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In New Jersey, employment laws prohibit workplace discrimination on the basis of factors like sex, race, religion, disability, age, sexual orientation, and gender identity, to name but a few. This state was ahead of many other states in adding the latter two categories to its anti-discrimination statute. At the federal level, the Equal Employment Opportunity Commission (EEOC) determined some time ago that discrimination based on sex includes sexual orientation and gender identity discrimination. This conclusion, however, did not have the force of law. Federal anti-discrimination law did not include these categories until the U.S. Supreme Court reached essentially the same conclusion as the EEOC in 2020. Earlier this year, the EEOC published an article tracing the history of LGBTQI+ rights in the workplace and discussing best practices for employers under federal law.

According to the EEOC, only twenty-two states and the District of Columbia have employment laws that specifically prohibit discrimination based on sexual orientation or gender identity. New Jersey is among them. Significant improvements in LGBTQI+ rights probably began in 1973, when the American Psychiatric Association (APA) removed “homosexuality” from its list of psychiatric disorders. Two years later, Pennsylvania enacted the first state law against sexual orientation discrimination in employment. New Jersey followed with an amendment to the New Jersey Law Against Discrimination (NJLAD) in 1991.

A 2006 amendment to the NJLAD added “gender identity or expression” to the list of protected categories. New Jersey was actually ahead of the APA in this case. The organization did not remove “gender identity disorder” from its manual until 2012, replacing it with the diagnosis of “gender dysphoria.” Both the New Jersey Legislature and the APA remained ahead of the federal government on these issues.
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Numerous government agencies investigate alleged violations of employees’ workplace rights. On occasion, they pursue enforcement actions on workers’ behalf. State agencies handle claims under New Jersey employment law, while federal agencies address alleged violations of statutes like Title VII of the Civil Rights Act of 1964 or the National Labor Relations Act (NLRA). Agencies may collaborate with one another in order to further their own missions and provide better service to the public. Two federal agencies announced a new collaboration in March 2023. The National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CFPB) will share information and resources in order to address several issues of concern. These include employment practices that have adverse impacts on employees’ privacy, data security, and financial well-being.

In its press release announcing the new collaboration, the NLRB states that despite “hav[ing] two distinct missions,” both agencies “share an interest in protecting American workers.” The NLRB is responsible for investigating alleged violations of workers’ labor rights under the NLRA, such as interference by an employer with efforts to self-organize or join a union for collective bargaining purposes. The NLRB’s General Counsel may file administrative actions against employers seeking compensation for workers and other types of relief.

While the NLRB came into existence nearly nine decades ago in 1935, the CFPB came into existence just over a decade ago in 2011. Congress established both agencies in the wake of major financial crises: the Great Depression and the 2007-08 financial crisis, respectively. The CFPB promulgates and enforces regulations affecting financial institutions and other businesses that may impact consumers’ financial interests. It may initiate administrative proceedings or file civil lawsuits in federal court. Enforcement actions by the CFPB might involve deceptive or abusive practices by banks, mortgage lenders, or payday loan companies. The agency has also investigated employment practices that “may leave employees indebted to their employers.”
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New Jersey employment laws at both the state and federal levels protect a wide range of workers’ rights. When federal and state laws seem to conflict with one another, federal law often supersedes state law, although, this is not always the case. The U.S. Supreme Court recently ruled on a preemption question related to labor rights. A group of workers and their union argued that the National Labor Relations Act (NLRA), which guarantees workers’ right to self-organization for collective bargaining purposes, preempted a property damage claim that the employer brought against the union. Unfortunately, the court ruled in the employer’s favor in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174, meaning that the court set a limit on the protection that the NLRA offers.

The NLRA protects the rights of workers to organize themselves into unions or join existing unions, and to engage in activities related to organizing, collective bargaining, and “other mutual aid or protection.” Workers also have the right to refrain from union-related activities. The statute prohibits both employers and unions from interfering with employees’ rights or coercing them. Once employees have formed or chosen a union to represent them, their employer must negotiate with that union in good faith on employment issues.

Because the NLRA is a federal statute, its provisions might preempt some state law claims. The doctrine of federal preemption is based on the Supremacy Clause of the U.S. Constitution, which states that federal law is “the supreme Law of the Land,” regardless of whether state laws say something different.
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Artificial intelligence (AI) has received a large amount of media coverage recently, largely due to applications that use AI to create visual or written works. Businesses have been using AI tools for a variety of purposes for some time, including the hiring process. Since AI is a relatively new technology, New Jersey employment laws have not caught up to many of its latest functions. The Equal Employment Opportunity Commission (EEOC) has taken notice of numerous risks posed by AI, including implicit bias in hiring. Last year, it issued guidance regarding the use of AI as a decision-making tool. It joined with several other federal agencies in April 2023 to issue a joint statement about potential legal liabilities from relying on AI. A bill pending in the New Jersey Legislature would regulate AI tools that could contribute to employment discrimination. A similar law is set to take effect in New York City in July.

Multiple state and federal statutes prohibit discrimination in hiring, firing, and other features of employment based on certain factors. The New Jersey Law Against Discrimination (NJLAD) specifically protects workers against discrimination on the basis of race, religion, sex, sexual orientation, gender identity, disability, age, genetic information, and other protected categories. Federal laws like Title VII of the Civil Rights Act of 1964 and the Americans With Disabilities Act (ADA) of 1990 also deal with workplace discrimination.

Discrimination does not have to be overt or intentional to violate the law. The U.S. Supreme Court has held that employment policies or practices are unlawful if they have a discriminatory impact. Much of the concern over the use of AI in hiring decisions stems from the fact that it might use data from past hiring practices to guide decisions in the present. This can lead to disparate impact discrimination, even if no one intended to discriminate.
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Federal and New Jersey employment laws require employers to pay minimum wage and overtime compensation to workers, subject to numerous exemptions. This includes employees who work in an “executive” capacity. While the federal Fair Labor Standards Act (FLSA) does not define this term, regulations provide a working definition that includes a baseline weekly rate of pay. The U.S. Supreme Court recently ruled on a dispute between an employer and an employee who earned significantly more than this amount. The parties disagreed over whether the exemption for executives applied to him. The court ruled in the employee’s favor in Helix Energy Solutions Group, Inc. v. Hewitt, finding that he is entitled to overtime compensation.

Section 7 of the FLSA requires employers to pay non-exempt employees one-and-a-half times their regular wage for hours worked over forty in a week. Section 13(a)(1), however, exempts employees who work “in a bona fide executive…capacity.” Regulations issued by the Wage and Hour Division (WHD) of the U.S. Department of Labor provide a four-part definition of an “employee employed in a bona fide executive capacity”:
1. Weekly pay of at least $684 per week on a “salary basis”;
2. Management as a “primary duty”;
3. Authority to “direct[] the work of two or more other employees”; and
4. Authority or influence over decisions regarding hiring and firing.

The regulations define “salary basis,” in essence, as payment of a predetermined amount no more frequently than once a week. At the time of the events at issue in Helix Energy, the minimum weekly pay amount was $455. The WHD amended the regulation in 2019 to raise it to $684.
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The National Labor Relations Act (NLRA) protects a wide range of workplace rights. New Jersey employment laws also address labor organizing, but the NLRA offers broad protections nationwide. Decisions from federal courts and the National Labor Relations Board (NLRB) have clarified how workers may exercise their rights to organize themselves and engage in collective bargaining with their employers, as well as what employers may and may not do. In May 2023, the NLRB issued a ruling that made rather sweeping changes to the manner in which employers may discipline employees who are engaged in protected activities. The decision overturns a 2020 NLRB decision which also made sweeping changes. In that sense, the May 2023 decision reinstates rules and standards that had been in place for decades. The end result is greater protection for workers engaged in labor organizing.

Section 7 of the NLRA provides a brief but expansive list of rights enjoyed by workers in New Jersey and throughout the country. The list of prohibited acts by employers found in § 8(a) of the statute is similarly short on details. Section 8(a)(1), for example, merely states that employers may not “interfere with, restrain, or coerce employees” with regard to the rights protected by § 7. Decades of decisions from the NLRB have provided practical details about how the NLRA protects workers.

The May 1, 2023 decision involves an employee who was discharged by their employer for alleged “abusive conduct.” The employee claimed that the discharge violated the NLRA since they were engaged in activities protected by § 7 at the time. The NLRB ruled in favor of the employee in May 2020. It held at the time that the employer violated §§ 8(a)(1) and (3). The employer appealed to a Circuit Court of Appeals. While the case was pending in that court, the NLRB issued a ruling in an unrelated case in July 2020 that made significant changes.
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The United States has been subject to multiple declared States of Emergency (SOEs) and Public Health Emergencies (PHE) since March 2020. The COVID-19 pandemic was just beginning at that point, and it continued to be a major concern well into 2021 and 2022. As of May 2023, the federal government and the State of New Jersey have ended some or all of their emergency declarations. The New Jersey governor officially ended the state’s PHE more than a year ago, in March 2022, while the state’s SOE remains in place. Most recently, the federal PHE ended on May 11, 2023. The state and federal emergencies have had a major impact on how New Jersey employment laws protect workers. The end of those declarations could also impact New Jersey workers.

What Was the Public Health Emergency?

The federal government issued emergency declarations in early 2020. The New Jersey governor issued Executive Order (EO) 103, which declared both a SOE and a PHE, on March 9, 2020.

Emergency declarations give various extra powers, mostly related to healthcare, to local, state, and federal governments. This often includes mandates affecting employers. EO 292, issued in March 2022, ended the New Jersey PHE but left the SOE in place. The national SOE ended on April 10, 2023, followed by the PHE on May 11.

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New Jersey employment laws at both the state and federal levels protect the rights of employees to take time off from work for certain reasons. These include medical issues affecting themselves or family members. Employers must allow workers to return to their jobs, or a substantially similar job with the same pay and benefits, at the end of their authorized leave. New Jersey provides paid leave for personal or family medical issues. The federal Family and Medical Leave Act (FMLA) provides up to twelve weeks of unpaid leave for similar reasons. Employees must work for a covered employer and meet eligibility requirements in order to take protected FMLA leave. The U.S. Department of Labor (DOL) recently issued an updated poster that covered employers must display in the workplace. The poster outlines employees’ rights and employers’ obligations under the statute.

Family leave is available to New Jersey workers through state law as a form of insurance. Covered employers fund the system through payroll taxes. To be eligible, a worker must have worked the minimum number of hours necessary to pay into the program. Eligible workers in New Jersey may be able to take up to:
– 26 weeks of medical leave for non-work-related injuries or illnesses;
– 12 weeks of family leave to care for a family member;
– 12 weeks of family leave for a new parent to bond with a newborn infant or newly adopted or fostered child within one year of the child’s arrival; or
– 12 weeks of family leave for a new mother to bond with her infant, as well as 26 weeks of temporary disability leave before and after the birth.
The amount of pay workers may receive while on leave is equal to 85% of their average weekly pay or $1,025 per week, whichever amount is smaller. Unpaid leave with job protection is also available under state law.

The benefits offered by the FMLA are simpler than those provided by New Jersey law. Eligible employees may take up to twelve weeks of unpaid leave for:
– A new child, whether by birth, adoption, or foster placement;
– A serious illness or injury that prevents an individual from working;
– A close family member’s serious illness or injury; or
– Issues related to the military deployment of a close family member.
The eligibility rules for FMLA leave, on the other hand, are quite complicated. An employee must work for a covered employer, and they must meet minimum requirements for the number of hours worked.
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People who believe that their employers have engaged in illegal or unethical behavior should be able to come forward without fear of losing their jobs or facing other forms of retaliation. New Jersey employment law offers broad protections for whistleblowers who report alleged wrongdoing by their employers and engage in other protected activities. At the federal level, numerous statutes include whistleblower protections in specific industries or for specific types of claims. The Sarbanes-Oxley Act of 2002 (SOX), for example, protects employees of publicly-traded corporations who report alleged fraud or violations of securities laws. The U.S. Supreme Court recently agreed to hear a case involving a dispute over who has the burden of proving “retaliatory intent” in SOX whistleblower cases.

New Jersey’s Conscientious Employee Protection Act (CEPA) prohibits employers from “tak[ing] any retaliatory action” against an employee for numerous protected activities. These may include the following:
– Reporting or threatening to report activities that the employee reasonably believes are illegal, unethical, or fraudulent;
– Cooperating with investigations or hearings regarding suspected illegal acts by the employer;
– Testifying in connection with such investigations;
– Objecting to activities or policies that the employee believes are unlawful, fraudulent, or against public policy; and
Reporting an alleged violation of CEPA.

While CEPA applies to all employers in New Jersey, the whistleblower protection provisions in SOX only apply to employers that are also publicly-traded corporations governed by the Securities Exchange Act of 1934 and Securities and Exchange Commission (SEC) regulations. The statute’s list of protected activities is similar to CEPA’s list, except that it only applies to reports and investigations related to certain types of fraud, including wire fraud, bank fraud, and securities fraud, as well as violations of SEC regulations and other securities laws.
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The New Jersey Legislature passed a law in 2021 that legalizes the recreational use of cannabis. The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) protects employees against adverse actions by their employers based on legal cannabis use. While the state has issued guidelines that address how employers should handle issues like impairment in the workplace, many aspects of the new law’s employment protections have yet to be tested in the courts. A New Jersey federal court recently ruled in favor of a plaintiff who has alleged wrongful termination by his employer in violation of CREAMMA, denying the defendant’s motion to dismiss.

The employment provisions of CREAMMA attempt to balance employees’ legal rights with employers’ interest in maintaining drug-free workplaces. Employers may not refuse to hire someone because they engage in legal cannabis use, nor may they fire them or take other adverse actions against them for that reason. Employees also have the right to refuse to engage in activities that are legal under CREAMMA. Drug testing by employers is allowed under certain circumstances. Employers may require that employees abstain from legal cannabis use and not be under the influence of cannabis during work hours. With some exceptions, though, they cannot prohibit lawful use outside of work.

The lawsuit described above arose from an automobile accident in late 2021 involving the plaintiff, who was driving a company vehicle at the time. According to the court, the plaintiff was not under the influence of cannabis or any other substance, nor did anyone suspect that he was. The employer required the plaintiff to submit to a drug test as a standard part of its safety policy. The plaintiff claims that, prior to the drug test, he alerted the employer about cannabis use outside of work about two weeks earlier. The test was positive for cannabis, resulting in the plaintiff”s immediate suspension.
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