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New Jersey employment law protects workers in this state by requiring payment of a minimum wage and overtime, prohibiting discrimination and harassment, and setting standards for workplace safety, among many other measures. As with anything, there is always room for improvement. Recent developments in New Jersey’s warehousing industry may demonstrate an area where improvement is needed. E-commerce has vastly increased the demand for warehouse space and workers to operate fulfillment centers. New Jersey is reportedly home to over one billion square feet of warehouses, which employ tens of thousands of people. An incident at one fulfillment center in late 2018, which sent two dozen employees to the hospital, has led to demands for improvements in working conditions. A report from the labor organization Warehouse Workers Stand Up (WWSU) calls on New Jersey lawmakers to help push companies operating warehouse distribution centers to adopt a ten-point “code of conduct.”

The WWSU’s proposed code of conduct covers numerous areas of employment law, including wage and hour laws, workplace safety, medical leave, and labor organizing. State and federal laws address many of these areas to some extent, although many gaps and loopholes exist. According to the WWSU’s report, many distribution centers employ people on a temporary or part-time basis. Different definitions of “employee” in different statutes mean that not all legal protections may apply to people who do not have full-time, permanent employment, or who are employed in certain capacities. The National Labor Relations Act (NLRA), for example, protects employees’ right to organize for the purpose of collective bargaining, but it defines “employee” in a way that might exclude some people, such as those considered to be an “independent contractor” or “supervisor.” 29 U.S.C. § 152(3).

In early December 2018, multiple employees at a distribution center in New Jersey were injured when a can of bear repellant, an aerosol product similar to pepper spray, fell off of a shelf. An automated machine reportedly punctured the can, causing its contents to disperse. About two dozen people went to the hospital, including one person who had to go to the intensive care unit. This incident appears to have been what led workers to rally in support of the WWSU’s proposed code of conduct.
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The federal Fair Labor Standards Act (FLSA) requires employers nationwide to pay a minimum wage of $7.25 per hour, although many states, including New Jersey, have set a higher minimum wage. Workers who customarily receive tips are not subject to the same federal minimum wage rules. The FLSA sets a much lower base wage for tipped employees and allows employers to take a “tip credit” when the employee receives an amount of tips that puts their total compensation at or above $7.25 per hour. The U.S. Department of Labor (DOL) has developed rules for determining when an employer may take a tip credit for employees who do both tipped and untipped work. The Wage and Hour Division’s (WHD) Field Operations Handbook (FOH) established the “80/20 rule,” which proved to be unpopular among many employers. An opinion letter issued by the DOL in November 2018 disavowed that rule. In February 2019, the DOL updated the FOH to make rescission of the 80/20 rule official.

Employers are obligated to pay tipped employees a base rate of $2.13 per hour, plus any amount needed to bring the employee’s total hourly compensation, including tips, to $7.25. 29 U.S.C. §§ 203(m), 206(a)(1)(C). The FLSA defines a “tipped employee” as anyone who “customarily and regularly receives more than $30 a month in tips” in the course of their job. Id. at § 203(t). Tipped employees therefore often rely on tips for any income over minimum wage.

The 80/20 rule arose from the DOL’s rule regarding dual jobs, which states that employers cannot take tip credits for hours that are not spent on tipped work. The rule gives an example of “a maintenance man in a hotel [who] also serves as a waiter.” 29 C.F.R. § 531.56(e). It draws a distinction, however, between that and workers in tipped occupations who occasionally perform “related duties,” such as “a waitress who spends part of her time cleaning and setting tables.” Id.
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Advocates for increasing minimum wage rates around the country argue that the current federal rate is insufficient to cover expenses in many American cities. A campaign known as the “Fight for $15” seeks to raise the minimum wage to $15 nationwide. Under newly-enacted legislation, the New Jersey minimum wage will gradually increase to $15 per hour over several years. As advocates succeed in this effort, however, the workforce is undergoing changes that could lessen the impact of their success. Workers in the “gig economy” are often classified as independent contractors rather than employees, or they only work part-time. Either way, many are excluded from a wide range of protections under federal and state employment laws, including minimum wage. Recent news reports have shown, however, that workers and their advocates are fighting for better terms.

The federal minimum wage last increased on July 24, 2010, from $6.55 to $7.25 per hour. 29 U.S.C. § 206(a)(1)(C). New Jersey’s minimum wage has been higher than that for some time. A new law signed by the governor in February 2019 will increase the minimum wage for many New Jersey workers to $10 per hour on July 1. On the first day of 2020, it will increase to $11 per hour. A $1 increase will follow on January 1 of each following year until the rate reaches $15 per hour in 2024. See N.J. Rev. Stat. § 34:11-56a4, as amended by P.L.2019, c.32. The definitions provided by state wage laws, however, continue to omit many gig economy workers. An “employee” is still simply “any individual employed by an employer.” Id. at § 34:11-56a1(h).

The term “gig economy” has no distinct definition, but generally refers to individuals who work for companies on a job-by-job basis. This includes people who provide freelance services to multiple clients, but also people who provide services to customers of companies like Uber or Instacart. Driving for a ridesharing company might look like a full-time job. On paper, the relationship between the two parties is not employer/employee, but employer/independent contractor.
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Technology is constantly providing new ways to help both employers and employees in New Jersey. Unfortunately, sometimes a technology that helps employers does so at employees’ expense. Our legal system can be slow to catch up with new innovations. Fitness trackers, which are devices individuals can wear to track movement and other vital statistics, are becoming more and more common. Many employers have taken notice of this. A recent Washington Post article describes fitness trackers as “an increasingly valuable source of workforce health intelligence for employers.” Employers’ access to, and use of, employees’ fitness tracker data raises concerns about privacy. In some cases, it could raise concerns about employment discrimination. Federal and New Jersey employment laws prohibit discrimination on a wide range of factors, and protect privacy in certain areas. Opinions are mixed on the extent to which they cover fitness tracker data.

Arguably, employers use employee fitness tracker data to monitor performance. The devices record information about an employee’s movement, or lack thereof. This could be relevant to job performance, but it could also present problems. The New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating against employees and job applicants on the basis of disability. N.J. Rev. Stat. § 10:5-12(a). The statute defines this term very broadly, covering a wide range of physical and mental conditions that “prevent[] the normal exercise of any bodily or mental functions.” Id. at § 10:5-5(q). At the federal level, the Americans with Disabilities Act (ADA) of 1990, as amended by the ADA Amendments Act (ADAAA) of 2008, also prohibits employment discrimination. This statute’s definition of “disability” includes both actual and perceived disabilities. See 42 U.S.C. §§ 12102(1)(C), 12112.

State and federal antidiscrimination law also prohibit discrimination by employers based on genetic information. This could be an issue for employers using fitness tracker data in some situations. The NJLAD defines “genetic information” as “information about genes, gene products or inherited characteristics.” N.J. Rev. Stat. § 10:5-5(oo). The plain language of the statute suggests that the information does not have to come from a genetic test ordered by the employer. The federal Genetic Information Nondiscrimination Act (GINA) focuses more specifically on genetic testing. It defines “genetic information” as information derived from a person’s genetic test or that of a family member, or “the manifestation of a disease or disorder” in a member of that person’s family. 42 U.S.C. §§ 2000ff(4)(A), 2000ff-1(a).
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Organized labor is arguably responsible for many features of employment that are often taken for granted today. Union membership has decreased considerably over the past few decades for a variety of reasons. Employees in New Jersey are union members at a higher rate than the national average, but union members still only account for less than twenty percent of New Jersey’s workforce. Public sector unions tend to receive a great deal of media attention today, and the most popular historical images of union membership probably involve trades like manufacturing and mining. Recent news coverage, however, has pointed to itself as an important sector for union organizing. Newsrooms at print and digital publications around the country have elected to organize for the purpose of collective bargaining. While it is not clear if employees at any New Jersey-based publications have taken this step, it has happened at many publications that reach New Jersey readers.

New Jersey remains generally favorable to labor unions. Federal law protects workers’ rights to organize and engage in “concerted activities” related to organizing, and prohibits employers from interfering with those rights. See 29 U.S.C. §§ 157, 158. It does not, however, prevent states from enacting so-called “right-to-work” laws. At least twenty-six states, not including New Jersey, have enacted such laws. Right-to-work laws prohibit “union security clauses” in collective bargaining agreements (CBAs) between employers and labor unions. A union security clause requires all employees to contribute to the union, either by becoming a member or paying a fee. Without a union security agreement, employees who contribute nothing to the union still benefit from the union’s efforts.

Despite offering a relatively favorable environment for labor unions, not many New Jersey workers are union members. According to the Bureau of Labor Statistics, part of the U.S. Department of Labor, New Jersey had 630,000 union members in 2017. This accounted for 16.2 percent of all employees in the state. New York had 2,017,000 union members in 2017, or 23.8 percent. Both states saw a decline in union membership since 2007. New York’s number of union members fell by 38,000, while New Jersey’s fell by 118,000.
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Federal and state antitrust laws prohibit agreements that attempt to restrain trade in various forms. This applies to New Jersey employment disputes when competing businesses agree not to hire one another’s employees, or to set limits on wages or benefits. This type of unlawful activity by employers is commonly known as “collusion.” In addition to statutes, collective bargaining agreements (CBAs) also often include anti-collusion provisions. A professional football player recently settled a dispute with the National Football League (NFL), in which he alleged that the league and its individual teams colluded to deprive him of job opportunities because of his participation in a controversial protest. The dispute was submitted to arbitration under the terms of the CBA between the NFL and players. It was styled Kaepernick v. NFL, et al, but it was not a lawsuit filed in a court of law.

At the federal level, the Sherman Antitrust Act of 1890 prohibits any “contract…in restraint of trade or commerce among the several States.” 15 U.S.C. § 1. This has been interpreted very broadly over the years to apply to a wide range of commercial activities, including employment. Similarly, the New Jersey Antitrust Act prohibits “contract[s]…in restraint of trade or commerce, in this State.” N.J. Rev. Stat. § 56:9-3.

The Kaepernick case cited Article 17 of the CBA between the NFL and the NFL Players Association (NFLPA), which has been in effect since August 4, 2011. The CBA is binding on the NFL and its thirty-two teams, also known as clubs. Section 1(a) of Article 17 prohibits clubs from “enter[ing] into any agreement, express or implied, with the NFL or any other Club, its employees or agents to restrict or limit individual Club decision-making” with regard to hiring decisions. Remedies, addressed in §§ 8 and 9 of Article 17, include termination of existing contracts and compensatory damages.
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The technology industry is gaining prominence in New Jersey. A list of the five hundred fastest-growing tech companies from last year included sixteen New Jersey companies. A strong tech industry can bring many benefits to state and local economies, but the tech industry also has its share of problems. The industry’s struggles with age and gender discrimination have received a great deal of media attention. A common feature in the tech industry that does not receive as much attention, in the context of employment law, is the expectation that employees work long hours. Despite research suggesting that longer hours do not translate into greater productivity or value, numerous industries continue to view working far in excess of forty hours per week as both a rite of passage and an ongoing necessity. It may also, according to some critics, be a form of New Jersey disability discrimination.

The New Jersey Law Against Discrimination (NJLAD) and the federal Americans with Disabilities Act (ADA) prohibit employment discrimination on the basis of disability. N.J. Rev. Stat. § 10:5-12(a), 42 U.S.C. § 12112(a). The ADA defines a disability in very general terms as a “physical or mental impairment” that impedes a person’s “major life activities.” 42 U.S.C. § 12102(1). Employers must make “reasonable accommodations” for employees with disabilities, defined to include both modifications for physical accessibility and modifications to shift schedules or job duties. Id. at § 12111(9).

The popular perception of a “disability” in the workplace probably involves a person with impaired mobility, or who is otherwise unable to perform some physical aspect of a job, such as lifting heavy objects. This is far from the only type of disability. Impairments affecting eyesight or hearing, for example, could qualify as a disability under the ADA. Chronic illnesses that affect energy levels of energy can also be considered disabilities. People who experience ongoing fatigue because of a medical condition may not be able to work more than forty hours per week, let alone eighty or more hours. The tech industry reportedly does not track disability among its employees, so it is difficult to know the extent of the issue.
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Wage disparity is an important—and controversial—topic in American politics. Women, on average, tend to make less than men. The same is often true for people of color as compared to White employees. Some lawmakers and officials at the local and state level are looking at ways that employers, intentionally or not, may perpetuate wage gaps through inquiries into job applicants’ salary histories. Such inquiries may make it difficult for job applicants to negotiate salaries that break from historical patterns of wage disparity. Bans on employer salary history inquiries are becoming more common around the country. Statutes focused on New Jersey employment law do not prohibit such inquiries by private employers, but a 2018 executive order prohibits them among state offices and agencies. Earlier this year, Suffolk County, New York became the latest local government to enact a salary history ban. A few states, such as Wisconsin and Michigan, have gone in a different direction by barring local governments from enacting bans of their own.

New Jersey Governor Phil Murphy signed Executive Order #1 on January 16, 2018, in his first official act after he took the oath of office. The text of the order notes that women in New Jersey receive wages of eighty-two cents for every dollar paid to men in full-time jobs, and that this gap appears regardless of industry or education level. These disparities are even more pronounced when the full-time wages of African-American and Latina women are compared to those of White men in New Jersey—fifty-eight cents and forty-three cents, respectively. The order declares that New Jersey workers “should be compensated based on the nature of the work and services they provide.”

The order took effect on February 1 of last year. It prohibits state entities from inquiring about salary history, including both direct inquiries to job applicants and independent investigations, until a conditional offer of employment has been made. Applicants may voluntarily provide information, but may not be required to do so. If a state entity already has information about an applicant’s salary history, it may not consider that information when making a hiring decision, unless a statute or collective bargaining agreement requires it to do so. The executive order does not create a private cause of action for aggrieved job applicants, but does empower the governor’s office to investigate claims “and take appropriate remedial measures.”
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Federal antidiscrimination laws prohibit a wide range of acts by employers and others that have adverse effects on members of protected groups. This protection is not limited to overtly discriminatory behavior. The Civil Rights Act of 1964 also prohibits practices that have a disparate impact on protected groups, even when those practices appear neutral on their face or do not appear to have discriminatory intent. This applies to employment, housing, and other areas. An employer’s intent is not the most important factor when assessing whether an action, policy, or practice is discriminatory. A recent report on an internal memorandum at the U.S. Department of Justice (DOJ) suggests that the current administration is considering rolling back regulatory prohibitions on disparate impact discrimination. While the memorandum reportedly refers to Title VI cases, not Title VII, any rollbacks in other areas of antidiscrimination regulations are likely to have an effect on New Jersey employment discrimination claims, as well as nationwide.

The most important U.S. Supreme Court decision on disparate impact discrimination in employment is Griggs v. Duke Power Co., 401 U.S. 424 (1971). A group of African-American employees alleged that the defendant violated Title VII by requiring candidates for transfer or promotion within the company to have a high school diploma or pass “a standardized general intelligence test.” Id. at 426. The Supreme Court agreed with the plaintiffs. It found that, while the defendant’s policy appeared neutral with regard to race, it was not “significantly related to successful job performance” and had the effect of discriminating against African-American employees. Id. The Supreme Court has also rejected a “bottom line” defense, in which an employer argued that they should not be held liable if a discriminatory practice happens not to have an overall adverse impact in the balance of employees. Connecticut v. Teal, 457 U.S. 440 (1982).

Several federal agencies have adopted a set of standards known as the Uniform Guidelines for Employee Selection Procedures in their regulations. This includes the DOJ and the Equal Employment Opportunity Commission (EEOC). See 28 C.F.R. § 50.14, 29 C.F.R. pt. 1607. Under these guidelines, a selection rate in hiring or promotion for a protected category like race or sex that “is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate” is considered evidence of disparate impact discrimination. 28 C.F.R. 50.14(4)(D), 29 C.F.R. § 1607.4(D). Both the DOJ and the EEOC raise claims of disparate impact in civil enforcement actions.
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New Jersey employment laws prohibit discrimination in the workplace on the basis of numerous factors. The New Jersey Law Against Discrimination (NJLAD) offers protection to more categories than its federal counterpart, Title VII of the Civil Rights Act of 1964, although other federal statutes cover areas that are omitted from Title VII. The Age Discrimination in Employment Act (ADEA) of 1967, for example, protects older employees from various adverse employment actions based on their age. New Jersey law tends to offer broader protection in this area as well, without the lower age limit found in the ADEA. A putative class action currently pending in a New York City federal court asserts claims for age discrimination under the ADEA and several state statutes. Rusis, et al v. Int’l Business Machines Corp., No. 1:18-cv-08434, complaint (S.D.N.Y., Sep. 17, 2018).

The term “age discrimination” principally refers to adverse employment actions against older individuals, and in favor of younger individuals. The ADEA expressly limits its protections to people who are forty years old or older. 29 U.S.C. § 631(a). The statute prohibits various discriminatory acts and disparate treatment against protected individuals because of their age. As long as a person meets the ADEA’s age criterion, however, it is possible for them to bring a claim for discrimination against younger employees in favor of older ones. The statute allows exceptions in situations “where age is a bona fide occupational qualification.” Id. at § 623(f)(1). The NJLAD does not set a minimum age for protection against age discrimination. See N.J. Rev. Stat. § 10:5-12. An individual must, however, be at least eighteen years old—i.e. not subject to child labor laws—to assert a claim.

The allegations in the Rusis lawsuit follow the familiar scenario of discrimination against older workers in favor of younger ones. This scenario seems to be particularly common in the tech industry, which is often alleged to favor youth among job applicants, and to believe that older workers are less likely to be familiar with newer technologies. According to the plaintiffs’ complaint, the defendant began laying off employees in 2012 in an effort to recruit younger workers. It has allegedly laid off as many as twenty thousand people over the age of forty since then. The plaintiffs claim that the defendant has actively recruited among the age group commonly known as “Millennials,” which they say the company defines as people born after 1980, in an effort “to make the face of [the defendant] younger.” Rusis, complaint at 4.
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