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Articles Posted in New Jersey Labor Law

Federal labor law protects workers’ rights to organize themselves in order to engage in collective bargaining and advocate for their interests. The National Labor Relations Act (NLRA) identifies these rights and prohibits employers from interfering with employees who are engaged in protected activities. The National Labor Relations Board (NLRB) adjudicates allegations of unlawful actions by employers and labor unions. Recently, a panel of the NLRB in New Jersey ruled in a case that alleged numerous NLRA violations by an employer, including refusing to negotiate with its employees’ authorized representative and firing multiple employees because of their union activities. An administrative law judge (ALJ) found that the employer violated multiple provisions of the NLRA. The NLRB panel affirmed the ruling, with some modifications. If you are involved in a labor dispute, contact a New Jersey employment lawyer today to learn more about your rights.

Workers have the right to “self-organization” under the NLRA. They may engage in activities directed towards organizing themselves to join or form a union, along with other activities related to “collective bargaining or other mutual aid or protection.” Section 8(a) of the statute identifies prohibited “unfair labor practices by employer[s].” These include interfering with protected activities by employees, discriminating on the basis of union membership or organizing activities, and refusing to participate in collective bargaining with authorized union representatives. Workers may report alleged violations to the NLRB.

The employer in the recent NLRB decision operates a hotel in North Bergen, New Jersey. According to the ALJ’s opinion, it entered into a collective bargaining agreement (CBA) with its employees’ union in 2011. The CBA expired in 2015, but the employer and the union had not been able to agree to a new CBA. As of the date of the ALJ’s ruling in late 2021, the 2011 CBA remained the most recent agreement between the two.
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Federal law protects workers’ rights to organize themselves and engage in collective bargaining with their employers. The National Labor Relations Act (NLRA) prohibits employers from interfering with these rights. It also authorizes the National Labor Relations Board (NLRB) to investigate alleged violations, rule on complaints, and award remedies like back pay and reinstatement to employees. The NLRB recently issued a ruling in an ongoing New Jersey employment dispute. The employer had raised objections to various details of an order awarding back pay to several former employees. The NLRB’s ruling generally goes in the employees’ favor.

Section 8(a) of the NLRA prohibits “unfair labor practices” by employers, such as interfering with protected activities described in § 7 or discriminating against employees on the basis of their involvement in protected activities. The NLRB has the authority under § 10 “​​to prevent any person from engaging in any unfair labor practice…affecting commerce.” It may serve complaints on employers based on charges received from workers, and conduct proceedings to determine whether an employer has violated the NLRA. Remedies may include reinstatement of any employee who was not dismissed for cause, along with back pay.

The case that was recently before the NLRB began with charges filed by several employees of a New Jersey nursing center in 2011 and 2012. The employees, who are licensed practical nurses (LPNs), alleged that the employer retaliated against them for their union-related activities by eliminating LPN positions and replacing them with other nurses. In 2016, the NLRB ruled that the employer’s actions violated § 8(a). It ordered the employer to offer reinstatement to the employees and awarded them back pay. The Third Circuit Court of Appeals affirmed the order in 2018.
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The right of workers to organize and bargain collectively with employers has led to many important reforms in workplace safety and working conditions. Congress enacted the National Labor Relations Act (NLRA) in the 1930s to protect these rights. The law created the National Labor Relations Board (NLRB) to adjudicate complaints about interference with organizing activities and other unlawful acts. In 2020, the NLRB ruled in favor of three former employees of a New Jersey bakery production plant who alleged that their employer wrongfully terminated them because of their union activities, along with other alleged NLRA violations. After an appellate court affirmed the ruling, the NLRB pursued an enforcement action against the employer. This resulted in an award of $2.3 million in damages for the three employees. If you have questions or concerns about organizing or collective bargaining in the workplace, reach out to a New Jersey employment lawyer as soon as possible.

The NLRA protects workers’ rights to organize themselves, either by joining an existing labor union or forming a new one, and to engage in collective bargaining and other “concerted activities” related to organizing or protection. Section 8 of the statute prohibits a variety of actions by both employers and unions. Employers may not interfere with employees’ protected activities, nor may they discriminate or retaliate on the basis of union activities. Once employees have chosen representatives to bargain collectively on their behalf, the employer may not refuse to engage with them.

The three complainants in the NLRB action worked at a plant in Fair Lawn, New Jersey as floor helpers and icing mixers. The plant produces cookies and crackers for a major brand. The complainants had been involved with the union for multiple years. The union, according to the decision from the administrative law judge (ALJ), has been the exclusive representative for plant workers since 1958.
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Labor unions have helped workers achieve significant improvements in pay and working conditions in New Jersey and across the county by enabling them to bargain collectively with their employers. Instead of each individual employee negotiating with their employer, employees can pool their resources and present a united front. Union membership has fallen over the past few decades for a variety of reasons, but this might be changing. As people return to the workforce after the economic slowdown caused by the COVID-19 pandemic, workers are asserting their rights to fair pay, safe work environments, and more. Employees of a major online retailer on Staten Island, for example, voted to unionize in early April 2022. While their employer is contesting the vote, the impact is already spreading to other workplaces, including many workers in New Jersey who have said they plan on holding votes to unionize. If you feel you have been subjected to unlawful practices in the workplace in violation of state or federal law, please contact a New Jersey employment lawyer today.

Section 7 of the National Labor Relations Act (NLRA) protects workers’ rights to engage in activities related to union organizing and collective bargaining. It also protects the rights of workers who do not want to join a union to refrain from these types of activities. Section 8(a) of the statute states that employers may not interfere with union organizing activities. In § 8(b), the statute prohibits unions from “restrain[ing] or coerc[ing]” employees with regard to organizing or membership. Section 9 establishes procedures for employees to vote on forming a union or joining an existing union, and for a union to become the employees’ official representative.

Collective bargaining agreements (CBAs) that require employers to hire union members, known as “closed shop” agreements, are invalid under the NLRA. Some states, known as “right-to-work” states, also prohibit “union shop” agreements, which require employees to join the union once they have been hired. At least twenty-eight states have some form of right-to-work laws as of early 2022. New Jersey is not among them. A CBA between a union and an employer in New Jersey may require union membership. This type of CBA addresses the “free rider” problem, in which employees who are not union members still benefit from the union’s work.
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The National Labor Relations Act (NLRA) protects employees’ right to organize for the purpose of collective bargaining with their employers. They may do this by forming their own union, or by joining an existing union. Employers may not interfere with employees’ organizing activities. The National Labor Relations Board (NLRB) is responsible for enforcing the law. One part of the agency investigates complaints from workers about alleged violations. Another adjudicates those complaints. Region 22 of the NLRB, based in Newark, New Jersey, filed a complaint against a hospital in late 2021 for alleged NLRA violations. The NLRB’s description of the complaint outlines several examples of conduct prohibited by the statute. If efforts to organize at your workplace for the purposes of collective bargaining are being interfered with, reach out to a New Jersey employment attorney to learn more about your rights.

Section 7 of the NLRA states that employees may engage in activities related to organizing and collective bargaining, as well as “concerted activities for the purpose of…mutual aid or protection”. Employees also have the right to refrain from these activities. Section 8(a) of the statute prohibits various acts by employers, including:
– “[I]nterfer[ing] with…or coerc[ing] employees” with regard to their rights under § 7;
– Interfering with the creation or operation of a labor union;
– Attempting to discourage or encourage union membership among employees, with some exceptions;
– Firing an employee or retaliating against them in other ways for filing a complaint or cooperating with an NLRB proceeding; or
– Refusing to engage in collective bargaining with the employees’ authorized representative.

The NLRB may conduct a hearing to adjudicate a complaint alleging violations of § 8. If it finds that an employer has engaged in unlawful activity, it can award damages to an employee such as back pay. It can also order the employer to reinstate the employee and expunge their records of any unlawful disciplinary actions.
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New Jersey’s employment laws prohibit employers from discriminating against employees and job applicants on the basis of a wide range of factors. The New Jersey Law Against Discrimination provides the broadest protection against numerous discriminatory acts and policies, such as race discrimination or sexual harassment. Other state laws bar employers from discriminating on the basis of other factors. New Jersey’s “Smokers’ Rights Act” (SRA), enacted in 1991, addresses discrimination by employers because an employee uses — or declines to use — tobacco products. Other areas of state law restrict smoking in workplaces, so the SRA mainly addresses employers who seek to penalize employees for behavior outside of work.

The SRA states that an employer may not refuse to hire someone, fire them, or “take any adverse action…with respect to compensation, terms, conditions or other privileges of employment” because that person “does or does not smoke or use other tobacco products.” The statute makes an exception for situations when an employer has a “rational basis” for an act that would otherwise be unlawful. This “rational basis” must be “reasonably related to the employment.” When legislators use vague language like this, it is often up to the courts to determine what is “rational” and “reasonable.”

The protections provided by the SRA do not override other state laws addressing tobacco use in public. They also may not conflict with employment policies that limit or prohibit smoking in the workplace during work hours. A law passed by the New Jersey Legislature in 2005, for example, effectively bans smoking in all workplaces throughout the state. The SRA is similar to the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). This statute allows recreational cannabis use and, with some exceptions, bars employment discrimination based on cannabis use outside of work. They are both relatively unexplored areas of New Jersey employment discrimination law.
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New Jersey is an “at-will employment” state, meaning that employers may fire employees for any lawful reason, or for no reason at all, without necessarily having to show good cause. Note that employers are limited to “lawful” reasons for firing someone. New Jersey employment laws and those at the federal level protect workers from termination for a variety of unlawful reasons. Under a new law passed by the New Jersey Legislature and signed by the governor in January 2022, hotels in New Jersey may not fire any employees for a defined period of time after a change in ownership. The new law allows aggrieved employees to file suit for damages.

Numerous New Jersey laws bar wrongful termination by employers. The New Jersey Law Against Discrimination (NJLAD), for example, prohibits employers from discriminating against employees and job applicants on the basis of protected factors like race, gender, religion, and others. Firing someone because of their membership in a protected class is considered unlawful discrimination.

The NJLAD also bars employers from firing someone in retaliation for reporting alleged workplace discrimination. The Conscientious Employee Protection Act (CEPA) protects workers who report other types of unlawful activity, commonly known as whistleblowers. Employers may not fire whistleblowers or take other retaliatory actions towards them.
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Employees’ privacy rights are becoming an increasingly important issue. When many people began working from home because of the COVID-19 pandemic, questions arose about how much their employers could monitor their activities. Even before then, some employers were using potentially intrusive technologies to collect data about their employees. New Jersey’s governor recently signed a bill that will address one type of technology that employers might use to track employees. The new law requires employers to notify an employee before using any sort of device to track the movements of a vehicle driven by that employee. While the bill originally imposed criminal penalties on employers, the final version uses civil penalties instead.

Current New Jersey employment law provides a patchwork of privacy protections for employees. A law passed in 2013, for example, bars employers from requiring employees and job applicants to provide user names or passwords for “personal accounts,” including email and social media accounts that are not connected to those individuals’ employment. At the federal level, the Americans with Disabilities Act restricts the types of questions employers may ask about employees’ health and health history.

The new law, A3950, was signed by the governor on January 18, 2022. It takes effect on April 18. The law deals with the use of “electronic communications devices” and “tracking devices” in vehicles. Employers may want to track the movements of vehicles operated by employees during work hours for a variety of legitimate reasons, including simply wanting to confirm that employees are working during those hours. The sheer amount of tracking technology available now, however, has led to substantial privacy concerns.
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The question of mandatory vaccinations for COVID-19 has proven to be quite controversial over the past year. In late 2021, the White House directed the Occupational Safety and Health Administration (OSHA) to develop a rule requiring all employers with one hundred or more employees to require vaccination against COVID. Lawsuits soon followed challenging OSHA’s authority to do this. The U.S. Supreme Court recently affirmed several lower court orders staying this rule. At the same time, it upheld a rule from the Department of Health and Human Services (HHS) requiring many healthcare workers to get vaccinated. New Jersey healthcare workers are also subject to a series of executive orders from the governor regarding vaccination.

Vaccination mandates are not a new concept in the U.S. The Supreme Court affirmed state laws requiring vaccination against smallpox in 1905 in Jacobson v. Massachusetts. Throughout the COVID-19 pandemic, governments throughout the U.S. have largely left it to employers to decide whether to require their employers to get vaccinated, or they have left the decision to individuals.

Many states require healthcare workers to get vaccinated against COVID. Prior to the pandemic, New Jersey enacted a law requiring employees of hospitals, nursing homes, and home health care agencies to get an annual flu vaccine. The state legislature has not passed any laws requiring COVID vaccinations, but the governor has taken action. In August 2021, Governor Phil Murphy issued the first of several executive orders requiring employees of certain healthcare facilities to get the COVID vaccine. He issued a new order on January 19, 2022, expanding the scope of the prior orders.
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Remote work, telecommuting, and other “alternative” forms of work were already becoming increasingly common before the COVID-19 pandemic. In early 2020, many thousands of workers found themselves having to adapt quite quickly to work-from-home scenarios as part of New Jersey’s public health response. An executive order (EO) from New Jersey’s governor effectively mandated remote work for many employers and employees for over a year. That mandate ended in the summer of 2021, but many workers would prefer to continue working from home. This raises questions about employees’ rights regarding remote work. If you work from home and have questions regarding your rights to continue to work remotely, please contact a New Jersey employment lawyer today.

Work-from-Home Orders

The governor issued EO 107 in the early days of the COVID-19 pandemic, on March 21, 2020. The order directed New Jersey residents to “remain home or at their place of residence” at most times, with exceptions for activities like obtaining food and other goods, seeking medical care, and going to work. Paragraph 10 of EO 107 required employers to “accommodate their workforce, wherever practicable, for telework or work-from-home arrangements.” This provision took effect immediately.

The governor issued EO 243 over a year later, on May 26, 2021. This order revoked paragraph 10 of EO 107, effective June 4. Employers who required their employees to return to the worksite would still be required to follow an order issued last November, EO 192, regarding workplace safety during the pandemic.
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