Articles Posted in New Jersey Labor Law

“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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Protecting the rights of employees and job applicants in New Jersey and around the country requires a complex system of courts and government agencies. Both federal and New Jersey employment laws rely on agencies to interpret, implement, and enforce those laws. Many employment disputes must go through an administrative process before a person can file a lawsuit in court, such as the process of filing a discrimination charge with the Equal Employment Opportunity Commission (EEOC). Some agencies have administrative law judges (ALJs) who can rule on disputes. This helps keep court dockets from becoming even more overloaded. If a case does go before a federal court, a 1984 U.S. Supreme Court decision states that judges should defer to agencies’ interpretations of the law in certain situations. Two cases currently pending before the Supreme Court could upend this system.

Administrative Law Judges

Many employment law disputes go before ALJs, who have the authority to adjudicate certain matters. ALJs with the U.S. Department of Labor handle various employment-related claims. The National Labor Relations Board (NLRB) has ALJs who adjudicate labor complaints.

ALJs are not part of the federal court system. Article III of the U.S. Constitution addresses the Judicial Branch of the federal government. ALJs are part of the system of administrative agencies under the Executive Branch. This is part of the dispute now before the Supreme Court in Securities and Exchange Commission v. Jarkesy.
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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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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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