Articles Posted in New Jersey Labor Law

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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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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