The New Jersey Employment Law Firm Blog

February 16, 2023

NLRB Rules in New Jersey Workers’ Favor in Labor Disputes

Many of the features that we take for granted in the modern workplace are the result of labor organizing that occurred decades ago. The forty-hour work week and eight-hour work day are examples of benefits that labor unions achieved not only for their own members but for workers across the country. New Jersey employment laws regulate minimum wage and overtime pay thanks to the work of unions. Partly in recognition of the important role labor organizing plays in protecting workers’ rights, Congress enacted the National Labor Relations Act (NLRA) in the 1930s. The National Labor Relations Board (NLRB) has the authority to adjudicate disputes involving alleged interference with organizing activities and other unlawful acts. Two recent NLRB decisions involving disputes arising in New Jersey demonstrate the NLRA’s importance for worker protection.

From workers’ point of view, the two most important provisions of the NLRA are probably § 7 and § 8(a). Section 7 broadly identifies workers’ protected rights, including self-organization and collective bargaining. Section 8(a) defines unfair labor practices by employers. These may include:
– Interfering with workers’ attempts to organize themselves;
– Preventing workers from forming or joining a union;
– Discriminating against employees because of protected union activities; and
– Refusing to engage in collective bargaining with employees’ lawfully chosen representatives.

The NLRB has the authority to investigate alleged violations of workers’ rights. The General Counsel of the NLRB may pursue a claim against an employer before an administrative law judge (ALJ). A party before an ALJ may appeal the ALJ’s decision to the full NLRB. Remedies for aggrieved workers may include back pay and reinstatement to a former position. The NLRB may also order an employer to cease and desist from further violations and to revise its employment policies and practices.
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February 10, 2023

Pay Equity and Transparency Laws in New Jersey

by Resnick Law Group, P.C.

Pay disparities among employees are a common form of employment discrimination. Wage gaps exist based on sex, race, and other categories that are protected by New Jersey employment laws. Addressing the problem can be difficult because the evidence is often hidden from view. Many employers have tried, for example, to prevent employees from discussing their wages. State and federal laws now protect employees’ ability to talk about how much they get paid, but a great deal of information remains concealed. A new pay transparency law in New York City requires employers to disclose pay ranges when they advertise job openings. So far, only one city in New Jersey has this type of law. Advocates for pay transparency laws say that they will help address wage gaps among employees.

Several laws address wage disparities and discrimination in New Jersey. These include the following issues:
– Pay equity;
– Attempts by employers to prevent employees from discussing their rates of pay; and
– Pay transparency.

Pay Equity

The federal Equal Pay Act (EPA), found at 29 U.S.C. § 206(d), prohibits wage discrimination based on sex or gender. Generally speaking, employers must pay employees of any gender the same amount for work that “requires equal skill, effort, and responsibility,” and that employees “perform[] under similar working conditions.” Exceptions include systems based on merit, seniority, “quantity or quality of production,” or “any other factor other than sex.”
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February 3, 2023

Appellate Court Ruling on Data Security Could Affect New Jersey Employees’ Rights

by Resnick Law Group, P.C.

The U.S. legal system has much to say about employees’ duty to safeguard their employers’ proprietary or confidential information. Employees entrust a substantial amount of personal identifying information (PII) to their employers, but New Jersey employment laws have not defined employers’ legal duty to keep this information secure nearly as well. A recent decision from the Third Circuit Court of Appeals allows an employee’s privacy lawsuit against her former employer to proceed. The employee alleged negligence and other common-law claims after a data breach allowed hackers to obtain her PII and publish it on the “dark web.”

Most New Jersey employment laws relating to employee privacy address employers’ actions. A law that took effect in 2022, for example, prohibits employers from installing tracking devices on vehicles that employees drive without notifying them first. A 2013 New Jersey law prohibits most employers from compelling employees to provide access to their social media accounts. Federal laws like the Stored Communications Act could apply to employers who access employees’ private email accounts without permission.

An employer’s legal duty to protect employees’ PII from data breaches is less clear. PII may include birthdates, Social Security numbers, driver’s license numbers, and other information that fraudsters often find quite valuable. Identity theft and related crimes are a serious problem, resulting in billion of dollars in losses every year. The Federal Trade Commission (FTC) reports that it received almost 1.4 million reports of identity theft from consumers in 2021.
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January 27, 2023

Choosing the Right Court for a New Jersey Employment Discrimination Lawsuit

by Resnick Law Group, P.C.

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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January 20, 2023

What the Federal Pardons for Cannabis Possession Could Mean for New Jersey Employees

by Resnick Law Group, P.C.

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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January 13, 2023

How New Jersey Employment Laws Affect Remote Workers

by Resnick Law Group, P.C.

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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January 6, 2023

New Jersey Employment Laws Limit Working Hours for Minors

by Resnick Law Group, P.C.

Children working in dangerous jobs are a common feature in many famous photographs from the late 19th and early 20th centuries. Child labor was common in mines, factories, and other hazardous workplaces until the 1930s when the U.S. Congress passed the Fair Labor Standards Act (FLSA). That law sets strict limits on employment for minors, including the kinds of jobs they may have and the number of hours they may work. New Jersey employment laws also regulate the hours that minors may work. The New Jersey Attorney General (NJAG) recently announced that it had settled a dispute with a restaurant chain over alleged child labor law violations. As part of the settlement, the employer reportedly agreed to pay $7.75 million in damages and fines.

The FLSA’s provisions on child labor prohibit anyone under the age of 14 from working in most jobs. Exceptions may apply with regard to jobs in agriculture, jobs within one’s family, newspaper delivery, and acting for film or television. The original purpose of the FLSA was to prevent children from working long hours in dangerous conditions. Children who are 14 or 15 years old may work limited hours in certain jobs. Between the ages of 16 and 17, the FLSA allows children to work in non-hazardous jobs for a longer number of hours.

Despite many advances in this area, child labor remains an issue throughout the country. A report on children’s rights by the organization Human Rights Watch assigned a letter grade from “A” to “F” to each state based on multiple factors, including child labor laws. While New Jersey received one of the highest grades in the country, it was still only a “C.”

December 16, 2022

New Jersey Lawsuit Alleges an Office-Wide Pattern of Sexual Harassment

by Resnick Law Group, P.C.

Sexual harassment is a form of sex discrimination under New Jersey employment law. It can range from unwelcome workplace behavior, such as sexually-charged jokes or comments, to outright sexual advances or worse. Federal and state laws in New Jersey prohibit this type of conduct, as well as retaliation against workers who report alleged unlawful activity. They also allow employees to recover damages from their employers. In November 2022, a court in Camden County awarded $7 million in damages to a group of plaintiffs who alleged widespread sexual harassment in the dental office where they worked.

Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD) prohibit employment discrimination on the basis of sex. This includes sexual harassment. Federal and state courts have identified two main types of sexual harassment:
– Quid pro quo sexual harassment occurs when an employee or job applicant must submit to sexual demands in order to obtain an employment-related benefit or avoid a penalty. A hiring manager, for example, might tell a job applicant that the job is theirs, but only if they agree to sexual activity.
– A hostile work environment occurs when a workplace features recurring or severe sexual conduct. The harassment must be serious enough that it interferes with someone’s ability to do their job. It may come from anyone in the workplace, such as a supervisor, coworker, or customer.

Eight women filed suit against their employer, a dental practice with offices in several areas of New Jersey, in 2016. They alleged multiple violations of the NJLAD. The defendants include multiple business entities and individual owners, managers, and supervisors. In an amended complaint filed in 2020, the plaintiffs describe the dental offices as a “sexual harassment playground” for several managers. They allege an ongoing pattern of “unwelcome sexual advances and flirting,” “unwanted touching and groping,” and requirements that “certain female employees…submit to sexual advances and flirting as a condition of employment.”
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December 12, 2022

What New Jersey Workers Should Know About Sexual Harassment Laws and Office Holiday Parties

by Resnick Law Group, P.C.

The holiday season often presents opportunities for people to relax with their coworkers at a holiday party hosted by their employers. Office holiday parties sometimes have a reputation for being raucous events, often featuring abundant amounts of alcohol. Unfortunately, sometimes people use holiday parties as an opportunity for misconduct. The fact that people are drinking, or that the office holiday parties only occur once a year, are not excuses for acts that would be unlawful if they occurred at work. In fact, office holiday parties are part of the work environment regardless of where they take place. Unwanted sexual advances are just as unlawful at a holiday party as in the workplace. Employees who experience sexual harassment at a holiday party may have legal rights under New Jersey employment laws.

What Is Sexual Harassment?

Sexual harassment is a type of sex discrimination under laws like the New Jersey Law Against Discrimination (NJLAD) and Title VII of the Civil Rights Act of 1964. It can take many forms, but it generally involves unwelcome conduct of a sexual nature that is based, at least in part, on an employee’s sex. It can involve a wide range of behavior, from overt sexual advances to sexually-charged comments or jokes. Courts have identified two broad categories of sexual harassment, both of which can occur at holiday parties.

Quid Pro Quo Sexual Harassment

This type of sexual harassment occurs when someone in a supervisory or managerial position expects an employee to agree to some sort of sexual activity as a condition of their employment. The term “quid pro quo” refers to an exchange. In this type of situation, an employee is expected to agree to a sexual demand in exchange for getting a job, keeping a job, or receiving better work conditions. A classic example involves a restaurant manager who gives the best shifts to servers who submit to whatever sexual activity they are demanding.
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December 2, 2022

New Proposed Independent Contractor Rule Could Help New Jersey Workers

by Resnick Law Group, P.C.

Employment laws in New Jersey and at the federal level guarantee a minimum wage and overtime pay for many employees, as well as many other protections. In order to take advantage of these legal safeguards, a worker must demonstrate that an employment relationship exists between them and their employer. The definition of an “employee” in federal and New Jersey employment statutes is rather vague. The U.S. Department of Labor (DOL) recently issued proposed rules that would establish a new test to determine whether a worker is an employee or an independent contractor. The current rule, which the DOL put in place under the previous presidential administration, is generally favorable to employers. New Jersey’s rule for state law claims presumes that a worker is an employee unless an employer can prove otherwise.

The employer-employee relationship is a complicated concept, legally speaking. It draws on legal theories about an employer’s authority to exert control over a person. For example, how much say does an employer have over when, where, and how a worker does their job? Do they have a specific workstation, monitored by supervisors, where the worker must be during specific working hours? If so, the worker is probably an employee. An independent contractor typically has more autonomy over their work. A large body of federal and state laws protect employees’ rights. An independent contractor’s rights depend on the terms of their contract with the employer.

The DOL’s current rule tends to favor employers. Unlike the New Jersey rule, the federal rule does not presume employee status. It uses two “core factors” to determine a worker’s status: (1) How much control is the worker able to exert over their work? (2) Are they able to earn more money by any means other than increasing their production or working more hours? The more control a worker has over their work and their income, the more likely a federal court will be to classify them as an independent contractor.
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