The New Jersey Employment Law Firm Blog

May 25, 2021

Congress Considers Bill That Would Further Protect Workers’ Right to Organize

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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May 17, 2021

New Minimum Wage Established for Employees of Federal Government Contractors in New Jersey

by Resnick Law Group, P.C.

The minimum wage is the lowest amount that an employer can pay to an employee under federal and state law in New Jersey, provided that employee is not exempted from laws governing wages and hours of work. The New Jersey Legislature has established a minimum wage for the state that is greater than the federal rate. Employee advocates have sought amendments to federal law that would raise the minimum wage from its current level of $7.25 per hour to $15 per hour. These efforts have not been successful, but there is good news for some workers in New Jersey. The White House issued an executive order (EO) that will raise the minimum wage for federal government contractors to $15 per hour. The EO will take effect in early 2022. If you are concerned that your employer is not paying you the minimum wage, reach out to a New Jersey employment attorney to learn more about your rights.

Federal Minimum Wage

Congress first established a nationwide minimum wage in June 1938, when it passed the Fair Labor Standards Act (FLSA). The first minimum wage was $0.25 per hour. Congress has amended the FLSA multiple times to raise the minimum wage. The last time this happened was the Fair Minimum Wage Act of 2007, which raised the minimum wage to $7.25 per hour by 2010. See 29 U.S.C. § 206(a)(1)(C).

Based solely on inflation, the original minimum wage of $0.25 per hour would equal about $4.73 today. The overall cost of living has increased more than that, though, and critics of the federal minimum wage argue that $7.25 per hour is not enough to support most individuals, let alone families.
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May 7, 2021

Federal COVID Relief Bill Provides Expanded Paid Sick Leave and Family Leave to New Jersey Workers

by Resnick Law Group, P.C.

The COVID-19 pandemic has had a devastating effect on New Jersey’s employment landscape for more than a year. Congress passed several bills in 2020 intended to help people impacted by the pandemic, both medically and economically. The Families First Coronavirus Response Act (FFCRA), which became law in March 2020, provided paid sick leave and paid and unpaid family leave for people who were either directly affected by the virus, or who were caring for one or more affected family members. These provisions expired at the end of 2020. The American Rescue Plan Act (ARPA) became law in March 2021, and includes extensions and expansions of both family leave and paid sick leave.

The FFCRA created a new federal system for paid sick leave, and expanded the provisions for leave under the Family and Medical Leave Act (FMLA). The law required most employers with fewer than five hundred employees to provide emergency paid sick leave (EPSL) to workers who could not come to work, in person or virtually, for reasons related to the COVID-19 pandemic, including
– Quarantine on the orders of a government official, or the recommendation of a doctor;
– Symptoms of COVID-19;
– Caring for a family or household members who is subject to a quarantine order or recommendation; or
– Caring for a child whose school was closed due to the pandemic.

EPSL covered an employee’s regular rate of pay, up to a maximum of either $511 per day or $5,110 total. Employees could take up to eighty hours of paid leave. Employers received a credit against the Social Security portion of their payroll taxes for paid leave provided to their employees.
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April 29, 2021

New Jersey Teacher Settles Lawsuit with School District Alleging Scapegoating for Censorship Controversy

by Resnick Law Group, P.C.

New Jersey is an “at will employment” state, meaning that employers can fire an employee for any reason, or no reason at all, provided that they do not violate the New Jersey Law Against Discrimination (NJLAD) or other applicable laws or regulations. Private employers are subject to laws like the NJLAD and any contractual relationships they have with their workers. Public employers, including many government entities at the city, county, and state level in New Jersey, may also be bound by constitutional protections for due process and civil rights. A recent settlement between a New Jersey public school district and a former teacher illustrates how public employers may have additional obligations to their employees. The former teacher alleged that the school district scapegoated her for a controversy over the alleged censorship of a student’s yearbook photo. She claimed violations of her free speech and due process rights.

Both the U.S. and New Jersey Constitutions protect certain civil rights against infringement by the government. This may include infringement of employees’ civil rights by government employers. The First Amendment to the U.S. Constitution protects the right to free speech. Section 6 of the New Jersey Constitution specifically states that “[e]very person may freely speak, write and publish his sentiments on all subjects.” The Fourteenth Amendment guarantees due process and equal protection at all levels of government.

These protections would not be worth much without some method of enforcement. The New Jersey Civil Rights Act (NJCRA) allows individuals to file suit against the government for civil rights violations by government agents or employees. See N.J. Rev. Stat. § 10:6-2. This law is similar to § 1983, the federal statute that allows lawsuits for deprivation of civil rights.
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April 23, 2021

How the NLRB’s Recent Determination Regarding the Firing of Employees Who Advocated for Better Working Conditions May Affect New Jersey Workers

by Resnick Law Group, P.C.

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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April 15, 2021

New Jersey Lawsuits Allege Disability Discrimination Based on Drug Test Results

by Resnick Law Group, P.C.

New Jersey employment laws bar discrimination based on disability. An employer cannot fire an employee or subject them to other adverse actions because of an injury, illness, or other condition that significantly affects their lives. State law uses a broad definition of “disability” that includes physical and mental conditions. Two lawsuits currently pending in New Jersey’s federal district court allege disability discrimination based on use of prescribed medication. One suit involves a plaintiff with a prescription for medical marijuana. The other involves an amphetamine-based medication used to treat attention deficit hyperactivity disorder (ADHD). The defendant in both cases is a major online retailer that operates multiple warehouses and distribution centers in New Jersey.

“Disability,” according to the New Jersey Law Against Discrimination (NJLAD), includes “any mental, psychological, or developmental disability…which prevents the typical exercise of any bodily or mental functions,” or which can be identified “by accepted clinical or laboratory diagnostic techniques.” N.J. Rev. Stat. § 10:5-12(q). The statute requires employers to make reasonable accommodations for employees’ disabilities. Failure to do so is an unlawful practice under the NJLAD.

New Jersey passed a law in 2009 authorizing the distribution and possession of small amounts of marijuana for medical purposes with a doctor’s prescription. As originally written, the law stated that it did not require employers “to accommodate the medical use of marijuana in any workplace.” It was not clear whether this meant the literal use of marijuana while at work, or if it allowed employers to enforce policies regarding marijuana use regardless of an employee’s medical needs. The New Jersey Supreme Court ruled in 2020 that a plaintiff could bring a disability discrimination claim under NJLAD based on lawful medical marijuana use. The New Jersey Legislature also amended the statute to remove the language about employers and accommodations.
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April 9, 2021

Bill Pending in New Jersey Legislature Would Restrict Use of Biometric Data by Employers, Others

by Resnick Law Group, P.C.

Employers in New Jersey use increasingly high-tech methods to monitor their employees throughout the work day. Some of these methods raise concerns about employee privacy, especially systems that collect biometric data. “Biometrics” refers to the automated use of physical characteristics to identify individuals. For example, many smartphones give users the options of unlocking their devices with fingerprint or facial recognition software. Some employers use this kind of technology to control access to worksites or track employees’ time. This means that each time an employee passes a checkpoint or enters the employer’s premises, the employer captures an image of their face, fingerprint, or other unique identifying feature. Employees have an interest in knowing how employers are using this information, and how securely they are storing it. Currently, no law in New Jersey regulates the collection, storage, and use of biometric data. A bill pending in the New Jersey Assembly would address this issue and provide a path forward for New Jersey employment lawyers and their clients.

Under New Jersey law, employers may not intrude into areas where employees have a reasonable expectation of privacy. Unreasonable searches of private areas in the workplace, such as an employee’s locker, may violate an employee’s legal rights. Surveillance of phone or computer use is allowed by law, as long as it is reasonably related to the employer’s business. Video monitoring of common areas is not unusual, particularly in retail or warehouse settings. Intrusive surveillance that serves no legitimate business purpose could be unlawful. In extreme cases, such as video monitoring of a restroom or changing area, it could even be criminal.

Biometric surveillance is, in one sense, an extension of video surveillance. Since it results in the collection of data that could be used to identify specific individuals, it is also analogous to the collection of Social Security numbers and other information best kept private. Few states currently have laws addressing the collection of biometric data. Illinois enacted the first such law, the Biometric Information Privacy Act (BIPA), in 2008. Other states have passed similar laws since then. BIPA remains the only law that allows private causes of action for violations.
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April 1, 2021

Some New Jersey Workers Likely Impacted by Withdrawal of U.S. Department of Labor’s New Rule That Defined “Independent Contractors” Under the FLSA

by Resnick Law Group, P.C.

New Jersey employment laws ensure that employers pay minimum wage to all non-exempt employees, as well as a greater rate of pay for overtime hours. These laws only apply to “employees.” Employee misclassification happens when an employer wrongly classifies an employee as an “independent contractor.” State law has a clear definition of “employee” for the purposes of wage and hour law, which sets strict limits on employers’ ability to designate someone as an independent contractor. At the federal level, the definition is not as clear. Beginning in late 2020, the U.S. Department of Labor (DOL) developed a rule defining “employee” and “independent contractor” for the Fair Labor Standards Act (FLSA). The final rule, published in January 2021, was far more favorable to employers than New Jersey’s rule. When the new presidential administration took over in late January, it postponed the effective dates of all new administrative rules. The DOL has since sought to withdraw the new rule.

The FLSA requires employers to pay their non-exempt employees a minimum wage of $7.25 per hour, and to pay them at one-and-a-half times their usual rate for work that exceeds forty hours in a week. See 29 U.S.C. §§ 206(a)(1), 207(a). Exemptions include people employed in professional or executive capacities, and various other specific jobs. Id. at § 213. The statute is specific about only applying to “employees,” but it does not provide particularly clear definitions of “employ” and related terms. It defines “employ” as “to suffer or permit to work,” and “employee” as “any individual employed by an employer,” with some exceptions. Id. at §§ 203(e)(1), (g).

New Jersey law states that employers should consider their workers to be employees unless they meet all three parts of the “ABC test,” named for the definition of “employee” found in N.J. Rev. Stat. §§ 43:21-19(i)(6)(A), (B), and (C):
A. The worker, not the employer, controls the time and manner of their work;
B. The worker’s services are either not part of the employer’s “usual course of business,” or they do their work away from the employer’s regular business premises; and
C. The worker has their own “independently established” business operation.
This definition tends to favor classification as an employee. The New Jersey Supreme Court adopted it for wage and hour claims in a 2015 decision. State regulators and the New Jersey Legislature have incorporated it further into state law.

March 19, 2021

New Jersey’s Recreational Cannabis Law Includes Employment Protections

by Resnick Law Group, P.C.

New Jersey Governor Phil Murphy signed a bill into law in February 2021 that creates a legal framework for the recreational use of cannabis by adults in the state. Voters paved the way for the new law when they approved Public Question 1 by a substantial margin on Election Day in 2020. The Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) establishes standards for licensing businesses to distribute and sell marijuana products for recreational use. It directs the New Jersey Cannabis Regulatory Commission (CRC) to work out the details through regulations. Medical marijuana has been legal in New Jersey since 2009, but the law was unclear about employee protections until the state legislature amended it in 2019. CREAMMA includes explicit protections against “adverse actions” by employers based on activity that is now legal. If you feel you’ve been treated unfairly by your employer over use of cannabis, please contact a New Jersey employment discrimination lawyer today.

The Compassionate Use Medical Marijuana Act (CUMMA) established a system for the production, distribution, sale, and possession of small amounts of marijuana for medical use under a doctor’s supervision. Section 14 of the law stated that nothing in the law “shall be construed to require…an employer to accommodate the medical use of marijuana in any workplace.” In early 2020, the New Jersey Supreme Court held that, despite this language, a person using medical marijuana in compliance with CUMMA could assert a claim for disability discrimination under the New Jersey Law Against Discrimination (NJLAD).

The New Jersey Legislature passed the Jake Honig Compassionate Use Medical Cannabis Act (CUMCA) in 2019, after the events that were the subject of the 2020 state supreme court ruling. CUMCA removed the language in § 14 about not requiring employers to accommodate medical cannabis use. It bars employers from discriminating against employees because they are registered medical marijuana users. It does not bar workplace drug testing, but states that employees who test positive for cannabis must have an opportunity to produce a prescription.

March 16, 2021

New Presidential Administration Makes Changes to NLRB Policies Affecting New Jersey Workers

by Resnick Law Group, P.C.

The National Labor Relations Board (NLRB) is charged with enforcing the federal statute that governs employees’ right to organize, engage in collective bargaining, and engage in other related activities. Its General Counsel (GC) investigates alleged violations of both employees’ and employers’ rights. The members of the Board itself adjudicate complaints filed by employees, employers, and labor unions. The recent change in presidential administrations brought some changes to positions at the NLRB, including a new acting GC. At the beginning of February 2021, the acting GC issued a memorandum, GC 21-02, rescinding several memoranda from the previous administration. At least one of the rescinded memos could impact New Jersey employee claims and affect similar cases throughout the country. GC 18-04 interpreted a 2017 decision by the Board regarding complaints about employer handbook policies.

Section 7 of the National Labor Relations Act (NLRA), codified at 29 U.S.C. § 157, protects employees’ “right to self-organization,” to form or join labor unions, to engage in collective bargaining with their employers, “and to engage in other concerted activities” directed at these rights. Under § 8(a) of the NLRA, id. at § 158(a), employers may not restrain employees from exercising their rights under the statute, nor may they discriminate or retaliate against employees who engage in protected activities or complain about alleged violations.

The 2017 decision by the NLRB mentioned earlier dealt with a “facially neutral rule” in an employee handbook that allegedly violated workers’ rights under § 7. The rule in question restricted the use of cameras on the employer’s property. This included cell phones with cameras. An administrative law judge (ALJ) ruled that the rule violated § 8(a)(1) of the NLRA, finding that “employees ‘would reasonably construe’ the rule to prohibit Section 7 activity.”