 2019 that an arbitration agreement was unenforceable under the law of contracts. In a 5-1 ruling, the NJSC reversed that decision.

Both federal and state law provide that arbitration agreements are presumed to be enforceable and irrevocable, unless a party can show “a ground that exists at law or in equity for the revocation of a contract.” 9 U.S.C. § 2, N.J. Rev. Stat. § 2A:23B-6. Even if, as is often the case, an employee has no opportunity to negotiate the specific terms of an arbitration agreement, courts will likely find it to be enforceable as long as there was a “meeting of the minds,” meaning that both parties knowingly agreed to all of the contract’s provisions.

In 2003, the NJSC ruled that an employee can only waive statutory rights, such as the right to a trial in a court of law, through “an explicit, affirmative agreement that unmistakably reflects the employee’s assent.” The court further held in 2014 that an arbitration agreement “must be clear and unambiguous” about an employee’s agreement “to arbitrate disputes rather than have them resolved in a court of law.”
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Both federal and New Jersey employment laws prohibit employers from discriminating against employees on the basis of religious affiliation, beliefs, or practices. Employers must accommodate employees’ religious practices to the extent that doing so is not an “undue hardship” on their business. As with many other areas of antidiscrimination law, what exactly constitutes an “undue hardship” is a matter of ongoing dispute. The New Jersey Law Against Discrimination (NJLAD) goes into some detail about certain types of accommodations employers must make for religious observances. Title VII of the Civil Rights of 1964 contains fewer details, but the U.S. Supreme Court has provided interpretation on several important points. Two petitions for certiorari currently pending before the court ask it to reconsider its own precedent regarding employers’ obligation to accommodate religious practices. The 1977 decision Trans World Airlines, Inc. v. Hardison (“TWA”) held that “requir[ing an employer] to bear more than a de minimis cost” to accommodate an employee’s religious practice “is an undue hardship.”

Title VII prohibits discrimination on the basis of religion, while the NJLAD uses the term “creed.” 42 U.S.C. § 2000e-2(a), N.J. Rev. Stat. § 10:5-12(a). The NJLAD does not offer a specific definition of “creed.” Title VII defines “religion” as “all aspects of religious observance and practice,” up to the point that an employer cannot accommodate an employee because of “undue hardship.” 42 U.S.C. § 2000e(j).

The Supreme Court’s ruling in TWA addresses a question specifically mentioned by the NJLAD. State law expressly states that, subject to an “undue hardship” exception, an employer cannot require an employee to stay at work on a day that they “observe[] as [their] Sabbath or other holy day.” N.J. Rev. Stat. § 10:5-12(q)(2). In this context, an “undue hardship” involves:
– Excessive expense, difficulty, or interference with business operations; or
– Violation of a seniority system or collective bargaining agreement. Id. at § 10:5-12(q)(3).

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The Fair Labor Standards Act (FLSA) establishes a national minimum wage and sets standards for overtime compensation. While New Jersey has set a higher minimum wage than the federal rate, the FLSA still plays a critical role in many New Jersey wage and hour disputes. It allows workers to file “collective actions,” which are similar in many ways to class actions. A petition for certiorari is currently pending before the U.S. Supreme Court and asks the justices to address ambiguity in the FLSA’s provision on collective actions. The employer in the case filed the petition in August 2020, but both parties have asked the court to defer consideration of the petition while they engage in settlement negotiations. If they reach a settlement, the employer has indicated that it will withdraw the petition, meaning that the court will not hear the case.

The federal minimum wage has been at its current level, $7.25 per hour, since July 2010. See 29 U.S.C. § 206(a)(1)(C). The provisions regarding overtime have remained largely unchanged since Congress first enacted the statute in 1938. Employers must pay non-exempt employees at one-and-a-half times their regular rate for work time during a week that exceeds forty hours. Id. at § 207(a)(1).

Employers who violate the minimum wage or overtime provisions of the FLSA may be liable for the amount of unpaid wages, plus an equal amount as unliquidated damages. If, for example, an employer withholds $1,000 in overtime compensation from an employee, a court may order them to pay that employee $2,000 in damages. The FLSA allows an employee to file suit on their own behalf and for other “similarly situated” employees who have consented in writing to inclusion in the lawsuit. Id. at § 216(b). The statute does not define “similarly situated.”

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New Jersey employment laws protect whistleblowers who report alleged wrongdoing by their employers or who cooperate in investigations by providing evidence or testimony. Information provided by employees and others with knowledge of the inner workings of a business or organization is invaluable in helping law enforcement investigations of suspected unlawful activity. Many would-be whistleblowers hesitate to come forward, however, for fear of losing their jobs or facing other consequences in the workplace. Laws like New Jersey’s Conscientious Employee Protection Act (CEPA) prohibit employers from retaliating against employees who engage in certain protected activities. A lawsuit filed in late 2020 alleges that a New Jersey labor union retaliated against the plaintiffs for their support of a corruption investigation, along with other whistleblowing activities.

CEPA prohibits employers from taking “retaliatory action” against employees who engage in certain activities. The statute defines “retaliatory action” as an “adverse employment action taken against an employee,” including termination. N.J. Rev. Stat. § 34:19-2(e). Activities protected by CEPA include:
– Reporting, or threatening to report, activity that an employee reasonably believes is in violation of civil, administrative, or criminal law to a supervisor or government agency;
– Providing evidence or testimony to a government agency as part of an investigation of alleged unlawful activity; and
– Refusing to participate in an activity that the employee reasonably believes violates a civil or criminal statute or administrative rule, is otherwise fraudulent, or constitutes a threat to public safety or the environment. Id. at § 34:19-3.

The New Jersey Law Against Discrimination (NJLAD) prohibits retaliation against employees who report or oppose unlawful acts by their employers. It also prohibits derivative retaliation against employees who have “aided or encouraged any other person” asserting their rights under the law. Id. at § 10:5-12(d).

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Employers in New Jersey have a legal obligation to provide a reasonably safe work environment for their employees, free of not only discrimination and harassment but also unsafe conditions that pose a risk of injury or death. Multiple laws at both the state and federal levels address employers’ liability for employees’ workplace injuries. Many injuries fall under the state’s workers’ compensation law, which limits workers’ access to the courts except in cases involving “intentional wrongs.” As we near the start of the second year of the coronavirus pandemic, the courts are receiving numerous lawsuits filed by New Jersey workers and their families seeking to hold employers liable for injuries and deaths caused by the novel coronavirus. A lawsuit filed last summer in Hudson County, for example, alleges wrongful death and other claims against the state’s public transit authority on behalf of an employee who died of COVID-19 last spring.

The New Jersey workers’ compensation law is, in essence, a compromise between employees and employers. Employers pay into an insurance fund, similar to the funds that support the state’s unemployment and disability compensation systems. An employee who suffers a work-related injury on the job is guaranteed compensation from this fund without having to prove that their employer was at fault. In exchange, the employee waives their right to pursue greater damages in court. The one exception to this waiver of litigation rights applies when the injuries are the result of “intentional wrong.” N.J. Rev. Stat. § 34:15-8.

The workers’ compensation statute does not define the term “intentional wrong,” but various court decisions have offered some guidance. With regard to COVID-19, questions of legal liability are still largely hypothetical since New Jersey courts have yet to rule on any major disputes. Employers are sure to dispute whether COVID-19 constitutes a work-related injury, along with disputes over whether any intentional acts on their part caused an employee’s illness. Another factor, of course, could be efforts by some in the U.S. Congress to shield employers from liability for COVID-19 risks in the workplace.

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The coronavirus pandemic continues to hit New Jersey particularly hard, although some good news has appeared in the past few weeks. Two vaccines are gradually becoming available. Certain groups of people will receive the vaccine first, starting with healthcare workers. Eventually, the vaccine will become more widely available. This will raise a question that appears almost every flu season: Can New Jersey employers require their employees to get the COVID vaccine? The answer is, of course, complicated. Employees in some jobs are required by state law to get vaccinated against influenza. Most New Jersey workers are under no legal mandate regarding vaccines, but their employers may be able to require them. Much of this area of law remains unsettled. What little case law exists is based on flu vaccine refusals, so New Jersey’s courts have yet to apply it to COVID-19.

New Jersey Mandatory Vaccination Law

New Jersey has no statewide requirement for employees to receive vaccinations. Employees of any “general or special hospital, nursing home, or home health care agency” licensed by the state must receive an annual flu vaccine. N.J. Rev. Stat. § 26:2H-18.79. This law allows medical exemptions but no religious exemptions. Outside of healthcare, employers have discretion over whether to require vaccinations.

New Jersey Employment Discrimination Law

Two common objections to mandatory vaccines come from people who are unable to receive them for medical reasons and people who object to them on religious grounds.

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