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Criminal background checks are increasingly common in the hiring process. They often present a major stumbling block for people who are trying to put their lives together after a criminal conviction. Many employers simply refuse to hire anyone with a felony record, regardless of whether the offense has any relation to the job a person is seeking. Employment laws in New Jersey and other states are trying to rectify the situation. The New Jersey Legislature passed the Opportunity to Compete Act (OTCA) in 2014. Federal law does not include specific protections against discrimination based on criminal history, but several provisions of federal law can indirectly affect how employers conduct background checks on job applicants.

When it passed the OTCA, the state legislature recognized the importance of “[r]emoving obstacles to employment for people with criminal records.” It found that as many as 65 million people nationwide faced difficulty finding jobs because of their criminal records, and that up to ninety percent of employers use criminal background checks to some extent during the hiring process. Since having a job “significantly reduces the risk of recidivism” for people with criminal histories, the state legislature concluded that it had to act. The OTCA does not go as far as many similar laws, but it is a step in the right direction.

The OTCA is part of a group of laws passed by state and local governments around the country known as “Ban the Box” laws. The OTCA prohibits employers from asking New Jersey job applicants about criminal history at the beginning of the hiring process. The “box” refers to the “yes/no” checkbox found on many job application forms asking whether someone has ever been convicted of a criminal offense. Checking the box, which indicates that an applicant has one or more convictions, has often resulted in the application going directly into employers’ “rejected” piles.
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Courts in New Jersey and all over the country encourage parties involved in disputes to use alternative dispute resolution (ADR) procedures in order to keep dockets from getting excessively backlogged and free up court resources. Mandatory arbitration clauses are increasingly common in employment contracts. Many employees, as well as their legal advocates, dispute whether these clauses are truly voluntary since employees are often not in a position to negotiate those terms. They also maintain that arbitration tends to favor employers for various reasons. A new law, signed by the president in March 2022, amends the Federal Arbitration Act (FAA) to prohibit the enforcement of mandatory arbitration clauses when employees claim sexual harassment.

Arbitration is a form of ADR in which the parties to a lawsuit present their cases to a neutral third party. That person, known as an arbitrator, presides over a proceeding that resembles a trial in many ways. Data generally support the perception that arbitration favors employers. One possible reason for this is because, while an employee might only encounter an arbitrator once, their employer might have seen that arbitrator many times in other employment disputes. An arbitrator may feel pressure not to alienate a source of consistent business.

If all of the parties to a dispute agreed in advance that the arbitrator’s decision would be binding, the FAA protects the decision from judicial review. A party to the arbitration may petition a court to enforce the award. If the other party tries to challenge the validity of the award, however, the court may not vacate or modify it without evidence of fraud, duress, or misconduct by the arbitrator. This type of mandatory arbitration effectively shuts employees out of the court system.
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New Jersey’s wage and hour laws protect workers’ rights to earn a minimum wage and receive overtime compensation. While these are perhaps the most well-known rights under state law, New Jersey protects other rights regarding workers’ compensation. New Jersey does not require employers to provide most workers with breaks for meals or rest, except for paid meal breaks for employees under the age of eighteen. Other workers could be entitled to pay during their meal breaks if their employer requires them to remain at work during that time.

When “Hours Worked” May Include Meal Breaks

A state regulation requires employers to include “[a]ll the time the employee is required to be at his or her place of work or on duty” in the computation of how many hours that employee has worked. If employees are free to take a meal break anywhere they want, that time is likely to be unpaid. An employer that requires employees to remain at their desks or workstations during meal breaks, however, might be required to pay them for that time.

New Jersey courts have noted that the regulation does not define “place of work.” In an unpublished decision from June 2020, a New Jersey federal court considered whether mandatory security screenings at the end of the workday should count as paid time under New Jersey law. The court applied a two-part test to determine whether a location counts as a “place of work”: (1) the employer controls or mandates activity in that area, and (2) the activity mainly benefits the employer. It ruled that the security screenings satisfied the test. In another ruling in the same case, issued in 2021, the court ruled that mandatory COVID tests administered at the beginning of the workday might also satisfy the “place of work” test.

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The National Labor Relations Act (NLRA) protects employees’ right to organize for the purpose of collective bargaining with their employers. They may do this by forming their own union, or by joining an existing union. Employers may not interfere with employees’ organizing activities. The National Labor Relations Board (NLRB) is responsible for enforcing the law. One part of the agency investigates complaints from workers about alleged violations. Another adjudicates those complaints. Region 22 of the NLRB, based in Newark, New Jersey, filed a complaint against a hospital in late 2021 for alleged NLRA violations. The NLRB’s description of the complaint outlines several examples of conduct prohibited by the statute. If efforts to organize at your workplace for the purposes of collective bargaining are being interfered with, reach out to a New Jersey employment attorney to learn more about your rights.

Section 7 of the NLRA states that employees may engage in activities related to organizing and collective bargaining, as well as “concerted activities for the purpose of…mutual aid or protection”. Employees also have the right to refrain from these activities. Section 8(a) of the statute prohibits various acts by employers, including:
– “[I]nterfer[ing] with…or coerc[ing] employees” with regard to their rights under § 7;
– Interfering with the creation or operation of a labor union;
– Attempting to discourage or encourage union membership among employees, with some exceptions;
– Firing an employee or retaliating against them in other ways for filing a complaint or cooperating with an NLRB proceeding; or
– Refusing to engage in collective bargaining with the employees’ authorized representative.

The NLRB may conduct a hearing to adjudicate a complaint alleging violations of § 8. If it finds that an employer has engaged in unlawful activity, it can award damages to an employee such as back pay. It can also order the employer to reinstate the employee and expunge their records of any unlawful disciplinary actions.
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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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Federal and state laws in New Jersey protect workers from discrimination on the basis of age, with some important limitations. The federal Age Discrimination in Employment Act (ADEA) sets a minimum age for workers, as well as a minimum number of employees before the statute covers an employer. Until recently, the New Jersey Law Against Discrimination (NJLAD) set a maximum age for protection from certain discriminatory acts based on age. A bill passed in late 2021 amends the NJLAD and other provisions of state law to expand the scope of age discrimination protection. It removed the maximum age and added new a new cause of action for employees. If you feel you have been discriminated against on the basis of your age, it would be worth your while to consult with a New Jersey employment discrimination lawyer at your earliest convenience.

Prior to late 2021, both the ADEA and the NJLAD set age limits for their provisions regarding age discrimination. The ADEA prohibits discrimination on the basis of age against people who are at least forty years old. A thirty-year-old individual fired because of their age, whether the employer considered them too young or too old, would therefore not be able to assert a cause of action. The statute also only applies to employers with twenty or more employees, so a fifty-year-old employee of a business with ten employees would also not have a claim under the ADEA.

The NJLAD, before its recent amendment, prohibited discrimination on the basis of age without regard to the total number of employees. It set no minimum age, so the hypothetical thirty-year-old worker would be able to make a claim. It set a maximum age, however, of seventy years. Specifically, it stated that the prohibition on age discrimination did not prevent employers “from refusing to accept for employment or to promote” a person over the age of seventy. This provided employers with a safe harbor for certain forms of age discrimination against older workers.
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Unlawful sex discrimination takes many forms in New Jersey workplaces. Overt discrimination, such as when an employer directly states an intention not to hire individuals of one gender, might not be as common as it once was, if only because it is less socially acceptable in the 21st century. It persists, though, in both blatant and subtle forms. Sex discrimination can also occur when a policy or practice disproportionately affects people of one gender, even if the employer has no intent to discriminate. The Harvard Business Review (HBR) recently published a study that examines these two forms of sex discrimination, calling them “conscious exclusion” and “unconscious bias.” The study offers some useful observations for New Jersey workers.

Disparate Treatment vs. Disparate Impact Discrimination

Title VII of the Civil Rights Act of 1964, as interpreted by the courts and the Equal Employment Opportunity Commission (EEOC), bars employers from engaging in disparate treatment based on a protected category. It also bars them from maintaining policies or practices that have a disparate impact on employees in a protected category. The New Jersey Law Against Discrimination has similar provisions.

“Disparate treatment” consists of overt acts of discrimination and other acts or omissions that directly affect someone based on their sex or another protected category. Examples include refusing to hire someone because of gender, promoting employees of one gender over employees of another without regard to qualifications or merit, and the various forms of sexual harassment.

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