Articles Posted in New Jersey Labor Law

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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In February 2023, the New Jersey governor signed a bill that creates a Temporary Worker Bill of Rights (TWBOR). Employment statutes typically only protect people who meet a fairly specific definition of an “employee” that often excludes temporary workers. The TWBOR expands the protections offered by many New Jersey employment laws to include temporary workers employed by staffing agencies. Its effective date was August 5, 2023, 180 days after the date the governor signed it. In May, several trade organizations that represent staffing agencies filed a federal lawsuit seeking to enjoin the TWBOR on constitutional and statutory grounds. A judge denied their request for a preliminary injunction in late July, allowing the TWBOR to take effect on schedule.

The TWBOR covers temporary workers in multiple industries, including security, building maintenance, personal care services, food preparation, construction, manufacturing, repair, and transportation. These workers are directly employed by staffing agencies and provide services to client businesses. According to the New Jersey Legislature, temporary workers receive significantly lower pay than other employees for the same work and are more vulnerable to abusive workplace practices.

The new law imposes disclosure and recordkeeping requirements on temporary staffing agencies. It limits agencies’ ability to charge temporary workers for expenses like transportation to and from worksites. The provisions of the TWBOR that took effect on August 5 include a requirement that temporary workers receive wages that are at least equal to “the average rate of pay and average cost of benefits” for employees of the client businesses that do “the same or substantially similar work.” Violations of many of these provisions may result in civil fines and liability for damages to aggrieved temporary workers.
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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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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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The United States has been subject to multiple declared States of Emergency (SOEs) and Public Health Emergencies (PHE) since March 2020. The COVID-19 pandemic was just beginning at that point, and it continued to be a major concern well into 2021 and 2022. As of May 2023, the federal government and the State of New Jersey have ended some or all of their emergency declarations. The New Jersey governor officially ended the state’s PHE more than a year ago, in March 2022, while the state’s SOE remains in place. Most recently, the federal PHE ended on May 11, 2023. The state and federal emergencies have had a major impact on how New Jersey employment laws protect workers. The end of those declarations could also impact New Jersey workers.

What Was the Public Health Emergency?

The federal government issued emergency declarations in early 2020. The New Jersey governor issued Executive Order (EO) 103, which declared both a SOE and a PHE, on March 9, 2020.

Emergency declarations give various extra powers, mostly related to healthcare, to local, state, and federal governments. This often includes mandates affecting employers. EO 292, issued in March 2022, ended the New Jersey PHE but left the SOE in place. The national SOE ended on April 10, 2023, followed by the PHE on May 11.

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New Jersey’s employment laws protect workers in this state from unlawful discrimination and retaliation, guarantee a minimum wage for many employees, and ensure that they will receive overtime pay for overtime work. In order for an individual to enjoy many of these legal protections, however, an employer-employee relationship must exist. Certain employment arrangements do not meet many legal definitions of “employment,” leaving some workers with no recourse if their employers underpay them or subject them to other forms of unfair treatment. A new law in New Jersey, the Temporary Worker Bill of Rights (TWBOR), will expand legal protections for workers employed by temporary staffing agencies. The law will take effect in two stages later this year.

The bill that became the TWBOR, A1474, made its way through the New Jersey Legislature for over a year before it finally became law in February 2023. The Assembly addressed the need for the law in the section on findings and declarations. More than 127,000 workers in New Jersey are employed by temporary staffing agencies. This includes around one hundred licensed agencies and an unknown number of unlicensed ones.

Temporary workers receive pay from their agencies for work performed for clients. According to AB1474, they earn an average of 41% less than employees who perform similar work as part of a formal employment relationship. Black and Latino workers are overrepresented among temporary workers when compared to overall employment in New Jersey. Temporary workers are generally more vulnerable to a wide range of exploitative or abusive practices, hence the need for the TWBOR.
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Mass layoffs can create problems for employees, their families, and, in some cases, entire communities that depend on a single employer. Federal and New Jersey employment laws attempt to limit the impact of large-scale worker layoffs by requiring employers to give advance notice to workers who will be included in an upcoming layoff. The federal Worker Adjustment and Retraining Notification (WARN) Act of 1988 requires covered employers to give sixty days’ notice for sufficiently large layoffs. New Jersey enacted its own law, the Millville Dallas Airmotive Plant Job Loss Notification Act or “New Jersey mini-WARN Act,” in 2007. The legislature enacted a bill expanding the mini-WARN Act in 2020, but the COVID-19 pandemic interfered with its implementation. A new bill, signed into law by the governor in January, changes the bill’s effective date to April 10, 2023.

The New Jersey law gets its official name from a 2004 plant closing in Millville that reportedly resulted in the loss of several hundred jobs. It became law in December 2007 and took effect immediately. Prior to the legislature’s 2020 amendments, the statute applied to employers with at least one hundred full-time employees. It defined a “part-time employee” as anyone who worked less than twenty hours per week on average or had worked for the employer for less than six months. The statute applies to layoffs at “establishments,” defined as locations that an employer has operated for more than three years.

The mini-WARN Act applied to mass layoffs, also known as reductions in force (RIFs) that affected either:
– Five hundred or more employees at an establishment; or
– Fifty or more employees at an establishment, provided that they comprise at least one-third of the total number of people employed at that location.
Employers had to give notice at least sixty days in advance of a RIF. The statute required them to pay severance to any employee to whom they did not provide the required notice. The amount was equal to one week of pay for each full year of employment.
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Federal and state laws limit where someone may file a lawsuit. The court must have the legal authority to hear the case and issue rulings affecting the defendant, known as jurisdiction. The location of the court, known as the venue, must have some connection to the events of the case or either of the parties. In many lawsuits, determining jurisdiction and venue is easy, such as when both parties are located in the same vicinity. New Jersey employment laws apply to employees, employers, and events in New Jersey. It can be more complicated when the events or the parties’ locations cross county or state lines. A recent decision by the Third Circuit Court of Appeals, for example, addressed an employment discrimination and retaliation lawsuit that involved events in both New Jersey and Connecticut.

The New Jersey Law Against Discrimination (NJLAD) bars New Jersey employers from discriminating against employees and job seekers on the basis of a wide range of factors. These include race, religion, sex, disability, and sexual orientation. The statute also prohibits retaliation by employers against employees who report unlawful acts, assist in investigations, or engage in other protected activities. At the federal level, Title VII of the Civil Rights Act of 1964 has similar provisions, although its protections against workplace discrimination are not as broad.

Both of these statutes provide guidance on where employees may file a lawsuit. Title VII states that an individual may file a lawsuit in U.S. district court in the district where:
– The alleged violation occurred;
– Relevant employment records are located;
– The individual would have worked had the unlawful act not occurred; or
– The employer’s main office is located.
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The legal status of cannabis has gone through a number of changes in recent years, at least at the state level. Cannabis remains illegal under federal law. Medical use of cannabis has been legal under New Jersey law, however, for over a decade. A state law allowing limited possession and use for recreational purposes took effect in 2021. These changes impact New Jersey employment laws with regard to issues like mandatory drug testing, drug-free workplaces, and the use of a now-legal substance by employees outside of work hours. In October 2022, the White House announced that the president would be issuing pardons for people with federal convictions for simple cannabis possession. This raises questions about how New Jersey and federal laws relating to the use of criminal history in employment decisions will affect pardoned workers.

New Jersey Criminal History Discrimination

Criminal history is not a protected category under federal or state employment discrimination laws. Workers who have arrest or conviction records do, however, have some protection during the job application process. Many employers have tried to screen applicants with criminal records, even if an applicant’s particular history would have no bearing on the job they are seeking. This makes it all but impossible for thousands of people to find work.

Under the Opportunity to Compete Act (OTCA), New Jersey employers may not ask job applicants about criminal history at the beginning of the hiring process. The statute allows employers to make inquiries about criminal history once an applicant has completed an initial interview. Exceptions apply for certain jobs, such as law enforcement or professions where another state or federal law requires a criminal background check.
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Remote work has become common for many workers in New Jersey and around the country. The COVID-19 pandemic may have caused a transition that was already underway to speed up. The increasing amount of remote work, however, raises legal questions that might not have easy answers. When an employee who lives in New Jersey works from home for their New Jersey-based employer, it is clear that New Jersey employment laws apply to them. What happens, though, when an employee works from their New Jersey home for an employer in another state? Determining which state’s laws should apply has proven to be difficult.

The question of which state’s law applies when a work-from-home arrangement crosses state lines has no simple answer. The legal system has only begun to address it. State employment laws can significantly differ from one state to another. New Jersey offers wide-ranging protections against employment discrimination, for example, with far more protected categories than many other state laws. The state government has issued regulations allowing employers with virtual workers to make posters advising employees of their rights available online. Many other questions remain unanswered.

At least one New Jersey court has ruled on how state law applies to state residents who work outside the state. A 2013 federal court decision held that the New Jersey Law Against Discrimination (NJLAD) did not cover a New Jersey resident who worked out-of-state. The plaintiff lived in New Jersey. His employer, however, was based in Pennsylvania, and almost all of the plaintiff’s job duties occurred there. The plaintiff, who was alleging discrimination and harassment, argued that the NJLAD should apply since he received harassing messages via text and email while at home in New Jersey. The court disagreed.
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