Employment Contracts

May 20, 2024

Federal Judge Vacates NLRB’s Joint Employer Rule

“Joint employer” rules help workers and their advocates in situations where more than one person or entity exercises control or authority over a worker. New Jersey employment laws establish obligations that employers owe to their employees. To assert a claim for damages under these laws, an employee must identify which employer or employers have those legal obligations. This issue can arise in disputes over labor rights under the National Labor Relations Act (NLRA), such as when an employee receives a paycheck from one company but works at a site operated by another company under a contract between the two companies. Joint employer rules allow workers to hold employers jointly and severally liable for unlawful practices. The National Labor Relations Board (NLRB) issued a final rule in late 2023 establishing a new standard for joint employment under the NLRA. In March 2024, however, a federal judge vacated the rule.

The NLRA protects employees’ rights to organize themselves, bargain collectively with their employers, and engage in other activities related to advocating for their rights and protecting their interests. Employers may not interfere with or retaliate against employees who are engaging in protected activities. Like many employment laws, the statute only briefly defines “employer,” leaving it to the NLRB to go into detail.

The NLRB’s joint employer rule looks at the amount of control an alleged employer has over a worker’s “essential terms and conditions of employment” (ETCEs). This includes issues like wages or salary, job assignments, supervision, workplace safety, and employment policies. In 2020, the NLRB adopted a rule that would only deem an entity a joint employer if it had “substantial direct and immediate control over one or more” ETCEs. This presents a fairly high bar for employees, which the NLRB sought to address with a revised rule.
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April 29, 2024

New FTC Rule Bars Non-Compete Agreements in New Jersey and Nationwide

by Resnick Law Group, P.C.

When an employee leaves a job, either by their own decision or their employer’s, their ability to get another job in the same field might depend on whether they signed a non-compete agreement with their most recent employer. This type of agreement limits workers’ employment options, arguably to protect the employer’s business. Workers might sign a non-compete agreement as part of their original employment contract or at a later date. New Jersey employment law restricts the enforceability of these agreements, but a new rule from the Federal Trade Commission (FTC) might go much further than state law. The FTC published a final rule in late April 2024 that bans most non-compete agreements nationwide. The rule has not taken effect yet, and it will face legal challenges that could delay its effective date.

What Is a Non-Compete Agreement?

A non-compete agreement is a contract that restricts an employee from accepting a job from a competitor of the employer after their employment relationship ends. It may also bar an employee from starting a competing business.

Employers might view non-compete agreements as a way to protect the investments they make in training employees. An employer’s competitors cannot benefit from the knowledge and experience their employees have acquired. For employees, however, overbroad non-compete agreements can significantly interfere with their ability to find a job in their chosen career.
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February 9, 2024

Domestic Workers’ Rights Under New Jersey Employment Law

by Resnick Law Group, P.C.

Domestic workers, such as in-home caregivers, play a vital role in our society. Federal and New Jersey employment laws treat some domestic workers differently than other workers, including exemptions for minimum wage and overtime pay. The federal government has made it a priority to improve legal protections for domestic workers. The U.S. Department of Labor (DOL) recently issued a series of sample employment contracts for domestic workers that outline their legal rights. New Jersey is making similar improvements, such as the New Jersey Domestic Workers’ Bill of Rights (DWBR), which the governor signed into law in January 2024.

The Fair Labor Standard Act (FLSA) sets a nationwide minimum wage of $7.25 per hour and requires employers to pay time-and-a-half for overtime work. The law contains numerous exceptions and exemptions, including domestic workers in certain circumstances. The DOL defines “domestic service employment” as “services of a household nature” performed in a private home. This may include babysitters, nannies, home health aides, nurses, and handymen.

As a general rule, the FLSA provides the same protections for domestic workers regarding minimum wage and overtime as it does for other workers. It does, however, make two exemptions:
– Section 13(a)(15) of the FLSA exempts several types of workers from its minimum wage and overtime provisions: babysitters who are “employed on a casual basis” and individuals who “provide companionship services” to people who cannot care for themselves. The DOL interprets employment “on a casual basis” to mean that the individual does not rely solely on babysitting income or only provides services intermittently. The “companion” exemption applies to individuals who care for an “elderly person or person with an illness, injury, or disability.”
– Section 13(b)(21) exempts live-in domestic workers from the FLSA’s overtime provisions.
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January 19, 2024

NLRB Issues Final Rule on Joint Employer Status

by Resnick Law Group, P.C.

To assert a claim for violations of New Jersey employment laws, a person must be able to demonstrate that an employer-employee relationship exists. State and federal employment statutes tend to provide vague definitions of terms like “employee” and “employer.” Courts and regulatory agencies provide more detailed definitions. For example, the New Jersey Supreme Court has adopted a test to distinguish between employees with the full protection of state and federal employment law and independent contractors with contractual rights and remedies. In other situations, multiple entities may exercise control over an employee’s work, making it difficult to determine who is their “employer” under the law. The National Labor Relations Board (NLRB) recently issued a new rule for determining when an employee has “joint employers.” The rule can help employees hold employers liable for violations of federal labor law.

The National Labor Relations Act (NLRA) protects employees’ rights to “self-organization” and “other concerted activities” intended to protect employees or promote their welfare. Employers may not threaten or interfere with employees who are engaging in protected activities. The NLRB investigates claims of unlawful activity by employers.

“Joint employer” status can be an issue in situations where more than one company or other entity has some degree of control over an employee’s work. An employee might draw a paycheck from a staffing agency, for example, but take orders from a business that contracts with the agency. Someone who works for a business that operates a franchise might be subject to requirements from their direct employer, known as the franchisee, and the franchisor. The joint employer rule seeks to determine how many entities are acting as an “employer.”
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December 15, 2023

NLRB Complaint Alleges Unlawful Firing by Social Media Company

by Resnick Law Group, P.C.

Employees’ ability to communicate with one another about working conditions and other workplace concerns is essential to their ability to assert their legal rights. Both federal and New Jersey employment laws prohibit employers from interfering with employee efforts to organize and communicate about important work-related matters. In late 2022, a major social media company fired an employee after he posted a message to the company’s platform that related to a change in management that was ongoing at the time. In October 2023, the National Labor Relations Board (NLRB) filed a complaint alleging that the company broke the law by firing the employee. The case could impact New Jersey employee rights, depending on how far it goes in the administrative law system. At a minimum, the case offers a useful look at how social media usage affects workers’ rights.

The National Labor Relations Act (NLRA) has protected workers’ right to organize themselves for collective bargaining purposes for almost ninety years. Section 7 of the statute goes beyond collective bargaining to protect a much wider range of “concerted activities for the purpose of…mutual aid or protection.” Under § 8(a)(1) of the NLRA, employers may not “interfere with, restrain, or coerce employees” who are exercising their § 7 rights.

Workers who believe their employer has violated their rights under the statute can file a charge with the NLRB. The agency will investigate the charge and decide on its merits. If it finds that a charge has merit, it will attempt to get the parties to agree on a settlement. The NLRB’s regional directors have the authority to file complaints when parties cannot reach settlements.
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September 15, 2023

NLRB Ruling Changes Standard for Many New Jersey Employers’ Workplace Policies

by Resnick Law Group, P.C.

Employers’ workplace policies must comply with New Jersey employment laws. This includes federal laws passed by Congress and state laws passed by the New Jersey Legislature. At the federal level, the National Labor Relations Act (NLRA) protects workers’ rights to engage in organizing activities. The National Labor Relations Board (NLRB) adjudicates complaints from employees that allege violations of their rights. When an employment policy interferes with workers’ ability to organize themselves, the employer might be in violation of the NLRA. An August 2023 decision from the NLRB revises the standards that it uses to assess whether a particular policy or rule infringes on employees’ rights. It reverses a standard put in place in 2017 and reinstates an earlier standard with some modifications.

Workers have the right under § 7 of the NLRA to organize themselves in order to form or join unions. By organizing in this way, workers gain greater leverage in negotiations with their employers through a process known as collective bargaining. Employers violate the NLRA when they interfere with efforts to organize or engage in other activities intended to promote workers’ interests. Violations of these rights are possible even without obvious intent on the part of an employer. Policies or rules that appear neutral can still be unlawful in certain situations.

In 2017, the NLRB issued a ruling that established a standard for evaluating employment policies that remained in place until the recent decision. The 2017 standard gave greater leeway to employers than the standard it replaced. It identified three categories of employment policies, based on the level of scrutiny that it would apply:
– Category 1: Rules that are lawful, either because they generally do not interfere with workers’ rights or they serve a purpose whose important outweighs the possible impact on workers.
– Category 2: Rules that the NLRB assesses on a case-by-case basis to balance the extent of any NLRA violations against possible business justifications.
– Category 3: Rules that unambiguously infringe on workers’ rights.
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August 4, 2023

New Jersey Plant Closure Violated Employees’ Labor Rights, NLRB Rules

by Resnick Law Group, P.C.

For far too many workers in New Jersey and throughout the country, employment can be uncertain or even precarious. Decisions made by employers far above an employee’s level can lead to them being out of a job through no fault of their own. New Jersey employment laws protect against wrongful termination, such as a decision to fire someone because of a protected category like race or religion, or termination in retaliation for legally protected activity. State and federal laws do not prohibit employers from laying workers off for non-discriminatory or retaliatory reasons, but they might set some limits. In the case of certain mass layoffs, for example, employers must provide advance notice and severance pay. Many collective bargaining agreements (CBAs) also contain provisions requiring negotiation prior to plant closures. Federal labor law requires employers to negotiate with authorized unions in accordance with their CBAs. The National Labor Relations Board (NLRB), which enforces the main federal labor statute, recently ruled that an employer violated the law by closing a facility and laying employees off without notifying the union.

The National Labor Relations Act (NLRA) prohibits employers from interfering with workers’ rights, as defined by § 7 of the statute, to engage in various protected activities. This includes organizing themselves for the purpose of collective bargaining, as well as other activities related to promoting employees’ well-being. The statute identifies a range of “unfair labor practices.” Many involve actions taken by employers, while others involve refusals to act.

Once a union has met the NLRA’s requirements for becoming the authorized representative of a group of employees, the employer must negotiate with that union in good faith. Section 8(a)(5) makes it an unfair labor practice for an employer to refuse to participate in collective bargaining with its employees’ representative. Under § 9(a) of the NLRA, the union is the employees’ “exclusive representative,” in most situations, with regard to negotiations with management for “rates of pay, wages, hours of employment, or other conditions of employment.” This often includes negotiation over decisions that could lead to employee layoffs, such as the closure of a plant or other facility. The union has the right to negotiate regarding the terms and effects of these kinds of decisions.
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July 13, 2023

NLRB and CFPB Announce Collaboration to Protect Workers in New Jersey and Nationwide

by Resnick Law Group, P.C.

Numerous government agencies investigate alleged violations of employees’ workplace rights. On occasion, they pursue enforcement actions on workers’ behalf. State agencies handle claims under New Jersey employment law, while federal agencies address alleged violations of statutes like Title VII of the Civil Rights Act of 1964 or the National Labor Relations Act (NLRA). Agencies may collaborate with one another in order to further their own missions and provide better service to the public. Two federal agencies announced a new collaboration in March 2023. The National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CFPB) will share information and resources in order to address several issues of concern. These include employment practices that have adverse impacts on employees’ privacy, data security, and financial well-being.

In its press release announcing the new collaboration, the NLRB states that despite “hav[ing] two distinct missions,” both agencies “share an interest in protecting American workers.” The NLRB is responsible for investigating alleged violations of workers’ labor rights under the NLRA, such as interference by an employer with efforts to self-organize or join a union for collective bargaining purposes. The NLRB’s General Counsel may file administrative actions against employers seeking compensation for workers and other types of relief.

While the NLRB came into existence nearly nine decades ago in 1935, the CFPB came into existence just over a decade ago in 2011. Congress established both agencies in the wake of major financial crises: the Great Depression and the 2007-08 financial crisis, respectively. The CFPB promulgates and enforces regulations affecting financial institutions and other businesses that may impact consumers’ financial interests. It may initiate administrative proceedings or file civil lawsuits in federal court. Enforcement actions by the CFPB might involve deceptive or abusive practices by banks, mortgage lenders, or payday loan companies. The agency has also investigated employment practices that “may leave employees indebted to their employers.”
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July 5, 2023

U.S. Supreme Court Sets Limit on New Jersey Workers’ Rights During Strikes

by Resnick Law Group, P.C.

New Jersey employment laws at both the state and federal levels protect a wide range of workers’ rights. When federal and state laws seem to conflict with one another, federal law often supersedes state law, although, this is not always the case. The U.S. Supreme Court recently ruled on a preemption question related to labor rights. A group of workers and their union argued that the National Labor Relations Act (NLRA), which guarantees workers’ right to self-organization for collective bargaining purposes, preempted a property damage claim that the employer brought against the union. Unfortunately, the court ruled in the employer’s favor in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174, meaning that the court set a limit on the protection that the NLRA offers.

The NLRA protects the rights of workers to organize themselves into unions or join existing unions, and to engage in activities related to organizing, collective bargaining, and “other mutual aid or protection.” Workers also have the right to refrain from union-related activities. The statute prohibits both employers and unions from interfering with employees’ rights or coercing them. Once employees have formed or chosen a union to represent them, their employer must negotiate with that union in good faith on employment issues.

Because the NLRA is a federal statute, its provisions might preempt some state law claims. The doctrine of federal preemption is based on the Supremacy Clause of the U.S. Constitution, which states that federal law is “the supreme Law of the Land,” regardless of whether state laws say something different.
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May 5, 2023

NLRB Bars Employers from Including Non-Disparagement Clauses in Severance Agreements

by Resnick Law Group, P.C.

Workers have the right to organize themselves in order to bargain collectively with their employers and advocate for better working conditions. Federal and New Jersey employment laws protect these rights and prohibit employers from interfering with or retaliating against employees who are engaged in lawful activities. The National Labor Relations Board (NLRB) adjudicates disputes over alleged violations of federal labor laws. In February 2023, it issued a ruling that invalidates a non-disparagement clause that an employer included in severance agreements for a group of employees it had just laid off. The NLRB found that the employer could not require workers to waive such a large number of legal rights. The following month, the NLRB’s General Counsel (GC) issued a memorandum providing guidance to NLRB directors and officers on how to implement this decision.

Section 7 of the National Labor Relations Act (NLRA) identifies a broad range of rights enjoyed by workers. This includes “the right to self-organization” and to join or form a labor union for the purpose of collective bargaining. The section also states that workers have the right to engage in “other concerted activities for the purpose of…mutual aid or protection.” The NLRB and the courts have interpreted this as providing rather broad protection of workers’ right to communicate among themselves and with others about various features of employment, such as working conditions and wages.

The case recently before the NLRB involved a hospital and a union representing various service employees. The hospital furloughed numerous employees at the beginning of the COVID-19 pandemic in 2020. It made the temporary furlough permanent for eleven union members later that year. Each of these employees received a “Severance Agreement, Waiver and Release” that offered a severance package in exchange for their signature. According to the NLRB’s ruling, the hospital did not inform the union of the furloughs or the severance agreements.
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