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COVID-19 RESOURCE CENTER FOR NJ EMPLOYEES

The Resnick Law Group achieved a major victory for one of our clients earlier this month, when the New Jersey Supreme Court ruled that she did not have to show an “adverse employment action” in order to bring a claim under New Jersey disability discrimination law. The plaintiff alleged that her employer failed to provide a reasonable accommodation for her, and that this resulted in life altering injuries to her. The court also ruled that the claim was not barred by the state’s workers’ compensation law.

The New Jersey Law Against Discrimination (NJLAD) protects workers against discrimination on the basis of disability. It defines this term very broadly to include illnesses that are “demonstrable…by accepted clinical or laboratory diagnostic techniques.” The text of the NJLAD itself does not specifically require employers to make reasonable accommodations for employees with disabilities, but the New Jersey Administrative Code requires accommodations as long as they do not present an “undue hardship” for the employer. Failure to provide an accommodation is an “unlawful employment practice” under the NJLAD.

One question before the New Jersey Supreme Court was whether a plaintiff has to show an adverse employment action in order to make a claim for failure to accommodate a disability. An “adverse employment action” has typically been defined as a termination, suspension, or demotion. For the first time however, the high court decided that employees that suffer from a disability and do not necessarily fall into the above categories are also entitled to relief, and determined that an “adverse employment action” is not required to be shown in a reasonable accommodation case.
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New Jersey’s employment laws protect workers from a wide range of concerns. They guarantee payment of a minimum wage and compensation for overtime work. They prohibit discrimination on the basis of factors like race, religion, gender, disability, military service, sexual orientation, gender identity, and more. They require reasonable accommodations for pregnant employees and employees who are nursing newborns. These protections apply to job applicants as well as employees, with the goal of ensuring a fair hiring process with opportunities for as many people as possible. Enforcing these rights may require the assistance of an employment lawyer with experience in New Jersey’s legal system. The following is the first installment in an overview of New Jersey laws protecting job seekers, to help you understand your rights.

Employment Discrimination

Employers may not subject employees or job applicants to discriminatory treatment based solely or primarily on certain factors or characteristics. This includes refusing to hire someone because they are part of a protected group. For a job applicant turned down for a job, it can be difficult to prove what motivated an employer’s decision. An employment discrimination lawyer can help build a case under state law.

Protected Categories

The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination on the basis of the following factors:
– Race;
– Religion;
– Gender;
– Age;
– Disability;
– Pregnancy or breastfeeding;
– Marital, civil union, or domestic partnership status;
– Sexual orientation;
– Gender identity and gender expression;
– Military service obligations;
– Nationality or national origin; and
– Genetic information, including refusal to take a genetic test.
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As the COVID-19 pandemic shows signs of winding down, and New Jersey lifts many of the restrictions that have been in place for over a year, employers across the state report that they cannot find enough workers for their businesses. Some employers, rather predictably, blame expanded unemployment benefits. That might be one possible explanation, but it alone does not explain the reported worker shortage. Many of the industries reporting problems finding enough employees, to be blunt, do not have the best track records when it comes to fair wages, workplace safety, and other things that workers should be able to expect from their employers. Federal and New Jersey employment laws guarantee various protections for workers, and the fact that people are not hurrying to return to certain workplaces might serve as a reminder that maintaining these legal protections is an ongoing struggle.

Workers’ Rights Under Federal and New Jersey Law

Statutes at the state and federal level guarantee many New Jersey workers a minimum wage. They also protect workers’ right to a workplace free of discrimination, harassment, and unreasonable danger.

Minimum Wage

The Fair Labor Standards Act (FLSA) has set the federal minimum wage at $7.25 per hour since 2010. 29 U.S.C. § 206(a)(1)(C). For tipped employees, which include many restaurant workers, employers must pay a base wage of $2.13 per hour. Id. at § 203(m)(2), 29 C.F.R. § 531.59.
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Federal law protects workers’ right to organize for the purpose of negotiating with their employers, such as by joining or forming a labor union. Some employers look for creative ways to discourage their employees from organizing. The National Labor Relations Act (NLRA) prohibits employers from interfering with activity related to labor organizing, but it often provides leeway allowing employers to discourage workers without quite reaching the level of unlawful coercion. New Jersey employment law is generally favorable to unions, but employers in this state can still take advantage of gaps in the NLRA’s protections. A bill currently pending in the U.S. Congress, the Protecting the Right to Organize (PRO) Act of 2021, would amend the NLRA to include far greater protections for workers. The House of Representatives passed it in March 2021, and it awaits action by the Senate.

Section 7 of the NLRA, codified at 29 U.S.C. § 157, states that employees have the right to organize themselves in order to bargain collectively with their employers. They may do this by joining an existing labor union, or they can form a union of their own. The law also protects workers’ right to engage in “concerted activities” related to labor organizing. Courts have taken a broad view of what counts as protected concerted activity.

The NLRA’s restrictions on employer actions are found in § 8(a) of the law, or 29 U.S.C. § 158(a). Employers may not “interfere with, restrain, or coerce employees” who are exercising their rights under § 7. They also may not discriminate or retaliate against employees because of their protected activities.
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The minimum wage is the lowest amount that an employer can pay to an employee under federal and state law in New Jersey, provided that employee is not exempted from laws governing wages and hours of work. The New Jersey Legislature has established a minimum wage for the state that is greater than the federal rate. Employee advocates have sought amendments to federal law that would raise the minimum wage from its current level of $7.25 per hour to $15 per hour. These efforts have not been successful, but there is good news for some workers in New Jersey. The White House issued an executive order (EO) that will raise the minimum wage for federal government contractors to $15 per hour. The EO will take effect in early 2022. If you are concerned that your employer is not paying you the minimum wage, reach out to a New Jersey employment attorney to learn more about your rights.

Federal Minimum Wage

Congress first established a nationwide minimum wage in June 1938, when it passed the Fair Labor Standards Act (FLSA). The first minimum wage was $0.25 per hour. Congress has amended the FLSA multiple times to raise the minimum wage. The last time this happened was the Fair Minimum Wage Act of 2007, which raised the minimum wage to $7.25 per hour by 2010. See 29 U.S.C. § 206(a)(1)(C).

Based solely on inflation, the original minimum wage of $0.25 per hour would equal about $4.73 today. The overall cost of living has increased more than that, though, and critics of the federal minimum wage argue that $7.25 per hour is not enough to support most individuals, let alone families.
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The COVID-19 pandemic has had a devastating effect on New Jersey’s employment landscape for more than a year. Congress passed several bills in 2020 intended to help people impacted by the pandemic, both medically and economically. The Families First Coronavirus Response Act (FFCRA), which became law in March 2020, provided paid sick leave and paid and unpaid family leave for people who were either directly affected by the virus, or who were caring for one or more affected family members. These provisions expired at the end of 2020. The American Rescue Plan Act (ARPA) became law in March 2021, and includes extensions and expansions of both family leave and paid sick leave.

The FFCRA created a new federal system for paid sick leave, and expanded the provisions for leave under the Family and Medical Leave Act (FMLA). The law required most employers with fewer than five hundred employees to provide emergency paid sick leave (EPSL) to workers who could not come to work, in person or virtually, for reasons related to the COVID-19 pandemic, including
– Quarantine on the orders of a government official, or the recommendation of a doctor;
– Symptoms of COVID-19;
– Caring for a family or household members who is subject to a quarantine order or recommendation; or
– Caring for a child whose school was closed due to the pandemic.

EPSL covered an employee’s regular rate of pay, up to a maximum of either $511 per day or $5,110 total. Employees could take up to eighty hours of paid leave. Employers received a credit against the Social Security portion of their payroll taxes for paid leave provided to their employees.
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New Jersey is an “at will employment” state, meaning that employers can fire an employee for any reason, or no reason at all, provided that they do not violate the New Jersey Law Against Discrimination (NJLAD) or other applicable laws or regulations. Private employers are subject to laws like the NJLAD and any contractual relationships they have with their workers. Public employers, including many government entities at the city, county, and state level in New Jersey, may also be bound by constitutional protections for due process and civil rights. A recent settlement between a New Jersey public school district and a former teacher illustrates how public employers may have additional obligations to their employees. The former teacher alleged that the school district scapegoated her for a controversy over the alleged censorship of a student’s yearbook photo. She claimed violations of her free speech and due process rights.

Both the U.S. and New Jersey Constitutions protect certain civil rights against infringement by the government. This may include infringement of employees’ civil rights by government employers. The First Amendment to the U.S. Constitution protects the right to free speech. Section 6 of the New Jersey Constitution specifically states that “[e]very person may freely speak, write and publish his sentiments on all subjects.” The Fourteenth Amendment guarantees due process and equal protection at all levels of government.

These protections would not be worth much without some method of enforcement. The New Jersey Civil Rights Act (NJCRA) allows individuals to file suit against the government for civil rights violations by government agents or employees. See N.J. Rev. Stat. § 10:6-2. This law is similar to § 1983, the federal statute that allows lawsuits for deprivation of civil rights.
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Workers are often best able to negotiate with their employers for better pay, safer or improved working conditions, and other features of employment when they can do so as a group. Many employers prefer, however, that their employees not do this. Federal and New Jersey labor laws protect workers’ right to organize for various purposes, including advocacy on co-workers’ behalf. The National Labor Relations Board (NLRB) investigates and adjudicates alleged violations of workers’ rights under federal law. A recent investigation by the NLRB found that a major online retailer violated the rights of two workers who advocated for better working conditions during the COVID-19 pandemic in 2020. While it is not a formal decision by the Board, it could offer guidance to workers advocating for change at employers in New Jersey and around the country. If you have concerns regarding wage or labor practices at your place of employment, consider reaching out to a New Jersey employment lawyer to discuss your situation.

Section 7 of the National Labor Relations Act (NLRA), found at 29 U.S.C. § 157, guarantees the right of employees to “self-organization.” They can join an existing labor union or form their own. They can use collective bargaining procedures in negotiations with their employers. Finally, they can “engage in other concerted activities” related to “collective bargaining or other mutual aid or protection.” The term “concerted activities” can cover a broad range of acts.

Under § 8(a)(1) of the NLRA, id. at § 158(a)(1), an employer commits an “unfair labor practice” if they restrain or interfere with any activities that are protected by § 7. Section 8(a)(3) bars employers from discriminating against employees because of “membership in any labor organization.” New Jersey has even more extensive protections for employee organizing. See, e.g. N.J. Rev. Stat. § 34:13A-5.3, 34:13B-2.
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New Jersey employment laws bar discrimination based on disability. An employer cannot fire an employee or subject them to other adverse actions because of an injury, illness, or other condition that significantly affects their lives. State law uses a broad definition of “disability” that includes physical and mental conditions. Two lawsuits currently pending in New Jersey’s federal district court allege disability discrimination based on use of prescribed medication. One suit involves a plaintiff with a prescription for medical marijuana. The other involves an amphetamine-based medication used to treat attention deficit hyperactivity disorder (ADHD). The defendant in both cases is a major online retailer that operates multiple warehouses and distribution centers in New Jersey.

“Disability,” according to the New Jersey Law Against Discrimination (NJLAD), includes “any mental, psychological, or developmental disability…which prevents the typical exercise of any bodily or mental functions,” or which can be identified “by accepted clinical or laboratory diagnostic techniques.” N.J. Rev. Stat. § 10:5-12(q). The statute requires employers to make reasonable accommodations for employees’ disabilities. Failure to do so is an unlawful practice under the NJLAD.

New Jersey passed a law in 2009 authorizing the distribution and possession of small amounts of marijuana for medical purposes with a doctor’s prescription. As originally written, the law stated that it did not require employers “to accommodate the medical use of marijuana in any workplace.” It was not clear whether this meant the literal use of marijuana while at work, or if it allowed employers to enforce policies regarding marijuana use regardless of an employee’s medical needs. The New Jersey Supreme Court ruled in 2020 that a plaintiff could bring a disability discrimination claim under NJLAD based on lawful medical marijuana use. The New Jersey Legislature also amended the statute to remove the language about employers and accommodations.
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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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