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COVID-19 RESOURCE CENTER FOR NJ EMPLOYEES

Sexual harassment is a serious problem in workplaces throughout New Jersey and the country. New Jersey law views it as a form of sex discrimination. While perhaps the most common image of New Jersey workplace sexual harassment involves a male supervisor or manager acting offensively towards a female employee, it can occur between people of any gender. A pair of lawsuits filed in a New Jersey Superior Court earlier this summer allege same-sex sexual harassment. The plaintiffs are male police officers. They both claim that their supervisor, a male police lieutenant, subjected them to ongoing sexual harassment.

The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination on the basis of sex, sexual orientation, race, and multiple other factors. Numerous court decisions have held that sexual harassment constitutes sex discrimination under the NJLAD and other statutes in several situations. One of these, known as “hostile work environment,” occurs when an employee faces unwelcome conduct of a sexual nature in the workplace, which is so severe or pervasive that it interferes with their ability to do their job.

The first court cases to recognize sexual harassment as a form of sex discrimination involved male supervisors harassing female employees. In a 1998 decision, Oncale v. Sundowner Offshore Services, the U.S. Supreme Court recognized that male-on-male sexual harassment can also violate employment discrimination laws. The case involved a worker on an offshore oil drilling rig who faced repeated acts of humiliation by his coworkers, ranging from mockery about his perceived sexual orientation to outright assault. A unanimous court held that “harassing conduct” based on sex could violate the law even if it was not “motivated by sexual desire.”
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Under the National Labor Relations Act (NLRA), employers may not interfere with or restrain New Jersey employee activities or those occurring elsewhere in the country that involve self-organizing for the purpose of engaging in collective bargaining. Employees may join an existing labor union or form one of their own without retaliation from their employers. In order for the NLRA’s protections to apply, a worker must be an “employee” within the statute’s meaning. In 2016, National Labor Relations Board (NLRB) ruled that student employees at private colleges and universities in New Jersey and around the country are “employees” under the NLRA. A proposed rule first published in 2019 would have changed the definition to exclude student workers. The NLRB withdrew the proposed rule in March 2021, so the 2016 ruling remains in effect.

Section 2(3) of the NLRA, codified at 29 U.S.C. § 152(3), offers a rather circular definition of “employee.” It does not state what an employee is. Instead, it provides that an individual is not excluded from being an “employee” for various reasons, such as if they lost their job due to an “unfair labor practice” or “current labor dispute.” An NLRB regulation adopted in 1970, 29 C.F.R. § 103.1, states that the NLRB may assert jurisdiction over claims involving private colleges and universities with at least $1 million in gross annual revenue.

The NLRB has ruled several times since 1970 on the question of whether students who work for the colleges and universities they attend should be considered “employees” under the NLRA. For thirty years, it excluded student workers from the definition of “employee,” but in 2000 it ruled that graduate student assistants should be included. It reversed its own decision in 2004, finding that graduate student assistants were students before they were employees. In 2016, it not only reversed its 2004 decision, but also expanded the definition to include both graduate and undergraduate student assistants.
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We are now almost a year and a half into the COVID-19 pandemic, and while the situation has improved considerably, we still face many problems. Several different vaccines are now available to most of the population, and they have shown that they are very effective against the early strains of the virus. Like all vaccines, though, they are not 100% effective. As of mid-July 2021, nearly seventy percent of adults in New Jersey are fully vaccinated. In some areas of the state, however, the rate remains below fifty percent. This raises two major questions for us as employment lawyers. First, what does New Jersey law have to say about employers that require their employees to get vaccinated? The answer to this question has changed over the last year, but it appears to be resolving in favor of employer vaccine mandates. The second question is whether a New Jersey employer that does not require vaccines violates workplace safety laws. This question does not have a clear answer.

Employer Vaccine Mandates

The only specific vaccine requirement found in New Jersey’s statutes, N.J. Rev. Stat. § 26:2H-18.79, involves the influenza vaccine. It requires healthcare workers to get the influenza vaccine annually. Employees cannot opt out of the flu vaccine, except for certain medical reasons.

State health officials are taking the position that employers can mandate vaccination for COVID. Guidance issued by the New Jersey Department of Health in March 2021 states that employers can require employees to get the vaccine as a condition of returning to the workplace, with three exemptions:
1. A disability that precludes an employee from getting the vaccine;
2. A doctor’s recommendation not to get the vaccine during pregnancy or breastfeeding; or
3. A “sincerely held religious belief, practice or observance.”
An employer must provide a reasonable accommodation to an employee who falls under one of these exemptions, unless doing so would pose an undue burden.
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Labor organizing has helped workers in New Jersey and around the country achieve better pay and improved working conditions for over a century. The National Labor Relations Act (NLRA) of 1935 protects workers’ right to engage in activities related to organizing and collective bargaining. The National Labor Relations Board (NLRB) is charged with certifying labor unions and adjudicating disputes under the NLRA. A decision issued in March 2021 by the NLRB could be of note for those involved in New Jersey employment law matters. The board decided to retain the “contract bar rule,” which limits the time for filing any petition that challenges a union’s status while a collective bargaining agreement (CBA) is in force.

Section 7 of the NLRA protects the rights of workers to “self-organization” and other labor organizing activities. Section 9(a) states that, once a majority of employees in a particular “unit,” have selected representatives for collective bargaining, they are the “exclusive representatives” for the employees in that unit. A union can lose its status as representative through a decertification petition filed with the NLRB. If at least thirty percent of the employees in a unit sign on to a petition to decertify the union, § 9(e) directs the NLRB to conduct a secret-ballot election of all employees to see if they favor decertification.

The contract-bar rule states that a petition to decertify a union cannot be filed during the first three years of a CBA, with two exceptions. First, a petition can be filed at any time if the CBA has a “union security clause” that “clearly” violates § 8(a)(3) of the NLRA. A CBA cannot require all of the employees in a unit to pay union dues unless it gives each employee a thirty-day grace period after their employment begins. A CBA that does not include the thirty-day period could be found invalid.
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Title VII of the Civil Rights Act of 1964 prohibits discrimination by employers on the basis of sex and other factors. Compared to New Jersey employment discrimination law (the New Jersey Law Against Discrimination), Title VII’s list of protected categories seems short. Federal court decisions have expanded the scope of the statute beyond the narrowest literal meaning of its words, to include categories or actions mentioned more specifically in other laws. Most recently, a 2020 decision by the U.S. Supreme Court held that Title VII’s prohibition on sex discrimination includes discrimination on the basis of sexual orientation and gender identity. In June 2021, the Equal Employment Opportunity Commission (EEOC) released guidance clarifying its interpretation of Title VII in light of the court’s ruling.

Federal law does not provide a specific definition of “sex” in the context of employment discrimination. The Supreme Court has built on the statute’s rather sparse language in several important rulings. In 1986, for example, the court ruled in Meritor Savings Bank v. Vinson that sexual harassment constitutes sex discrimination in violation of Title VII. That case involved sexual harassment of a female employee by a male supervisor. The court ruled in Oncale v. Sundowner Offshore Services in 1998 that sexual harassment of a man by male employees may also violate Title VII.

The Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins expanded the understanding of sex discrimination by holding that Title VII bars discrimination on the basis of “sex stereotyping.” The plaintiff in that case claimed that the defendant discriminated against her because she did not conform to expectations of how she should dress and behave as a woman. This decision did not lead directly to last summer’s ruling in Bostock v. Clayton County, but it set an important precedent.
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New Jersey employment discrimination law prohibits sexual harassment in almost every workplace in the state, but it still remains a serious problem. Lawmakers in Trenton introduced a bill at the beginning of 2021 that sought to address sexual harassment in political campaigns. After several revisions and amendments, the New Jersey Senate passed the bill in June 2021. A companion bill, introduced in the Assembly in February 2021, is still awaiting a committee hearing.

Sexual harassment is viewed under state and federal law as a form of unlawful discrimination on the basis of sex. Court decisions interpreting statutes like the New Jersey Law Against Discrimination (NJLAD) and Title VII of the Civil Rights Act of 1964 have identified two broad categories of actionable sexual harassment:
– “Quid pro quo sexual harassment” occurs when a person must submit to some sort of sexual demand as a condition of employment, such as a manager who hands out favorable shift assignments or other perks to employees who agree to sexual activity.
– “Hostile work environment” involves unwelcome conduct of a sexual nature in the workplace, which is pervasive or severe enough that a reasonable person would find it to be hostile and incompatible with a safe workplace.

Both statutes also prohibit employers from retaliating against employees who oppose or report unlawful practices. While these laws protect a wide range of workers, sexual harassment in the political realm can be complicated. Title VII excludes the federal government itself from liability for discrimination and harassment, but other statutes allow claims against government employees, and even elected officials. See, e.g. 42 U.S.C. § 2000e(b)(1), 2 U.S.C. § 1311. The NJLAD, on the other hand, includes “the State…and all public officers” in its definition of “employer.” N.J. Rev. Stat. § 10-5:5(e).
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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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