The New Jersey Employment Law Firm Blog

April 21, 2023

Congress Amends, Strengthens Whistleblower Protection Law

Our legal system encourages people who have information about wrongdoing by their employers to come forward and report what they know. This may involve violations of employment statutes, fraud or other criminal acts, or other forms of misconduct. Some statutes provide rewards for employees, known as “whistleblowers,” who provide information that leads to successful civil or criminal enforcement actions. Both federal and New Jersey employment laws protect whistleblowers from retaliation by their employers. The Anti-Money Laundering Act (AMLA), which the U.S. Congress enacted in 2020, includes whistleblower protections. At the end of 2022, Congress enacted the Anti-Money Laundering Whistleblower Improvement Act (AMLWIA). This law protects a wider range of individuals who report alleged unlawful activity. It also increases financial incentives for people to come forward.

In New Jersey, the Conscientious Employee Protection Act (CEPA) bars retaliation by employers against employees who engage in various whistleblowing activities. This might include:
– Reporting, or threatening to report, an activity that the employee reasonably believes is unlawful to a supervisor or regulatory agency;
– Participating in a public investigation or hearing that relates to alleged unlawful activity by the employer; or
– Objecting to or refusing to participate in an activity that the employee believes is illegal, fraudulent, or against public policy.

An employee in New Jersey who believes that their employer has retaliated against them in violation of CEPA has one year to file a lawsuit. Damages may include lost wages and benefits, reinstatement with full benefits and seniority, injunctive relief, and attorney’s fees.
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April 14, 2023

EEOC Issues Guidance for New Jersey Employment Law Regarding Disability Discrimination Based on Hearing Loss

by Resnick Law Group, P.C.

Federal and New Jersey employment laws prohibit discrimination on the basis of disability, which includes hearing loss. Employers must make reasonable accommodations for employees with qualifying hearing impairments as long as it does not create an undue hardship. The federal Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (NJLAD) often differ in the scope of their protections, with state law tending to be more expansive. The definition of “disability” under federal law, in turn, tends to be more restrictive. The Equal Employment Opportunity Commission (EEOC), which enforces the ADA and other federal employment statutes, recently issued guidance on how employers may address employees or job applicants with hearing disabilities.

The NJLAD defines “disability” as a range of conditions that either “prevent[] the typical exercise of any bodily or mental functions” or can be demonstrated through “accepted clinical or laboratory diagnostic techniques.” The ADA’s definition depends more on how a condition affects an individual. In order to qualify as a disability under the ADA, a condition must “substantially limit[] one or more major life activities.”

When an employee with a qualifying disability requests an accommodation, the employer must consider whether providing that accommodation would pose an undue hardship. They must work with the employee to find the best way to help them perform their job duties. Factors that employers may consider during this process include the cost of a requested accommodation and the effect it will have on the workplace, other employees, and the employer’s business.
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April 7, 2023

New Jersey Governor Signs Temporary Worker Bill of Rights

by Resnick Law Group, P.C.

New Jersey’s employment laws protect workers in this state from unlawful discrimination and retaliation, guarantee a minimum wage for many employees, and ensure that they will receive overtime pay for overtime work. In order for an individual to enjoy many of these legal protections, however, an employer-employee relationship must exist. Certain employment arrangements do not meet many legal definitions of “employment,” leaving some workers with no recourse if their employers underpay them or subject them to other forms of unfair treatment. A new law in New Jersey, the Temporary Worker Bill of Rights (TWBOR), will expand legal protections for workers employed by temporary staffing agencies. The law will take effect in two stages later this year.

The bill that became the TWBOR, A1474, made its way through the New Jersey Legislature for over a year before it finally became law in February 2023. The Assembly addressed the need for the law in the section on findings and declarations. More than 127,000 workers in New Jersey are employed by temporary staffing agencies. This includes around one hundred licensed agencies and an unknown number of unlicensed ones.

Temporary workers receive pay from their agencies for work performed for clients. According to AB1474, they earn an average of 41% less than employees who perform similar work as part of a formal employment relationship. Black and Latino workers are overrepresented among temporary workers when compared to overall employment in New Jersey. Temporary workers are generally more vulnerable to a wide range of exploitative or abusive practices, hence the need for the TWBOR.
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March 31, 2023

New Jersey Legislature Expands Scope of Mass Layoff Law

by Resnick Law Group, P.C.

Mass layoffs can create problems for employees, their families, and, in some cases, entire communities that depend on a single employer. Federal and New Jersey employment laws attempt to limit the impact of large-scale worker layoffs by requiring employers to give advance notice to workers who will be included in an upcoming layoff. The federal Worker Adjustment and Retraining Notification (WARN) Act of 1988 requires covered employers to give sixty days’ notice for sufficiently large layoffs. New Jersey enacted its own law, the Millville Dallas Airmotive Plant Job Loss Notification Act or “New Jersey mini-WARN Act,” in 2007. The legislature enacted a bill expanding the mini-WARN Act in 2020, but the COVID-19 pandemic interfered with its implementation. A new bill, signed into law by the governor in January, changes the bill’s effective date to April 10, 2023.

The New Jersey law gets its official name from a 2004 plant closing in Millville that reportedly resulted in the loss of several hundred jobs. It became law in December 2007 and took effect immediately. Prior to the legislature’s 2020 amendments, the statute applied to employers with at least one hundred full-time employees. It defined a “part-time employee” as anyone who worked less than twenty hours per week on average or had worked for the employer for less than six months. The statute applies to layoffs at “establishments,” defined as locations that an employer has operated for more than three years.

The mini-WARN Act applied to mass layoffs, also known as reductions in force (RIFs) that affected either:
– Five hundred or more employees at an establishment; or
– Fifty or more employees at an establishment, provided that they comprise at least one-third of the total number of people employed at that location.
Employers had to give notice at least sixty days in advance of a RIF. The statute required them to pay severance to any employee to whom they did not provide the required notice. The amount was equal to one week of pay for each full year of employment.
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March 24, 2023

Labor Department Issues Guidance for FMLA Eligibility for New Jersey Remote Workers

by Resnick Law Group, P.C.

New Jersey employment laws provide eligible workers with protected leave to deal with medical issues or care for family members. The federal Family and Medical Leave Act (FMLA) provides up to twelve weeks of unpaid leave for certain reasons. In order to qualify for leave under this statute, an employee must work for a covered employer and meet minimum work-hour requirements. An increasing number of workers in New Jersey and around the country are working remotely, which has raised questions about how the FMLA applies. The Wage and Hour Division (WHD) of the U.S. Department of Labor issued guidance in February 2023 addressing this and several other questions. Its position is that the FMLA’s protections apply to remote workers in much the same way that they would be available to on-site employees. It offers some clarifications on how eligibility criteria relating to an employee’s “worksite” apply to remote workers.

Eligibility for FMLA leave is complicated. The statute establishes criteria for the employer, the employee, and the purpose of the requested leave. It applies to employers with at least fifty employees. An employee must meet the following three criteria:
1. They have worked for the employer for at least twelve months. For this criterion, the twelve months do not need to be consecutive.
2. During the twelve-month period immediately before the employee requests leave, they have worked a minimum of 1,250 hours.
3. Their employer employs at least fifty people within seventy-five miles of their worksite.

Reasons for leave under the FMLA may include the following:
– A serious health condition that prevents an employee from performing their job;
– The birth, adoption, or foster placement of a child;
– A serious health condition of a spouse, child, or parent; or
– A “qualifying exigency” related to the active-duty military service of a spouse, child, or parent.
Employers violate the FMLA when they interfere with an eligible employee’s effort to use accrued leave time or discriminate against an employee because they requested or used leave. They must allow employees to return to the same position or a substantially similar position when their leave ends, with the same pay and benefits.
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March 17, 2023

New Labor Department Guidance Could Help New Jersey Remote Workers

by Resnick Law Group, P.C.

The Fair Labor Standards Act (FLSA) establishes a minimum wage for the entire country, requires employers to pay overtime when employees work more than forty hours during a week, and provides other protections for workers’ rights. A significant increase in the number of people working remotely over the past few years has raised questions about what constitutes “work time” away from the workplace. Non-exempt employees are entitled to pay for short break periods under the FLSA and New Jersey employment laws. Court decisions and administrative cases addressing this issue, however, have mostly involved time that non-exempt employees have spent in the workplace. The U.S. Department of Labor’s Wage and Hour Division (WHD) issued a Field Assistance Bulletin (FAB) in February 2023 that discusses break time for remote workers under the FLSA. Its conclusions are favorable towards the employees. While the FAB does not have the force of law, courts may be able to rely on it should this issue reach them.

FLSA regulations generally require employers to pay employees for job duties that they have performed, even if the employer did not specifically request it. For example, an employer must pay an employee who continues to work past the end of their shift in order to finish an assignment. This also applies when the employee performs the work off-site, including at the employee’s home.

An employee’s compensable time is not necessarily limited to the time they are actively engaged in their job duties. As a general rule, employees are entitled under the FLSA to get paid for rest breaks, but not meal breaks. Regulations define a rest break as a break lasting no more than twenty minutes that serves to “promote the efficiency of the employee.” “Bona fide meal periods,” as defined by the regulations, typically last at least thirty minutes. They are not considered compensable work time as long as the employee is relieved of all work responsibilities. The question for the WHD involves how these rules apply to remote workers.
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March 10, 2023

FTC Proposes Rule to Ban Noncompete Agreements in New Jersey and Nationwide

by Resnick Law Group, P.C.

Employers often use provisions in employment agreements to limit employees’ activities after the employment relationship has ended. The purpose of these provisions is to protect employers’ business interests, but they can be harmful to employees. Non-compete agreements restrict employees’ job prospects by limiting their ability to work for a company that competes with their current employer. The Federal Trade Commission (FTC) estimates that around 30 million workers are currently subject to a non-compete agreement. New Jersey employment law sets several important limits on non-compete agreements but still allows them. Only a few states have enacted laws that place significant restrictions on them. In early January 2023, the FTC issued a proposed rule that would make most non-compete agreements an unfair method of competition under federal law. The agency is currently accepting comments from the public regarding the proposal.

From an employer’s point of view, a non-compete agreement stops an employee from taking all the training and experience they have received on the job to a competitor. In practice, however, non-compete agreements can be so broad that they make it difficult for former employees to find new jobs at all. Employers may also try to enforce them against employees who were laid off, not just employees who quit.

New Jersey courts generally allow non-compete agreements if they meet the following three criteria:
– The agreement protects a valid interest of the employer.
– It does not place an undue hardship on the employee.
– It does not harm the public interest.
To meet the second criterion, a non-compete agreement usually has to have limits on the type of work involved, the geographic area, and the duration. A non-compete agreement could be enforceable, for example, if it prohibits a former employee from working for another company in a specific market sector within five miles of the employer’s location for a period of six months.
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March 3, 2023

Federal Budget Bill Includes New Legal Protections for New Jersey Workers Against Pregnancy Discrimination

by Resnick Law Group, P.C.

The Consolidated Appropriations Act (CAA) of 2023 became law on December 29, 2022. The bill includes two new laws, originally introduced as separate bills, that address pregnancy discrimination in the workplace. While New Jersey employment law provides a rather wide range of protections for employees who are pregnant or have recently given birth, federal law is still catching up. These new laws address the physical needs and limitations that often accompany pregnancy and childbirth, which may require accommodations in the workplace. The Pregnant Workers Fairness Act (PWFA) prohibits discrimination based on “known limitations” associated with pregnancy or childbirth. The Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act addresses the need for employees with newborns to have break time and a private location to express breast milk. Some provisions of the laws became effective immediately, while others will take effect later in 2023.

New Jersey Pregnancy Discrimination Law

Both Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD) prohibit discrimination on the basis of pregnancy, childbirth, and associated medical conditions. The NJLAD goes a step further than federal law by specifically requiring employers to make reasonable accommodations for pregnant employees, such as extra breaks for water or to use the restroom, modified work schedules, and lifting restrictions. At the federal level, the Americans with Disabilities Act (ADA) arguably provides this for at least some conditions related to pregnancy or childbirth, but it does not address reasonable accommodations in those specific contexts.

The NJLAD and the federal Fair Labor Standards Act (FLSA) both require employers to provide employees who are breastfeeding their children with a private location other than a restroom where they can express milk. Section 7(r) of the FLSA specifically states that employers are not obligated to pay employees for time spent exercising these rights.
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February 24, 2023

NLRB Obtains Injunction Against New Jersey Employer in Union Dispute

by Resnick Law Group, P.C.

New Jersey employment laws safeguard a wide range of rights for employees, including the right to a minimum wage and overtime compensation, a workplace free from unlawful discrimination, and the ability to organize and negotiate collectively for better working conditions. The National Labor Relations Act (NLRA) is a federal law that protects employees’ rights to self-organization and collective bargaining. It prohibits both employers and unions for coercing employees or interfering with their lawful activities. If an employer has allegedly violated its employees’ rights under the statute, the National Labor Relations Board (NLRB) has the authority to seek a temporary injunction blocking the employer’s alleged actions. A federal district court in New Jersey granted this type of injunction to the NLRB in late 2022.

The NLRA broadly protects workers’ rights to form or join unions. It prohibits a variety of unfair labor practices by both employers and unions. Employers violate the statute if they interfere with lawful employee actions or discriminate against employees because of organizing activity. The statute also imposes affirmative duties on employers. Once employees have chosen a union to represent them in contract negotiations, § 8(a)(5) of the NLRA makes it an unfair labor practice for an employer to refuse to negotiate with an authorized union representative.

The General Counsel (GC) of the NLRB can bring an administrative action against an employer or union for alleged NLRA violations. If the GC and the employer cannot reach a settlement, an administrative law judge (ALJ) will hear the case and render a decision. The members of the Board may hear appeals of ALJ decisions. From there, it may be possible to appeal a decision in the federal court system. One provision of the NLRA, however, allows the NLRB to seek relief from a federal court while a case is pending.
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February 16, 2023

NLRB Rules in New Jersey Workers’ Favor in Labor Disputes

by Resnick Law Group, P.C.

Many of the features that we take for granted in the modern workplace are the result of labor organizing that occurred decades ago. The forty-hour work week and eight-hour work day are examples of benefits that labor unions achieved not only for their own members but for workers across the country. New Jersey employment laws regulate minimum wage and overtime pay thanks to the work of unions. Partly in recognition of the important role labor organizing plays in protecting workers’ rights, Congress enacted the National Labor Relations Act (NLRA) in the 1930s. The National Labor Relations Board (NLRB) has the authority to adjudicate disputes involving alleged interference with organizing activities and other unlawful acts. Two recent NLRB decisions involving disputes arising in New Jersey demonstrate the NLRA’s importance for worker protection.

From workers’ point of view, the two most important provisions of the NLRA are probably § 7 and § 8(a). Section 7 broadly identifies workers’ protected rights, including self-organization and collective bargaining. Section 8(a) defines unfair labor practices by employers. These may include:
– Interfering with workers’ attempts to organize themselves;
– Preventing workers from forming or joining a union;
– Discriminating against employees because of protected union activities; and
– Refusing to engage in collective bargaining with employees’ lawfully chosen representatives.

The NLRB has the authority to investigate alleged violations of workers’ rights. The General Counsel of the NLRB may pursue a claim against an employer before an administrative law judge (ALJ). A party before an ALJ may appeal the ALJ’s decision to the full NLRB. Remedies for aggrieved workers may include back pay and reinstatement to a former position. The NLRB may also order an employer to cease and desist from further violations and to revise its employment policies and practices.
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