New Jersey Labor Law

January 22, 2021

New Jersey Lawsuit Seeks to Hold Employer Liability for Employee’s Death from COVID-19

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.

December 17, 2020

New Jersey Employment Discrimination Related to COVID-19 During Public Health Emergency Prohibited by Law

by Resnick Law Group, P.C.

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.

September 25, 2020

How Federal and State Laws Regulating Mass Layoffs Could Affect New Jersey Workers

by Resnick Law Group, P.C.

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.

June 5, 2020

New Jersey Legislature Passes New Laws Intended to Help Employees Affected by the Coronavirus Pandemic

by Resnick Law Group, P.C.

The coronavirus pandemic has hit New Jersey harder than most U.S. states, and the economy will surely take some time to recover. The New Jersey Legislature has passed multiple bills in recent months intended to help workers affected by the pandemic. Notable bills include one that modifies the state’s temporary disability insurance system and one that addresses retaliation by employers against quarantined workers. If you feel you may need or have had to take leave from work due to the coronavirus pandemic and have concerns regarding your employment status or benefits, please contact a New Jersey employment attorney as soon as possible.

State of Emergency

Several new laws make changes that only apply during a public health emergency. The governor first declared an emergency in relation to the coronavirus on March 9, 2020. A declaration of emergency expires after thirty days unless extended by the governor. He has extended the March 9 declaration twice so far, on April 7 and May 6.

Temporary Disability Insurance

The New Jersey Temporary Disability Benefits Law (TDBL) provides disability coverage for workers who are unable to work because of “an accident or sickness” that is not due to an on-the-job incident, and which is not otherwise covered by the state’s workers’ compensation law. N.J. Rev. Stat. § 43:21-29. It also allows “family temporary disability leave” for a worker who must care for a family member with a “serious health condition,” defined to include conditions requiring inpatient care or other ongoing medical care. Id. at §§ 43:21-27(o)(1), (s). Under ordinary circumstances, no benefits provided by the TDBL are payable for the first seven days of a disability period. Id. at § 43:21-39(a).
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May 20, 2020

New Jersey Expands Earned Sick Leave and Family Leave Programs in Response to COVID-19

by Resnick Law Group, P.C.

New Jersey remains in a public health emergency because of the global coronavirus pandemic. “Stay at home” orders appear to have slowed the spread of the virus, but they have also led to widespread economic problems. S2304, a bill expanding earned sick leave (ESL) and family leave benefits in New Jersey, became law on March 25, 2020. The bill addresses the availability of these benefits during a state of emergency or when public health officials or healthcare providers have ordered someone into quarantine or isolation.

Public Health Emergency

The governor first declared a state of emergency on March 9, 2020. He extended the public health emergency on April 7, and again on May 6. A declaration gives the governor authority to direct resources towards dealing with the emergency. This can include ordering businesses to close and ordering individuals to remain at home.

New Jersey’s Earned Sick Leave and Family Leave Laws

The ESL law took effect in November 2018, six months after the governor signed the bill. It provides workers with one hour of paid sick leave for every thirty hours that they work, at the same rate of pay as if they were at work. Employees may carry up to forty unused hours over from one year to the next.

April 10, 2020

What Are New Jersey Workers’ Rights If Their “Non-Essential” Workplace Stays Open?

by Resnick Law Group, P.C.

The coronavirus and the illness that it causes, COVID-19, have made vast changes to workplaces in New Jersey, the U.S., and worldwide over the course of less than a month. Public health experts have recommended “social distancing” as a way to slow the spread of the virus while the healthcare system rushes to get ready. The governor of New Jersey has issued a series of executive orders (EOs) closing many “non-essential” businesses and instructing others to allow remote working whenever possible. The EOs direct businesses to follow public health guidelines in order to protect workers who must report to their workplaces. This raises important legal questions that have no clear answers yet.

In this environment of social distancing, what are employees’ rights if their employer requires them to come to work when their business is not “essential”? What if their employer will not allow them to work remotely, even though doing so would be feasible? What if an employer endangers employees’ health by failing to follow public health officials’ recommendations?

Executive Orders and the Effect on New Jersey Businesses

EO 104, signed on March 16, ordered certain businesses to close their facilities to the public, including gyms, movie theaters, and nightclubs. Restaurants could only remain open for take-out orders and food delivery. “Non-essential” retail businesses were ordered to cut their hours. Retail operations deemed “essential” include:
– Grocery stores;
– Pharmacies;
– Healthcare facilities; and
– Gas stations.
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March 20, 2020

New Jersey Sick Leave Laws in a Time of Public Health Alerts

by Resnick Law Group, P.C.

American society often takes an odd view of sick leave. A common way for someone to demonstrate their dedication to their job is to say that they have “never taken a sick day.” The implication behind this claim is not necessarily that they never got sick, but rather that they continued showing up to work even if they were sick. Everyone gets sick at some point, though, whether it is a minor cold, a major flu, or something even worse. Some people might never take sick leave because they feel like they should not, while other people might not have the option of missing work. From an employee’s point of view, New Jersey employment laws are more generous than those of many states in this regard.

Showing up to work regardless of illness might seem like an admirable display of determination, but it could put one’s co-workers at risk of getting sick. This is especially true in early 2020, when COVID-19, also commonly known as the coronavirus, has led public health officials to advise people displaying certain symptoms to stay home or seek immediate medical attention. Unfortunately, not everyone can do this.

Many workers in the U.S. have little to no available sick leave, paid or unpaid. Even if they have the means to see a doctor, they might believe that they have no choice but to go to work. Workers in New Jersey need to know their rights under state and federal sick and medical leave laws, so that they can better understand their options if they need to isolate themselves.

February 21, 2020

New Jersey Legislature Amends “Wage Theft” Law Passed in 2019 to Address Employee Misclassification

by Resnick Law Group, P.C.

New Jersey passed significant legislation in 2019 taking on wage theft by employers. The new law provides not only civil and administrative penalties, but also criminal consequences for employers that fail to pay their employees what they are owed. A series of bills passed in early 2020 addresses New Jersey employee misclassification, a related issue that deprives employees of their legal rights. Misclassification can also cause underfunding of important state programs, including the unemployment and disability insurance funds. One of these bills amends the wage theft law to add new means of holding employers liable for violations of state employment tax laws due to misclassification. This new law does not provide employees with a cause of action, but it benefits them by allowing state regulators to ensure employers are paying their share of employment taxes.

Employee Misclassification

Employee misclassification effectively strips workers of legal protections. Multiple statutes at the federal, state, and local levels protect employees by, to name only a few, guaranteeing a minimum wage and overtime compensation, regulating workplace safety, and prohibiting workplace discrimination and harassment. Legal protections for independent contractors are limited to the rights enumerated in their contracts and the general principles of contract law. Some employers see an incentive to classify workers as independent contractors when they are actually employees, since they owe fewer legal duties to independent contractors.

Employers contribute to multiple programs that benefit employees through the payment of employment taxes. At the federal level, this includes a share of payroll taxes that go to the Social Security and Medicare programs. State employment taxes fund unemployment insurance, disability insurance, and workers’ compensation. Misclassification results in employers not contributing to these programs, potentially leaving them without adequate funding. Since independent contractors are considered “self-employed,” it can also result in misclassified workers having to shoulder their employers’ share of those taxes themselves.

February 4, 2020

New Laws, Administrative Actions Take on Employee Misclassification in New Jersey

by Resnick Law Group, P.C.

New Jersey labor laws protect workers’ rights to a minimum wage, overtime pay, unemployment insurance, a workplace free of discrimination and harassment, and other matters. These laws regulate the relationship between employers and employees. Unfortunately, some employers try to evade their responsibilities by classifying employees as independent contractors. Employee misclassification is a violation of state law. New Jersey employment law places most of the burden of proof on employers to establish that an individual is not an employee. Legislation signed by the Governor in January 2020 assesses penalties for misclassification and requires employers to post notices of workers’ rights. In late 2019, the New Jersey Department of Labor and Workforce Development (LWD) demanded almost $650 million in unpaid employment taxes and interest from a rideshare company that has frequently been the subject of misclassification complaints.

Employees in New Jersey are covered by a rather vast array of federal, state, and local employment laws. They cover issues ranging from wages and hours to workplace safety. Some statutes only apply to employers with a minimum number of employees, while others apply to all employers. Independent contractors are not covered by these laws. Their legal protections are largely limited to the terms of their contracts and contract law. Many statutes do not provide a particularly helpful definition of an “employee.” The federal Fair Labor Standards Act, for example, defines an employee as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1).

State law fills in gaps left by federal statutes. In 2015, the New Jersey Supreme Court adopted a definition of “employee” known as the “ABC test,” based on §§ 43:21-19(i)(6)(A) through (C) of the New Jersey Revised Statutes. An individual is presumed to be an employee unless the employer can establish three elements:

1. The employer does not exercise control over how the individual performs their job, both in the text of the contract and in actual practice;
2. The individual’s job is outside the scope of the employer’s regular business, or the individual performs their job away from the employer’s business premises; and
3. The individual works in their own separate business or trade.

January 3, 2020

New Law Bars New Jersey Employers from Asking Job Applicants About Salary History

by Resnick Law Group, P.C.

Employers in New Jersey may no longer ask job applicants how much they made at their last job, thanks to a new law passed by the Legislature in June 2019 and signed by the Governor in July. The bill amends several provisions of New Jersey employment discrimination laws to prohibit employers from “screen[ing] a job applicant based on the applicant’s salary history.” Inquiries about salary history can offer employers a way around laws against pay discrimination, such as the federal Equal Pay Act (EPA). When an employer bases hiring or salary decisions on how much an applicant made at their previous job, it tends to perpetuate existing wage imbalances. As of December 2019, sixteen states, the District of Columbia, Puerto Rico, and multiple local governments have enacted laws prohibiting salary history inquiries to various degrees.

The EPA prohibits discrimination in pay on the basis of gender, meaning that employers must pay male and female employees the same for work that “requires equal skill, effort, and responsibility…under similar working conditions.” 29 U.S.C. § 206(d)(1). It makes exceptions for different rates of pay based on seniority, merit, “quantity or quality of production,” or “a differential based on any other factor other than sex.” Id. Bans on salary history inquiries are partly motivated by concerns that past salary could fit into that last category. The status quo in the United States in late 2019 is that multiple wage gaps exist. People can argue over what causes these gaps, but their existence is difficult to dispute. Employment decisions based on salary history, regardless of an employer’s intent, can serve to entrench the disparities.

State laws governing salary history inquiries vary widely in what they prohibit and allow. Alabama, for example, passed a law around the same time as New Jersey that bars employers from making an adverse employment decision based solely on an applicant’s refusal to provide information on their salary history. It does not expressly prohibit employers from asking for such information. California’s law, enacted in 2017, bars employers from asking, and goes much further. Employers in California may not “rely on the salary history information of an applicant for employment” in either hiring or salary decisions, unless the applicant voluntarily discloses the information.