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Protecting the rights of employees and job applicants in New Jersey and around the country requires a complex system of courts and government agencies. Both federal and New Jersey employment laws rely on agencies to interpret, implement, and enforce those laws. Many employment disputes must go through an administrative process before a person can file a lawsuit in court, such as the process of filing a discrimination charge with the Equal Employment Opportunity Commission (EEOC). Some agencies have administrative law judges (ALJs) who can rule on disputes. This helps keep court dockets from becoming even more overloaded. If a case does go before a federal court, a 1984 U.S. Supreme Court decision states that judges should defer to agencies’ interpretations of the law in certain situations. Two cases currently pending before the Supreme Court could upend this system.

Administrative Law Judges

Many employment law disputes go before ALJs, who have the authority to adjudicate certain matters. ALJs with the U.S. Department of Labor handle various employment-related claims. The National Labor Relations Board (NLRB) has ALJs who adjudicate labor complaints.

ALJs are not part of the federal court system. Article III of the U.S. Constitution addresses the Judicial Branch of the federal government. ALJs are part of the system of administrative agencies under the Executive Branch. This is part of the dispute now before the Supreme Court in Securities and Exchange Commission v. Jarkesy.
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Employees who suspect that their employers are engaging in unlawful acts might hesitate to report what they know for fear of losing their jobs. Federal and New Jersey employment laws address those concerns by prohibiting employers from retaliating against employees, commonly known as whistleblowers, who voice their concerns about allegedly unlawful practices. The federal False Claims Act (FCA) gives whistleblowers an added incentive to go public in cases involving alleged fraud against the federal government. An employee can file a qui tam lawsuit under the FCA on behalf of the United States. The employee is entitled to a percentage of the settlement or award in the case. A lawsuit currently pending in a New Jersey federal court involves a hospital administrator who alleges that his now-former employer defrauded a COVID-19 relief program.

The FCA establishes a civil penalty of $5,000 to $10,000 for various types of false claims and other fraudulent activities targeting the federal government. The government may file suit under the FCA. An individual, known as the “relator,” may file suit on the government’s behalf. Relators are often employees with knowledge of alleged wrongdoing by their employers. The government can intervene and take over the case from the relator. If the government declines to intervene, the relator may continue pursuing the lawsuit on their own.

The relator is entitled to a percentage of any recovery in the lawsuit, whether it comes from a settlement or an award after a trial. If the federal government intervenes and takes over the case, the relator may receive fifteen to twenty-five percent. They are entitled to twenty-five to thirty percent if they pursue the case themselves.
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To assert a claim for violations of New Jersey employment laws, a person must be able to demonstrate that an employer-employee relationship exists. State and federal employment statutes tend to provide vague definitions of terms like “employee” and “employer.” Courts and regulatory agencies provide more detailed definitions. For example, the New Jersey Supreme Court has adopted a test to distinguish between employees with the full protection of state and federal employment law and independent contractors with contractual rights and remedies. In other situations, multiple entities may exercise control over an employee’s work, making it difficult to determine who is their “employer” under the law. The National Labor Relations Board (NLRB) recently issued a new rule for determining when an employee has “joint employers.” The rule can help employees hold employers liable for violations of federal labor law.

The National Labor Relations Act (NLRA) protects employees’ rights to “self-organization” and “other concerted activities” intended to protect employees or promote their welfare. Employers may not threaten or interfere with employees who are engaging in protected activities. The NLRB investigates claims of unlawful activity by employers.

“Joint employer” status can be an issue in situations where more than one company or other entity has some degree of control over an employee’s work. An employee might draw a paycheck from a staffing agency, for example, but take orders from a business that contracts with the agency. Someone who works for a business that operates a franchise might be subject to requirements from their direct employer, known as the franchisee, and the franchisor. The joint employer rule seeks to determine how many entities are acting as an “employer.”
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New Jersey employment laws strive to ensure that employees receive a minimum wage, additional payment for overtime work, and other rights. For a worker to recover damages for unlawful actions by their employer, they must demonstrate that an employment relationship exists between them and their employer. Laws that address matters like wages and overtime pay apply to employees, but not independent contractors who have a less formal legal relationship with their employers. Employers sometimes engage in “misclassification,” meaning that they wrongfully classify employees as independent contractors to avoid obligations under state and federal employment laws. New Jersey employees can sue employers for misclassification. A law passed by the state legislature in 2021 allows the state to sue employers who allegedly misclassify employees. In December 2023, the New Jersey Attorney General (AG) filed the first lawsuit under this law seeking back pay and other remedies for the defendant’s employees.

Independent contractors do not enjoy the protection of many employment laws. Their recourse is often limited to the terms of their contracts. Employees, on the other hand, have broad protections under New Jersey law. Defining who is an “employee” and who is not can be tricky. The New Jersey Wage and Hour Law, for example, defines the term as “any individual employed by an employer.” Most other state and federal statutes are not much more helpful. It has largely fallen to the courts to develop ways to distinguish employees from independent contractors.

The New Jersey Supreme Court issued a ruling in 2015 that adopts the “ABC test” in employee misclassification cases. The test gets its name from a section of the state’s unemployment law that contains a three-part definition of “employee” with subsections labeled A through C. A New Jersey court will presume that an individual is or was an employee unless the employer establishes all three of the following:
A. The employer did not have the right to exercise control over how the worker did their job, nor did they exercise such control.
B. The worker’s services were either performed away from the employer’s usual place(s) of business, or they were outside of the employer’s usual type of business.
C. The worker has their own profession that does not depend solely on the employer, meaning that they may continue to work for others if their relationship with the employer ends.
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Employee paychecks are subject to some quite complicated regulations, particularly when it comes to what employers may, may not, and must withhold from employee pay. Perhaps the most well-known form of withholding is for Social Security and Medicare, commonly known as payroll taxes, and federal income tax. States that maintain their own income tax may require employers to withhold that as well. New Jersey is among those states. When employment relationships cross state lines, withholding requirements can get even more confusing. New Jersey employment laws give workers some remedies for unlawful paycheck deductions, but this does not necessarily cover errors involving tax withholding. A new law passed by the state legislature addresses New Jersey income tax withholding for out-of-state remote workers based on a rule known as the “convenience of the employer.”

New Jersey employers may withhold money from employee paychecks when required to do so by state or federal law, such as for federal income tax. They may withhold funds from paychecks for any other purpose only when the employee has authorized it in writing. Authorization can come from an individual employee or a collective bargaining agreement with an authorized representative.

Unauthorized deductions from employee paychecks can result in penalties that include fines and jail time. Employees may also bring a civil lawsuit to recover the amounts unlawfully withheld, plus three times that amount as liquidated damages, court costs, and attorney’s fees. This provision of New Jersey law does not apply to tax withholding errors made by an employer. An employee whose employer fails to withhold the correct amount of income tax will be liable to pay the correct amount. It might, however, be possible to raise the employer’s error as a defense to the assessment of late payment penalties.
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Employment discrimination can take many forms, some of which are practically invisible to anyone who does not have access to an employer’s books. Pay disparities based on factors like sex or race are still common in many workplaces. Laws like the federal Equal Pay Act (EPA) attempt to address gender-based wage gaps, and antidiscrimination laws can help take on pay disparities based on other factors. Some employers maintain policies that make addressing wage gaps difficult, such as by leaving pay information out of job listings. Advocates for fair pay need this information to identify where wage gaps are occurring. Pay transparency laws attempt to rectify this issue by requiring disclosure of wage rates. New Jersey employment law currently does not include pay transparency provisions, but a bill pending in the state legislature could change that.

Many wage gaps are not intentional, meaning they did not result from conscious decisions by current managers to pay certain employees less than other employees who work the same or similar jobs. Instead, many pay disparities reflect a long history of discrimination that goes back to a time when employers did make conscious decisions to discriminate. Women, for example, often received lower pay than men based on gender stereotypes. This created a longstanding practice of paying women less than men for the same work that persists to this day. Race-based wage gaps are also very common, resulting in pay disparities that affect women of color more than most other groups.

The EPA and the New Jersey Law Against Discrimination (NJLAD) both prohibit pay discrimination based on factors like sex. The NJLAD goes further and covers every protected category, including race, color, and national origin. It also protects employees from retaliation for asking other employees how much they make or disclosing their pay rate to others.
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Employers are increasingly relying on tools that use artificial intelligence (AI) for various employment-related purposes. AI tools can be useful for tasks that require sifting through large amounts of information, such as the hiring process. New Jersey employment laws set limits on employers when they are making hiring decisions. Employers may not, for example, screen job candidates based on protected categories like disability, genetic history, or pregnancy. Employers are liable for these types of hiring decisions even when they outsource them to someone else. This includes AI tools, but the law in New Jersey remains unclear on how laws against employment discrimination apply to virtual decision-makers. The White House recently issued an executive order (EO) providing directives to various executive agencies regarding AI. These include instructions to agencies that enforce federal employment laws to review current AI practices with the goal of “ensur[ing] that AI deployed in the workplace advances employees’ well-being.”

The New Jersey Law Against Discrimination (NJLAD) prohibits employers from taking various adverse actions against job applicants and employees solely based on factors like race, religion, sex, sexual orientation, disability, and others. This includes refusing to consider someone for employment because of a protected category. Many of the categories identified by the NJLAD have historically served as the basis for countless adverse hiring decisions.

One concern about the use of AI in screening job applicants and assisting in hiring decisions is that human biases, whether consciously held or not, could become part of the software’s algorithms. Neither federal nor New Jersey employment laws currently address this concern. New York City enacted a bill several years ago that requires periodic “bias audits” for AI-based tools that employers use in the hiring process. This process involves reviewing AI tools to see if they have any sort of disparate impact on members of protected categories. Lawmakers introduced a similar bill in the New Jersey Assembly in December 2022, but it has not advanced beyond its initial committee assignment.
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Employees’ ability to communicate with one another about working conditions and other workplace concerns is essential to their ability to assert their legal rights. Both federal and New Jersey employment laws prohibit employers from interfering with employee efforts to organize and communicate about important work-related matters. In late 2022, a major social media company fired an employee after he posted a message to the company’s platform that related to a change in management that was ongoing at the time. In October 2023, the National Labor Relations Board (NLRB) filed a complaint alleging that the company broke the law by firing the employee. The case could impact New Jersey employee rights, depending on how far it goes in the administrative law system. At a minimum, the case offers a useful look at how social media usage affects workers’ rights.

The National Labor Relations Act (NLRA) has protected workers’ right to organize themselves for collective bargaining purposes for almost ninety years. Section 7 of the statute goes beyond collective bargaining to protect a much wider range of “concerted activities for the purpose of…mutual aid or protection.” Under § 8(a)(1) of the NLRA, employers may not “interfere with, restrain, or coerce employees” who are exercising their § 7 rights.

Workers who believe their employer has violated their rights under the statute can file a charge with the NLRB. The agency will investigate the charge and decide on its merits. If it finds that a charge has merit, it will attempt to get the parties to agree on a settlement. The NLRB’s regional directors have the authority to file complaints when parties cannot reach settlements.
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New Jersey employment law protects workers from discrimination on the basis of numerous factors, such as race, religion, sex, disability, and national origin, to name only a few. In some cases, an employer’s unlawful actions clearly violate someone’s legal rights based on one of the protected categories identified in state and federal law. The categories can blur together in other cases, though. This can create confusion. It can also lead people to overlook claims that they might have under state and federal antidiscrimination laws. Some types of bias and discrimination can span multiple categories, including race, color, religion, and national origin. New Jersey employees should be aware of their rights when it comes to these types of issues.

Both the New Jersey Law Against Discrimination (NJLAD) and Title VII of the Civil Right Act of 1964 specifically identify race, color, religion, and national origin as protected categories. This means that employers may not take adverse actions against employees or job applicants on the basis of any of these factors. This includes refusing to hire someone, demoting them, firing them, or denying them opportunities to advance their careers. Employers may have to make reasonable accommodations for employees’ religion observances, as long as doing so does not create an undue burden.

Title VII does not provide definitions for the terms “race,” “color,” or “national origin.” It defines “religion” as including “​​all aspects of religious observance and practice.” The NJLAD does not define “religion,” “color,” or “national origin.” Its definition of race includes the common understanding of that term along with “traits historically associated with race,” such as hairstyles and types of hair.
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The term “quiet quitting” gained traction on social media in 2022, and debates over whether or not it is a real phenomenon have continued throughout 2023. It generally involves employees who are unwilling to do more than what their job description specifically requires. A related concept, “quiet firing,” has also emerged. It involves an employer that, rather than directly firing an employee, takes adverse actions that drive the employee to the point of resigning. While “quiet firing” might be a new term, it is not a new concept in New Jersey employment law. Constructive discharge, in which an employer makes working conditions so intolerable that an employee feels they have no choice but to quit, may violate laws against wrongful termination, discrimination, harassment, and retaliation.

What Is “Quiet Firing”?

The Harvard Business Review (HBR) defines “quiet firing” as the practice of “intentionally creat[ing] a hostile work environment that encourages people to leave voluntarily.” This arguably saves the employer money on severance and unemployment benefits.

This is hardly new to the workplace. Individual managers and supervisors have long used these kinds of tactics to drive out employees for various reasons. The HBR, however, suggests that some employers are now being more systematic about it. It notes studies from the past few years that show growing numbers of employees who leave their jobs for reasons like “feeling disrespected.”
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