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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

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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New Jersey has allowed medical marijuana use since 2009, when a bill originally known as the New Jersey Compassionate Use Medical Marijuana Act (CUMMA) became law. As written, the law did not specify how an individual’s use of medical marijuana would affect their employment. If an employer fires an employee because of their medical marijuana prescription, are they discriminating against the employee for the underlying medical condition? Is this unlawful disability discrimination under the New Jersey Law Against Discrimination (NJLAD)?

Two events in the last year have made the situation clearer, at least at the state level. In 2019, the Legislature passed the Jake Honig Compassionate Use Medical Cannabis Act (CUMCA), which contains express protections for employees and replaces CUMMA. This year, the New Jersey Supreme Court ruled that a claim for disability discrimination was possible under CUMMA. If your employment was recently terminated for having a medical marijuana prescription, it is important that you reach out to a New Jersey disability discrimination lawyer as soon as possible to discuss your legal options.

Ambiguity in the Compassionate Use Medical Marijuana Act

Sections 8 and 16 of CUMMA, codified at N.J. Rev. Stat. §§ 24:6I-8 and 24:6I-14, left employers and employees uncertain about the rights of medical marijuana patients. Section 8 stated that the law does not permit anyone to operate a vehicle or perform certain other tasks “while under the influence of marijuana.” Section 16 stated that the statute did not “require…an employer to accommodate the medical use of marijuana in any workplace.” The statute made no mention of employees’ rights.

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The coronavirus pandemic has hit New Jersey harder than most U.S. states, and the economy will surely take some time to recover. The New Jersey Legislature has passed multiple bills in recent months intended to help workers affected by the pandemic. Notable bills include one that modifies the state’s temporary disability insurance system and one that addresses retaliation by employers against quarantined workers. If you feel you may need or have had to take leave from work due to the coronavirus pandemic and have concerns regarding your employment status or benefits, please contact a New Jersey employment attorney as soon as possible.

State of Emergency

Several new laws make changes that only apply during a public health emergency. The governor first declared an emergency in relation to the coronavirus on March 9, 2020. A declaration of emergency expires after thirty days unless extended by the governor. He has extended the March 9 declaration twice so far, on April 7 and May 6.

Temporary Disability Insurance

The New Jersey Temporary Disability Benefits Law (TDBL) provides disability coverage for workers who are unable to work because of “an accident or sickness” that is not due to an on-the-job incident, and which is not otherwise covered by the state’s workers’ compensation law. N.J. Rev. Stat. § 43:21-29. It also allows “family temporary disability leave” for a worker who must care for a family member with a “serious health condition,” defined to include conditions requiring inpatient care or other ongoing medical care. Id. at §§ 43:21-27(o)(1), (s). Under ordinary circumstances, no benefits provided by the TDBL are payable for the first seven days of a disability period. Id. at § 43:21-39(a).
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New Jersey remains in a public health emergency because of the global coronavirus pandemic. “Stay at home” orders appear to have slowed the spread of the virus, but they have also led to widespread economic problems. S2304, a bill expanding earned sick leave (ESL) and family leave benefits in New Jersey, became law on March 25, 2020. The bill addresses the availability of these benefits during a state of emergency or when public health officials or healthcare providers have ordered someone into quarantine or isolation.

Public Health Emergency

The governor first declared a state of emergency on March 9, 2020. He extended the public health emergency on April 7, and again on May 6. A declaration gives the governor authority to direct resources towards dealing with the emergency. This can include ordering businesses to close and ordering individuals to remain at home.

New Jersey’s Earned Sick Leave and Family Leave Laws

The ESL law took effect in November 2018, six months after the governor signed the bill. It provides workers with one hour of paid sick leave for every thirty hours that they work, at the same rate of pay as if they were at work. Employees may carry up to forty unused hours over from one year to the next.

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On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) became law. This bill is not as comprehensive as other bills that Congress has passed in response to the global COVID-19 pandemic, but it has some of the most important provisions affecting employment law. New Jersey employment law provides paid sick leave for workers and is one of few states to do so. The FFCRA establishes a temporary nationwide system of paid sick leave. It also temporarily expands the unpaid leave that is available under the federal Family and Medical Leave Act (FMLA). These provisions have several important limitations, including the total exclusion of employers with five hundred or more employees. A new temporary rule from the Department of Labor’s Wage and Hour Division (WHD) limits some workers’ ability to enforce their rights under the system of expanded FMLA leave.

FMLA Enforcement at Normal Times

The FMLA applies to employers with fifty or more employees, and employees who have worked at least 1,250 hours during the previous twelve months. In any twelve-month period, an eligible worker may take up to twelve weeks of unpaid leave for certain purposes, including a “serious health condition” and the need to care for a family member with such a condition.

Employers may not interfere with an eligible employee’s use of authorized leave, nor may they retaliate against an employee for taking leave. The employee’s job is protected during their leave. Employees may file a civil lawsuit against an employer who violates these provisions, and may recover damages including lost wages and benefits.

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