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We are OPEN and PREPARED. In response to the COVID-19 pandemic, our Firm is utilizing telephone consultations whenever possible. We are equipped with technology for working remotely, as necessary, and are committed to continuing to serve our clients through this difficult time. Please connect with us on Facebook for the latest employment-related information dealing with COVID-19.

COVID-19 RESOURCE CENTER FOR NJ EMPLOYEES

The COVID-19 pandemic has now entered its ninth month in the United States. After extensive lockdowns in March and April 2020, cities and states around the country struggled with finding ways to reopen their economies without risking public health. Many New Jersey employees had to adapt quickly to a home office environment. Workers deemed “essential” had to continue reporting to their jobs, often with added safety measures intended to inhibit the spread of the novel coronavirus. Some of the new measures used by employers raise important questions about employee privacy rights in New Jersey.

New Jersey Workplace Privacy Laws

As a general rule, employees do not have an expectation of privacy when they are at work, on the clock, and using their employer’s property. Employers can, with some exceptions, access emails sent by employees using a company email address, or search employees’ desks and other areas in the workplace. Employees’ personal property, such as cell phones, purses, and wallets, are subject to greater legal protection.

New Jersey recognizes several common-law claims for privacy violations, including intrusion upon seclusion, which protects a person’s “private affairs or concerns.” With more workers doing their jobs remotely, often using videoconferencing technologies that allow employers to see into their homes, these concerns have become much more pressing.

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Both the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (NJLAD) protect workers against discrimination on the basis of disability. The definition of “disability” has changed over the years to encompass a wide range of conditions. The public’s understanding of addiction has begun to take psychological factors into account. This has led to questions about whether addiction may qualify as a disability under the ADA or the NJLAD. The Equal Employment Opportunity Commission (EEOC) recently reviewed the law surrounding disability discrimination as it relates to opioid use and addiction. If you feel you have been discriminated against for use of opioids, it would be prudent to discuss the matter with a New Jersey employment discrimination attorney to learn what rights you have under state and federal law.

What Do Federal and State Disability Discrimination Laws in New Jersey Say About Opioids?

Opioid addiction is a serious problem in New Jersey and throughout the U.S. The definitions of “disability” in both the ADA and the NJLAD leave open the possibility that some forms of addiction could be considered disabilities. See 42 U.S.C. § 12102(1), N.J. Rev. Stat. § 10:5-5(q). The ADA makes a specific exception, however, for individuals who are “currently engaging in the illegal use of drugs.” 42 U.S.C. § 12114(a).

Opioids and Disability Discrimination

The EEOC’s guidance document delves into the language of the ADA and the regulations implementing the law. It notes that the document does not have “the force and effect of law,” but rather represents its own interpretation of the ADA. It divides the analysis into three questions, the answers to which could lead to a viable claim for disability discrimination.

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The federal Fair Labor Standards Act (FLSA) sets a nationwide minimum wage and a standard for overtime compensation. While some states, including New Jersey, have enacted their own minimum wage laws, both federal and New Jersey overtime laws require employers to pay non-exempt workers at one-and-a-half times their regular rate of pay when they work more than forty hours in a week. This applies to workers who receive an hourly wage and those who are salaried, as long as they are not exempted by the FLSA. The Wage and Hour Division (WHD) of the U.S. Department of Labor has developed rules for determining the regular rate of pay of salaried employees. In August 2020, it issued an opinion letter, designated FLSA2020-14, which answers questions about the “fluctuating workweek” (FWW) method of calculating overtime. Workers in a dispute with their employer about overtime rules would be wise to consult with a New Jersey employment lawyer as soon as possible.

The overtime provisions of the FLSA state that employers must pay overtime “at a rate not less than one and one-half times the regular rate at which [an employee] is employed.” 29 U.S.C. § 207(a)(1). These provisions do not apply to employees deemed “exempt” by the FLSA. This includes individuals “employed in a bona fide executive, administrative, or professional capacity,” certain employees in the fishing and agriculture industries, and others. Id. at § 213(a).

Calculating overtime pay is rather straightforward for workers who receive an hourly wage. If an employee receives $12 per hour for a forty-hour workweek, their overtime rate of pay would be $18 per hour. When a non-exempt employee receives a fixed salary, the WHD has developed different systems for those who work a fixed number of hours and those whose hours vary from one week to the next. An employee’s regular rate of pay is equal to their weekly salary divided by the number of hours they work, which is easy to do if they always work the same number of hours. See 29 C.F.R. § 778.113(a).

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The number of people working remotely — meaning away from their employer’s place of business — in New Jersey and around the country grew considerably after the pandemic began earlier this year. Many people continue to work remotely or virtually, while others have returned to something resembling their earlier workplace. It is probably too early to tell how the pandemic has changed, and will change, the workplace for people who are able to do their jobs at home. In August 2020, the Wage and Hour Division (WHD) of the U.S. Department of Labor issued a bulletin addressing questions about overtime laws and regulations. Field Assistance Bulletin No. 2020-5 (FAB 2020-5) advises employers on how to track remote employees’ time. It also offers useful guidance for remote non-exempt workers about what constitutes “work time” when they are not at an office or worksite.

Compensable Overtime

The Fair Labor Standards Act (FLSA) requires employers to pay non-exempt employees at a higher rate for any work performed beyond forty hours in a week. 29 U.S.C. § 207(a)(1). The overtime rate of pay is one-and-a-half times an employee’s usual wage. If an employee makes $20 per hour, and works fifty hours in a week, they should receive $30 per hour for their ten hours of overtime. The FLSA allows employees to file suit for damages if an employer violates the overtime provisions.

Certain employees are exempt from the FLSA’s overtime provisions. Workers in many exempted categories are unlikely to be able to do their jobs remotely, such as people employed in agriculture or fishing, amusement park employees, and seamen on foreign vessels. See id. at §§ 213(a)(3), (5), (6), (8). People who work “in a bona fide executive, administrative, or professional capacity,” however, might be able to telecommute, and are also exempt from overtime laws. Id. at § 213(a)(1).

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Both federal and New Jersey employment laws set restrictions on how and when employers may fire their employees, such as restrictions on discriminatory or retaliatory firings. Prior to a mass layoff of workers, many employers must provide advance notice. Their employees may be able to file suit if they fail to follow the law’s requirements. The COVID-19 pandemic brought an unprecedented number of layoffs and furloughs. We are nearing the six-month mark since the pandemic first hit this country. Courts have never ruled on a case that presents the particular circumstances we see right now. The New Jersey Legislature amended its law in early 2020 to provide additional remedies for workers, but then amended it again during the pandemic to exempt many layoffs from coverage by the law.

The Federal WARN Act

The Worker Adjustment and Retraining Notification (WARN) Act of 1988 requires employers with one hundred or more employees to notify employees before large layoffs or plant closures.

Notice Requirements

An employer must provide written notice to each “affected employee” or their representative, such as a labor union, at least sixty days before an event that will result in significant “employment loss.” The statute defines “employment loss” to include:
– Termination of employment that is neither voluntary nor for cause;
– A reduction in hours of over fifty percent for six months; or
– A layoff that continues for more than six months.
In the current situation, the WARN Act could apply to employers who furloughed fifty or more employees for more than six months, or who substantially reduced their hours.

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The hiring process is growing increasingly automated, as employers in New Jersey and around the country turn to artificial intelligence (AI) that uses hiring algorithms. This could be a time-saving measure for employers, helping them sort through large numbers of job applications, but it can also potentially result in violation of antidiscrimination laws. While it might seem unlikely that employers would use these algorithms for deliberate discrimination against categories protected by laws like the New Jersey Law Against Discrimination, not all unlawful employment discrimination requires discriminatory intent. AI relies on the information it receives from human users. When an AI bases hiring recommendations on existing data or past hiring patterns, it could end up perpetuating inequities. One question that courts are only beginning to address that could have an impact on New Jersey employment discrimination cases is how to determine liability when a computer engages in discrimination on an employer’s behalf.

Disparate Impact Discrimination

A policy or practice with no discriminatory intent can still violate antidiscrimination laws if it has a disparate impact on members of a protected group when compared to others. The U.S. Supreme Court first recognized disparate impact discrimination in Griggs v. Duke Power Co., 401 U.S. 424 (1971). The employer, located in North Carolina, required applicants for certain jobs to have a high school diploma and to pass an IQ test. The policy had a substantially disparate impact on Black applicants. The court found that the employer’s policy was not “reasonably related” to the jobs in question, and that it therefore violated Title VII of the Civil Rights Act of 1964.

Discrimination in, Discrimination Out

AI algorithms are designed to simulate the functions of the human brain. They cannot “think” on their own — at least not yet. Instead, they process information according to algorithms, all provided by humans. Hiring AIs consider metrics like education and work experience. The most sophisticated hiring tools available right now can even analyze video recordings of job interviews to evaluate candidates.

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The National Labor Relations Act (NLRA) protects the rights of employees to engage in activities related to organizing and collective bargaining. Workers alleging infringement of these rights can file a charge with the National Labor Relations Board (NLRB) and may wish to discuss their situation with a New Jersey employment attorney. In November 2019, the NLRB ruled on a charge alleging that a nonprofit organization’s executive director interfered with efforts to advocate on behalf of unpaid interns. The NLRB’s decision is notable for New Jersey workers in at least two ways. First, it demonstrates how the NLRA can protect workers before any significantly adverse actions, such as termination, occur. Second, the decision addresses the limits of the NLRA’s protection with regard to individuals who are not considered employees, such as unpaid interns.

Section 7 of the NLRA protects a wide range of activities related to “mutual aid or protection” of fellow employees. This includes specific actions like forming or joining a labor organization, as well as “other concerted activities.” Under § 8(a)(1) of the statute, employers may not “interfere with, restrain, or coerce employees” with regard to any of the rights protected by § 7. The NLRA does not provide a clear definition of “employee.” Prior decisions by the NLRB have held that “receiv[ing] or anticipat[ing]…economic compensation” is an essential element to be considered an “employee” under the statute.

The respondent employer is a nonprofit organization headquartered in New York City, with several offices elsewhere around the country. According to the NLRB’s decision, the respondent’s Washington, D.C. office usually has twenty-five employees and fifteen interns. The interns are typically students who volunteer to work for the organization for one semester, and who receive no compensation for their work.

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The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination on the basis of a wide range of factors. In late 2001, the New Jersey Legislature passed a bill that adds display of the American flag to the list of protected categories. The law allows for New Jersey employment discrimination lawsuits to be filed, but also provides a defense for employers and sanctions for claims that lack “substantial justification.” In the eighteen years since the bill became law, it does not appear that New Jersey courts have issued any published decisions. This leaves portions of the law’s language up to interpretation.

Flag Discrimination Under the NJLAD

The “flag discrimination” statute, N.J. Rev. Stat. § 10:5-12.6, prohibits discrimination against an employee “for displaying the American flag on the employee’s person or work station.” Employers could still enact general bans on the display of symbols in the workplace, or possibly even more specific policies that focus on particular symbols. The statute appears to address employers who single out employees.

The employer could be liable for actual damages, punitive damages, attorney’s fees, and court costs. Unlike other discrimination claims under the NJLAD, an employee who brings a flag discrimination claim “without substantial justification” could be liable for the employer’s attorney’s fees and court costs.

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Late last year, the National Labor Relations Board (NLRB) issued an important ruling regarding restrictions on the use of company email accounts by employees for non-work purposes. This ruling reverses a 2014 NLRB decision, which held that employment policies restricting the use of company email for union organizing purposes presumptively violate the National Labor Relations Act (NLRA). It largely reinstates another NLRB ruling, this one from 2007, which allowed a ban on company email use. While the 2019 decision is a setback for employees’ workplace rights, it is not a complete return to the situation in 2007. The NLRB left some exceptions that would allow use of company email for union organizing purposes when employees have no other “reasonable means…to communicate with one another.” If you have questions concerning use of company email, contact a New Jersey employment attorney to learn more about how federal law may affect you.

The NLRA protects workers’ labor organizing rights and regulates the relationship between labor unions and employers. Section 7 of the statute, codified at 29 U.S.C. § 157, states that employees have the right to organize, to form or join labor unions, to engage in other “concerted activities” related to organizing, and to refrain from any of those activities. Section 8(a), found at 29 U.S.C. § 158(a), prohibits employers from interfering with those rights, restraining employees’ ability to exercise their rights, or discriminating against an employee for engaging in protected activities.

The 2007 NLRB decision held that “employees have no statutory right to use [an employer’s] e-mail system for Section 7 purposes.” The employer maintained a policy that “prohibit[ed] the use of e-mail for all ‘non-job-related solicitations.’” The Board held that employers’ property rights in their email systems allowed them to restrict non-work-related uses, including activities otherwise protected by the NLRA.

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The U.S. Supreme Court issued a landmark decision on June 15, 2020 regarding employment discrimination on the basis of sexual orientation and gender identity or gender expression. Many state laws, including the New Jersey Law Against Discrimination include both of these as separate categories in addition to sex or gender. While Title VII of the Civil Rights Act of 1964 does not expressly include either, the Supreme Court’s 6-3 ruling in Bostock v. Clayton County, Georgia holds that Title VII’s prohibition on sex discrimination includes both categories. Justice Gorsuch’s majority opinion applies textual analysis to Title VII to determine that an employer that fires or otherwise discriminates against someone because of their sexual orientation, or because they are transgender, has discriminated against them because of sex. If you feel you have suffered discrimination on the basis of sex, it is recommended that you contact a New Jersey sex discrimination attorney as soon as possible.

Sex Discrimination Under Title VII

The meaning of “sex,” as used in Title VII, has grown over the years through both legislation and court decisions. Sex discrimination under Title VII includes discrimination on the basis of pregnancy thanks to the Pregnancy Discrimination Act of 1978. It has included sexual harassment since the Supreme Court’s 1986 decision in Meritor Savings Bank v. Vinson.

The majority opinion in Bostock identified three decisions that also expanded the meaning of sex discrimination under Title VII:
– In Phillips v. Martin Marietta Corp. (1971), the court found that even though the employer hired more women than men overall, its policy against hiring mothers of young children violated Title VII.
– A requirement that women pay more into a pension fund than men because of longevity statistics constituted sex discrimination, according to the court’s ruling in Los Angeles Dept. of Water and Power v. Manhart (1978).
– The court found that Title VII prohibits sexual harassment between members of the same sex in Oncale v. Sundowner Offshore Services (1998).

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