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Employment discrimination or harassment claims under the New Jersey Law Against Discrimination usually involve actions by specific employees, supervisors, managers, or executives. In order to make a successful New Jersey employment discrimination claim, a plaintiff must establish that the employer is legally responsible for the actions of that person or those people. This is known as “vicarious liability.” The New Jersey Appellate Division recently ruled in favor of a plaintiff in her hostile work environment lawsuit, reversing the trial court’s summary judgment for the defendant. The appellate court held that the plaintiff had raised a question as to whether her alleged harasser had acted within his authority as a supervisor when he told the plaintiff to “leave and don’t come back.”

Hostile work environment is a type of sexual harassment that occurs when one or more people engage in unwelcome sexual conduct to the point that a reasonable person would consider it to render the workplace hostile. An employer can be held vicariously liable for a hostile work environment perpetrated by any employee, even if they do not have authority over the plaintiff, as long as the employer knew or should have known about the harassment and failed to act.

The New Jersey Supreme Court issued a ruling in 2015 that defined a rule for determining whether vicarious liability should apply to an employer in sexual harassment and similar claims, when the alleged harasser was in a position of authority over the plaintiff. It based this rule on the Ellerth/Faragher analysis, named after two Supreme Court rulings from 1998, Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton. The Ellerth/Faragher analysis states that a defendant can avoid vicarious liability if it can establish three elements:
1. It “exercised reasonable care to prevent and correct promptly any sexually harassing behavior”;
2. The plaintiff “unreasonably failed to take advantage of” the remedies offered by the employer; and
3. The plaintiff was not subject to any “tangible employment action” by the alleged harasser.
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People looking for jobs in New Jersey have the protection of federal and state employment laws addressing issues like wages, overtime compensation, and workplaces that are free of discrimination and harassment. To protect job applicants’ privacy rights, New Jersey law limits how employers can conduct background checks on prospective hires, and on how they can use information obtained from an applicant’s credit or criminal history. The following is the conclusion of our two-part series about New Jersey laws that protect job applicants’ rights.

Use of Credit History in Hiring

At the federal level, the Fair Credit Reporting Act (FCRA) regulates consumer reporting agencies (CRAs), which are companies that compile information about consumers, and package that information in report form in exchange for a fee. The reports, known as consumer reports or credit reports, often include sensitive personal information that most people would rather remain private. The FCRA restricts the use of credit reports to a small number of situations, including employment.

New Jersey law largely mirrors the language of the FCRA. Under both laws, an employer needs a job applicant’s written consent in order to obtain a credit report. New Jersey goes a step further than the FCRA, however, by requiring employers to give job applicants a written disclosure stating that credit reports “commonly include[] information regarding the [applicant]’s character, general reputation, personal characteristics, and mode of living.” The employer must provide the applicant with a copy of the report upon request.
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The Resnick Law Group achieved a major victory for one of our clients earlier this month, when the New Jersey Supreme Court ruled that she did not have to show an “adverse employment action” in order to bring a claim under New Jersey disability discrimination law. The plaintiff alleged that her employer failed to provide a reasonable accommodation for her, and that this resulted in life altering injuries to her. The court also ruled that the claim was not barred by the state’s workers’ compensation law.

The New Jersey Law Against Discrimination (NJLAD) protects workers against discrimination on the basis of disability. It defines this term very broadly to include illnesses that are “demonstrable…by accepted clinical or laboratory diagnostic techniques.” The text of the NJLAD itself does not specifically require employers to make reasonable accommodations for employees with disabilities, but the New Jersey Administrative Code requires accommodations as long as they do not present an “undue hardship” for the employer. Failure to provide an accommodation is an “unlawful employment practice” under the NJLAD.

One question before the New Jersey Supreme Court was whether a plaintiff has to show an adverse employment action in order to make a claim for failure to accommodate a disability. An “adverse employment action” has typically been defined as a termination, suspension, or demotion. For the first time however, the high court decided that employees that suffer from a disability and do not necessarily fall into the above categories are also entitled to relief, and determined that an “adverse employment action” is not required to be shown in a reasonable accommodation case.
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New Jersey’s employment laws protect workers from a wide range of concerns. They guarantee payment of a minimum wage and compensation for overtime work. They prohibit discrimination on the basis of factors like race, religion, gender, disability, military service, sexual orientation, gender identity, and more. They require reasonable accommodations for pregnant employees and employees who are nursing newborns. These protections apply to job applicants as well as employees, with the goal of ensuring a fair hiring process with opportunities for as many people as possible. Enforcing these rights may require the assistance of an employment lawyer with experience in New Jersey’s legal system. The following is the first installment in an overview of New Jersey laws protecting job seekers, to help you understand your rights.

Employment Discrimination

Employers may not subject employees or job applicants to discriminatory treatment based solely or primarily on certain factors or characteristics. This includes refusing to hire someone because they are part of a protected group. For a job applicant turned down for a job, it can be difficult to prove what motivated an employer’s decision. An employment discrimination lawyer can help build a case under state law.

Protected Categories

The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination on the basis of the following factors:
– Race;
– Religion;
– Gender;
– Age;
– Disability;
– Pregnancy or breastfeeding;
– Marital, civil union, or domestic partnership status;
– Sexual orientation;
– Gender identity and gender expression;
– Military service obligations;
– Nationality or national origin; and
– Genetic information, including refusal to take a genetic test.
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As the COVID-19 pandemic shows signs of winding down, and New Jersey lifts many of the restrictions that have been in place for over a year, employers across the state report that they cannot find enough workers for their businesses. Some employers, rather predictably, blame expanded unemployment benefits. That might be one possible explanation, but it alone does not explain the reported worker shortage. Many of the industries reporting problems finding enough employees, to be blunt, do not have the best track records when it comes to fair wages, workplace safety, and other things that workers should be able to expect from their employers. Federal and New Jersey employment laws guarantee various protections for workers, and the fact that people are not hurrying to return to certain workplaces might serve as a reminder that maintaining these legal protections is an ongoing struggle.

Workers’ Rights Under Federal and New Jersey Law

Statutes at the state and federal level guarantee many New Jersey workers a minimum wage. They also protect workers’ right to a workplace free of discrimination, harassment, and unreasonable danger.

Minimum Wage

The Fair Labor Standards Act (FLSA) has set the federal minimum wage at $7.25 per hour since 2010. 29 U.S.C. § 206(a)(1)(C). For tipped employees, which include many restaurant workers, employers must pay a base wage of $2.13 per hour. Id. at § 203(m)(2), 29 C.F.R. § 531.59.
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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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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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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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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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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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