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COVID-19 RESOURCE CENTER FOR NJ EMPLOYEES

Articles Posted in New Jersey Labor Law

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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Vaccinations are among the most effective methods of fighting the COVID-19 pandemic, according to public health officials and other experts. The state government has established vaccination requirements for workers in certain fields. In early September 2021, the White House announced an upcoming measure that would direct large private employers to require their employees to get the vaccine or submit to weekly testing. This measure has not taken effect yet, and the actual rule might not be available for at least several more weeks. It is worthwhile to examine how this might affect New Jersey employees.

Current New Jersey Vaccine Requirements

New Jersey had no official vaccine mandates until late summer 2021. On August 2, the governor announced that certain workers would have to get vaccinated or get tested for COVID at least once a week. The governor’s order applies to state hospitals and correctional facilities, as well as private prisons, nursing homes, hospitals, inpatient rehab facilities, and home health agencies. These requirements took effect on September 7.

Additional vaccination requirements will take effect on future dates for employees in other workplaces, including:
– October 18: schools, state agencies, and public colleges and universities; and
– November 1: child care facilities.
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Since taking office in January of this year, the new presidential administration has made numerous changes to federal regulations intended to help New Jersey employees and others throughout the country. This includes adjustments by the National Labor Relations Board (NLRB) to its interpretation of federal labor law. The NLRB’s general counsel (GC), who is responsible for investigating alleged unfair labor cases and pursuing actions against employers, issued two memoranda in August 2021 outlining changes in procedures and priorities. One memorandum announces that the GC will be reviewing cases in which the NLRB overturned its own precedents in recent years. This could signal a new direction for the NLRB, which seems to have taken a pro-employer stance in many recent decisions. The second memorandum sets new enforcement priorities for the GC’s office.

Section 7 of the National Labor Relations Act protects employees’ right to organize themselves for the purpose of collective bargaining. This could include joining an existing union or forming a new one. The statute also protects workers who engage in “other concerted activities” related to organizing “or other mutual aid or protection.” Under § 8(a) of the statute, employers may not interfere with employees who are exercising any of these rights, nor may they discriminate or retaliate against employees who engage in protected or concerted activities.

Courts and the NLRB have interpreted “concerted activities” rather broadly at various times since the NLRA’s enactment in 1935. A 2019 decision by the NLRB, however, overruled an earlier decision that took an expansive view of “concerted activities.” The board stated at the time that it sought to overrule cases “that erroneously shield[] individual action” as opposed to concerted activities. In Memorandum GC 21-04, issued on August 12, 2021, the GC includes the 2019 decision and several others in a list of NLRB decisions addressing the definition of “concerted activity.” This is one of numerous areas of labor law where the GC intends to review the NLRB’s recent decisions.
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We are now almost a year and a half into the COVID-19 pandemic, and while the situation has improved considerably, we still face many problems. Several different vaccines are now available to most of the population, and they have shown that they are very effective against the early strains of the virus. Like all vaccines, though, they are not 100% effective. As of mid-July 2021, nearly seventy percent of adults in New Jersey are fully vaccinated. In some areas of the state, however, the rate remains below fifty percent. This raises two major questions for us as employment lawyers. First, what does New Jersey law have to say about employers that require their employees to get vaccinated? The answer to this question has changed over the last year, but it appears to be resolving in favor of employer vaccine mandates. The second question is whether a New Jersey employer that does not require vaccines violates workplace safety laws. This question does not have a clear answer.

Employer Vaccine Mandates

The only specific vaccine requirement found in New Jersey’s statutes, N.J. Rev. Stat. § 26:2H-18.79, involves the influenza vaccine. It requires healthcare workers to get the influenza vaccine annually. Employees cannot opt out of the flu vaccine, except for certain medical reasons.

State health officials are taking the position that employers can mandate vaccination for COVID. Guidance issued by the New Jersey Department of Health in March 2021 states that employers can require employees to get the vaccine as a condition of returning to the workplace, with three exemptions:
1. A disability that precludes an employee from getting the vaccine;
2. A doctor’s recommendation not to get the vaccine during pregnancy or breastfeeding; or
3. A “sincerely held religious belief, practice or observance.”
An employer must provide a reasonable accommodation to an employee who falls under one of these exemptions, unless doing so would pose an undue burden.
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Federal law protects workers’ right to organize for the purpose of negotiating with their employers, such as by joining or forming a labor union. Some employers look for creative ways to discourage their employees from organizing. The National Labor Relations Act (NLRA) prohibits employers from interfering with activity related to labor organizing, but it often provides leeway allowing employers to discourage workers without quite reaching the level of unlawful coercion. New Jersey employment law is generally favorable to unions, but employers in this state can still take advantage of gaps in the NLRA’s protections. A bill currently pending in the U.S. Congress, the Protecting the Right to Organize (PRO) Act of 2021, would amend the NLRA to include far greater protections for workers. The House of Representatives passed it in March 2021, and it awaits action by the Senate.

Section 7 of the NLRA, codified at 29 U.S.C. § 157, states that employees have the right to organize themselves in order to bargain collectively with their employers. They may do this by joining an existing labor union, or they can form a union of their own. The law also protects workers’ right to engage in “concerted activities” related to labor organizing. Courts have taken a broad view of what counts as protected concerted activity.

The NLRA’s restrictions on employer actions are found in § 8(a) of the law, or 29 U.S.C. § 158(a). Employers may not “interfere with, restrain, or coerce employees” who are exercising their rights under § 7. They also may not discriminate or retaliate against employees because of their protected activities.
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Workers are often best able to negotiate with their employers for better pay, safer or improved working conditions, and other features of employment when they can do so as a group. Many employers prefer, however, that their employees not do this. Federal and New Jersey labor laws protect workers’ right to organize for various purposes, including advocacy on co-workers’ behalf. The National Labor Relations Board (NLRB) investigates and adjudicates alleged violations of workers’ rights under federal law. A recent investigation by the NLRB found that a major online retailer violated the rights of two workers who advocated for better working conditions during the COVID-19 pandemic in 2020. While it is not a formal decision by the Board, it could offer guidance to workers advocating for change at employers in New Jersey and around the country. If you have concerns regarding wage or labor practices at your place of employment, consider reaching out to a New Jersey employment lawyer to discuss your situation.

Section 7 of the National Labor Relations Act (NLRA), found at 29 U.S.C. § 157, guarantees the right of employees to “self-organization.” They can join an existing labor union or form their own. They can use collective bargaining procedures in negotiations with their employers. Finally, they can “engage in other concerted activities” related to “collective bargaining or other mutual aid or protection.” The term “concerted activities” can cover a broad range of acts.

Under § 8(a)(1) of the NLRA, id. at § 158(a)(1), an employer commits an “unfair labor practice” if they restrain or interfere with any activities that are protected by § 7. Section 8(a)(3) bars employers from discriminating against employees because of “membership in any labor organization.” New Jersey has even more extensive protections for employee organizing. See, e.g. N.J. Rev. Stat. § 34:13A-5.3, 34:13B-2.
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New Jersey employment laws protect whistleblowers who report alleged wrongdoing by their employers or who cooperate in investigations by providing evidence or testimony. Information provided by employees and others with knowledge of the inner workings of a business or organization is invaluable in helping law enforcement investigations of suspected unlawful activity. Many would-be whistleblowers hesitate to come forward, however, for fear of losing their jobs or facing other consequences in the workplace. Laws like New Jersey’s Conscientious Employee Protection Act (CEPA) prohibit employers from retaliating against employees who engage in certain protected activities. A lawsuit filed in late 2020 alleges that a New Jersey labor union retaliated against the plaintiffs for their support of a corruption investigation, along with other whistleblowing activities.

CEPA prohibits employers from taking “retaliatory action” against employees who engage in certain activities. The statute defines “retaliatory action” as an “adverse employment action taken against an employee,” including termination. N.J. Rev. Stat. § 34:19-2(e). Activities protected by CEPA include:
– Reporting, or threatening to report, activity that an employee reasonably believes is in violation of civil, administrative, or criminal law to a supervisor or government agency;
– Providing evidence or testimony to a government agency as part of an investigation of alleged unlawful activity; and
– Refusing to participate in an activity that the employee reasonably believes violates a civil or criminal statute or administrative rule, is otherwise fraudulent, or constitutes a threat to public safety or the environment. Id. at § 34:19-3.

The New Jersey Law Against Discrimination (NJLAD) prohibits retaliation against employees who report or oppose unlawful acts by their employers. It also prohibits derivative retaliation against employees who have “aided or encouraged any other person” asserting their rights under the law. Id. at § 10:5-12(d).

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Employers in New Jersey have a legal obligation to provide a reasonably safe work environment for their employees, free of not only discrimination and harassment but also unsafe conditions that pose a risk of injury or death. Multiple laws at both the state and federal levels address employers’ liability for employees’ workplace injuries. Many injuries fall under the state’s workers’ compensation law, which limits workers’ access to the courts except in cases involving “intentional wrongs.” As we near the start of the second year of the coronavirus pandemic, the courts are receiving numerous lawsuits filed by New Jersey workers and their families seeking to hold employers liable for injuries and deaths caused by the novel coronavirus. A lawsuit filed last summer in Hudson County, for example, alleges wrongful death and other claims against the state’s public transit authority on behalf of an employee who died of COVID-19 last spring.

The New Jersey workers’ compensation law is, in essence, a compromise between employees and employers. Employers pay into an insurance fund, similar to the funds that support the state’s unemployment and disability compensation systems. An employee who suffers a work-related injury on the job is guaranteed compensation from this fund without having to prove that their employer was at fault. In exchange, the employee waives their right to pursue greater damages in court. The one exception to this waiver of litigation rights applies when the injuries are the result of “intentional wrong.” N.J. Rev. Stat. § 34:15-8.

The workers’ compensation statute does not define the term “intentional wrong,” but various court decisions have offered some guidance. With regard to COVID-19, questions of legal liability are still largely hypothetical since New Jersey courts have yet to rule on any major disputes. Employers are sure to dispute whether COVID-19 constitutes a work-related injury, along with disputes over whether any intentional acts on their part caused an employee’s illness. Another factor, of course, could be efforts by some in the U.S. Congress to shield employers from liability for COVID-19 risks in the workplace.

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Coming to work while sick is always risky, but far too many workers in New Jersey and around the country often feel they have no other choice. They might need the income from a shift, or they might fear losing their job if they call in sick. During the COVID-19 pandemic, the risks that a sick employee poses to their co-workers, customers, and others are far greater. The New Jersey Legislature enacted a law earlier this year that protects employees from losing their jobs or facing other discriminatory actions if they request time off from work during the current public health emergency because they are or might be at risk of transmitting an infectious disease. The law took effect immediately upon its approval by the governor on March 20, 2020. In September, the New Jersey Department of Labor and Workforce Development (NJDOL) issued a final set of regulations implementing these employee protections.

The New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating against workers on the basis of numerous factors. The extent to which the law protects employees and job applicants from discrimination based on health conditions is a matter of ongoing dispute, particularly with regard to an infectious disease like COVID-19. The NJLAD’s protected categories include “disability” and “genetic information,” but the definitions provided for these terms primarily deal with long-term conditions rather than acute infections. See N.J. Rev. Stat. §§ 10:5-5(q), (oo); 10:5-12(a). The only infectious disease specifically mentioned in the text of the statute is HIV and AIDS.

The new law, A3848, does not limit its protection specifically to employees who may have contracted COVID-19. It is, however, limited to the current public health emergency. New Jersey Governor Phil Murphy signed Executive Order (EO) 103 on March 9, 2020, at a time when there were about eleven known cases of COVID-19 in New Jersey. In just under nine months, that number has increased to over 350,000 in this state alone. The governor has extended the public health emergency nine times, most recently with EO 200 on November 22.

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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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