The New Jersey Employment Law Firm Blog

October 23, 2023

NLRB Affirms Ruling Against New Jersey Employer for Interfering with Union Activities

The National Labor Relations Act (NLRA) protects workers’ rights to organize themselves and engage in collective bargaining. Employers may not interfere with employee activities related to self-organization. Once employees have chosen to join a union or form one of their own, employers must negotiate in good faith with union representatives. Both federal and New Jersey employment laws state that employers may not retaliate against employees who participate in union organizing or various other legally-protected activities. The National Labor Relations Board (NLRB) investigates complaints about alleged violations of the NLRA. It also adjudicates disputes arising from many complaints. A recent NLRB ruling found that a New Jersey employer violated two provisions of the NLRA related to interference with organizing and refusal to negotiate.

Section 8 of the NLRA identifies “unfair labor practices” by employers and unions. Under § 8(a)(1), an employer violates the NLRA if it “interfere[s] with, restrain[s], or coerce[s] employees” with regard to their rights to engage in organizing. An employer violates § 8(a)(5) if it “refuse[s] to bargain collectively with the [employees’] representatives.” Employees may file complaints with the NLRB alleging violations of these and other provisions. The NLRB’s General Counsel (GC) may bring administrative cases against employers. These cases may go before an administrative law judge (ALJ), followed by review by a panel of NLRB members.

The case before the NLRB originated with efforts to negotiate a new collective bargaining agreement (CBA) in 2018. The union represented about 165 employees at a facility in Annandale, New Jersey. It had filed unfair labor practice charges against the employer in 2016 and 2017 over disputes related to policies for personal time off and Paid Parental Time Off (PPTO). The employer reportedly revoked supervisors’ discretion over requests for personal time off, which the union claimed was in retaliation for an earlier complaint. A new policy initiated in 2017 gave eight weeks PPTO to non-union members, and none to union members. The union’s charges resulted in either dismissals or settlements.
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October 13, 2023

New Jersey Whistleblower Lawsuit Alleges Wrongful Termination for Reporting “Partying” at Conference

by Resnick Law Group, P.C.

Employees who suspect wrongdoing by their employers might not report their concerns if they fear losing their jobs. New Jersey employment laws seek to protect these employees, commonly known as whistleblowers, by prohibiting retaliation by their employers. Laws at the state and federal level allow employees to file civil suits for monetary damages and other forms of relief, often including reinstatement, if their employers take adverse action against them because of whistleblowing activities. A lawsuit pending in a New Jersey federal court alleges that an employer unlawfully retaliated against the plaintiff for reporting concerns about an executive’s conduct at an industry conference.

The New Jersey Conscientious Employee Protection Act (CEPA) protects whistleblowers in various situations, including reporting suspected illegal activity to a supervisor. The New Jersey Law Against Discrimination (NJLAD) bars employers from “tak[ing] reprisals” against employees who report or oppose unlawful discrimination or harassment. These laws protect a wide range of conduct aimed at opposing alleged violations of criminal and employment statutes.

According to the complaint, the defendant is a “global trading firm” that works with cryptocurrency. It has headquarters in Jersey City, London, and Tokyo. The plaintiff states that he worked for the defendant in Jersey City as its “Global Head of Options Trading – Americas.” He alleges that he “was a valued, well-respected employee and contributing team member,” and that he contributed to millions of dollars in profits for the defendant.
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October 6, 2023

EEOC Issues Updated Guidance for Visual Disabilities in New Jersey Workplaces

by Resnick Law Group, P.C.

The Americans with Disabilities Act (ADA) of 1990 protects employees and job seekers throughout the country from discrimination, harassment, and other acts because of a disability. It also requires employers to make reasonable accommodations that can allow employees with disabilities to perform their job duties. New Jersey employment law also protects against disability discrimination and mandates reasonable accommodations. In July 2023, the Equal Employment Opportunity Commission (EEOC) issued an updated guidance document regarding visual disabilities under the ADA. In addition to reasonable accommodations, the document addresses what employers may and may not ask employees and job applicants with regard to visual impairments.

Visual Disabilities Under the ADA

The ADA’s definition of “disability” involves conditions that “substantially limit[] one or more major life activities,” as well as a record or perception of having such a condition. The definition of “major life activities” includes “seeing.”

The EEOC takes a broad view of whether a visual impairment meets the “substantially limits” standard. If someone’s vision is “substantially limited when compared to the vision of most people in the general population,” it will consider that person to have a disability as defined by the ADA. This does not, however, include people who are able to function with “ordinary eyeglasses or contact lenses.”
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September 28, 2023

New Jersey Attorney General Affirms Commitment to LGBTQ+ Rights After Supreme Court Ruling

by Resnick Law Group, P.C.

Despite a few recent setbacks in the U.S. Supreme Court, New Jersey continues to offer some of the most extensive protections against discrimination in the country. New Jersey’s employment laws, in particular, cover a wide range of protected categories. Employers may not discriminate against employees or job applicants on the basis of those factors. The U.S. Supreme Court recently issued a ruling in 303 Creative LLC v. Elenis that effectively allowed a private business to discriminate based on sexual orientation despite a state law prohibiting that practice. In response, the New Jersey Attorney General issued a statement affirming that the laws in this state “remain among the strongest in the nation” when it comes to providing protection “against bias and discrimination.” While the Supreme Court decision does not directly impact employment discrimination law, it is worth noting the protections that remain in place for LGBTQ+ people in New Jersey.

The New Jersey Law Against Discrimination (NJLAD) protects a wide range of people from discrimination and other adverse treatment in the workplace. Its protections specifically extend to:
– Affectional or sexual orientation;
– Gender identity; and
– Gender expression.

The statute defines these terms with more specificity. “Affectional or sexual orientation,” for example, addresses how a person directs “affectional, emotional, or physical attraction or behavior” towards other people. “Gender identity or expression” refers to situations in which a person’s gender identity, or their expression thereof, does not necessarily align with stereotypes commonly associated with one’s sex.
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September 21, 2023

U.S. Labor Department Revises Wage Requirements for Federal Contracts in New Jersey and Nationwide

by Resnick Law Group, P.C.

The federal Davis-Bacon Act (DBA) of 1931 requires contractors to pay prevailing wages to all “mechanics or laborers” employed on certain federal public works projects. New Jersey employment law addresses prevailing wages for state projects. Failure to meet the prevailing wage requirements could result in termination of the contract and civil liability to workers. The Wage and Hour Division (WHD) of the U.S. Department of Labor is responsible for determining the prevailing wage for specific types of work in specified geographic areas. The current rule governing this process has been in place since 1983. The WHD published a new final rule in August 2023, which will replace the current rule on October 23. Among other changes, it expands the criteria that the WHD may consider when calculating prevailing wages.

The DBA defines “wages” to include hourly pay, medical benefits, worker’s compensation, pensions or retirement benefits, disability insurance, unemployment benefits, and other forms of compensation. “Prevailing wages” are based on several factors:
– The “class[] of laborers and mechanics” working on a project;
– The type of project; and
– The “civil subdivision of the State” — meaning the county — where the project is located.
Contractors and subcontractors working on federal contracts must pay workers every week at the worksite and post the wage scale somewhere where workers can see it.

Federal agencies may cancel a contract if the contracting officer discovers that the contractor is paying workers less than the applicable prevailing wage. The contractor may be liable for the costs incurred by the federal agency to complete the project. Since workers may find themselves out of a job in this situation, the DBA allows federal agencies to pay workers any wages owed to them directly out of withheld payments. If the agency does not have enough in the withheld funds to pay workers what they are owed, the DBA states that workers may file civil lawsuits against the contractor and its sureties.
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September 15, 2023

NLRB Ruling Changes Standard for Many New Jersey Employers’ Workplace Policies

by Resnick Law Group, P.C.

Employers’ workplace policies must comply with New Jersey employment laws. This includes federal laws passed by Congress and state laws passed by the New Jersey Legislature. At the federal level, the National Labor Relations Act (NLRA) protects workers’ rights to engage in organizing activities. The National Labor Relations Board (NLRB) adjudicates complaints from employees that allege violations of their rights. When an employment policy interferes with workers’ ability to organize themselves, the employer might be in violation of the NLRA. An August 2023 decision from the NLRB revises the standards that it uses to assess whether a particular policy or rule infringes on employees’ rights. It reverses a standard put in place in 2017 and reinstates an earlier standard with some modifications.

Workers have the right under § 7 of the NLRA to organize themselves in order to form or join unions. By organizing in this way, workers gain greater leverage in negotiations with their employers through a process known as collective bargaining. Employers violate the NLRA when they interfere with efforts to organize or engage in other activities intended to promote workers’ interests. Violations of these rights are possible even without obvious intent on the part of an employer. Policies or rules that appear neutral can still be unlawful in certain situations.

In 2017, the NLRB issued a ruling that established a standard for evaluating employment policies that remained in place until the recent decision. The 2017 standard gave greater leeway to employers than the standard it replaced. It identified three categories of employment policies, based on the level of scrutiny that it would apply:
– Category 1: Rules that are lawful, either because they generally do not interfere with workers’ rights or they serve a purpose whose important outweighs the possible impact on workers.
– Category 2: Rules that the NLRB assesses on a case-by-case basis to balance the extent of any NLRA violations against possible business justifications.
– Category 3: Rules that unambiguously infringe on workers’ rights.
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September 7, 2023

EEOC Publishes Proposed Rules for New Pregnancy Discrimination Law

by Resnick Law Group, P.C.

In late 2022, Congress passed the Pregnant Workers Fairness Act (PWFA) as part of the budget bill. The PWFA expands federal protections for employees who are pregnant or have recently given birth. While Title VII of the Civil Rights Act of 1964 bars employers from discriminating against employees and job seekers based on pregnancy or childbirth, it does not require them to make reasonable accommodations for pregnant workers and new parents. Many New Jersey employment laws, including the New Jersey Law Against Discrimination (NJLAD), require reasonable accommodations for pregnancy and childbirth. The PWFA adds this requirement to federal law for employers with at least fifteen employees. The law took effect on June 27, 2023. The Equal Employment Opportunity Commission published a proposed rule implementing the PWFA on August 11. It will accept comments from the public through October 10.

Title VII, as amended by the Pregnancy Discrimination Act of 1978, defines discrimination “on the basis of pregnancy, childbirth, or related medical conditions” as a form of unlawful sex discrimination. This includes refusing to hire someone, firing them, or demoting them because they are pregnant. The NJLAD also prohibits these types of discrimination, and it goes a step further by requiring employers to provide reasonable accommodations. For example, a pregnant employee might need extra restroom breaks, as well as a workstation in a location that provides quick access to a restroom. They might need additional water breaks, or temporary light duty assignments because of doctor-ordered lifting restrictions.

The PWFA requires employers to provide reasonable accommodations for “the known limitations related to [an employee’s] pregnancy, childbirth, or related medical condition.” It uses the definition of “reasonable accommodation” found in the Americans with Disabilities Act (ADA) of 1990. The term “known limitation” may include any condition related to pregnancy or childbirth that an employee has communicated to their employer, regardless of whether it meets the definition of a “disability” under the ADA. This does not apply to accommodations that “would impose an undue hardship on the operation of the [employer’s] business.” The employer must demonstrate that a particular accommodation would impose such a burden.
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August 31, 2023

NLRB Obtains Temporary Injunction in New Jersey Wrongful Termination Case

by Resnick Law Group, P.C.

Laws that protect employees’ rights can only be effective if workers feel confident that they can assert their rights without suffering even worse consequences from their employers. A worker who believes their employer has violated the law will not be likely to make a complaint if their employer can demote or fire them in retaliation and with impunity. Workers will hesitate to exercise their rights to engage in labor organizing if nothing is stopping their employers from retaliating against them. Federal and New Jersey employment laws include provisions that bar employers from discriminating or retaliating against workers who engage in protected activities. A New Jersey federal court recently granted a temporary injunction in a lawsuit brought by the National Labor Relations Board (NLRB) on behalf of several workers who alleged wrongful termination. The court ordered their employer to reinstate them.

The National Labor Relations Act (NLRA) protects workers’ rights to engage in activities related to organizing for the purpose of collective bargaining with their employers. Section 8(a)(1) of the statute prohibits employers from interfering with workers who are engaging in protected activities. Section 8(a)(3) bars discrimination against workers who have joined unions or participated in organizing. The NLRB has authority under § 10(j) of the NLRA to file lawsuits seeking injunctions to prevent or remedy violations of workers’ rights.

The defendant in the NLRB lawsuit operates a commercial cleaning business. According to the court’s ruling, two employees engaged in acts protected by the NLRA at various times in early 2022. This included meetings with representatives of the defendant at which they spoke on behalf of other employees regarding “employee grievances, such as mistreatment from supervisors and threats of being fired.” The two employees reportedly met with union organizers and representatives, followed by discussions with other employees about possibly joining the union. Within a few days, they heard from co-workers that the defendant “was looking for an excuse to fire [them].”
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August 25, 2023

New Jersey Court Denies Effort to Enjoin Temporary Workers Bill of Rights

by Resnick Law Group, P.C.

In February 2023, the New Jersey governor signed a bill that creates a Temporary Worker Bill of Rights (TWBOR). Employment statutes typically only protect people who meet a fairly specific definition of an “employee” that often excludes temporary workers. The TWBOR expands the protections offered by many New Jersey employment laws to include temporary workers employed by staffing agencies. Its effective date was August 5, 2023, 180 days after the date the governor signed it. In May, several trade organizations that represent staffing agencies filed a federal lawsuit seeking to enjoin the TWBOR on constitutional and statutory grounds. A judge denied their request for a preliminary injunction in late July, allowing the TWBOR to take effect on schedule.

The TWBOR covers temporary workers in multiple industries, including security, building maintenance, personal care services, food preparation, construction, manufacturing, repair, and transportation. These workers are directly employed by staffing agencies and provide services to client businesses. According to the New Jersey Legislature, temporary workers receive significantly lower pay than other employees for the same work and are more vulnerable to abusive workplace practices.

The new law imposes disclosure and recordkeeping requirements on temporary staffing agencies. It limits agencies’ ability to charge temporary workers for expenses like transportation to and from worksites. The provisions of the TWBOR that took effect on August 5 include a requirement that temporary workers receive wages that are at least equal to “the average rate of pay and average cost of benefits” for employees of the client businesses that do “the same or substantially similar work.” Violations of many of these provisions may result in civil fines and liability for damages to aggrieved temporary workers.
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August 17, 2023

Supreme Court Changes Standard in Religious Discrimination Claims

by Resnick Law Group, P.C.

New Jersey employment laws prohibit employers from discriminating against employees and job applicants on the basis of religion. At both the state and federal levels, laws dealing with religious discrimination in employment have two components. First, employers may not make adverse decisions or take adverse actions based solely or primarily on an individual’s religious beliefs, practices, or identity. Second, employers must make reasonable accommodations for employee’s religious practices, as long as doing so does not impose an “undue hardship” on them. The U.S. Supreme Court recently revisited the current standard, established in 1977, for determining what constitutes an undue hardship for religious accommodations. The court’s June 2023 decision in Groff v. Dejoy places a greater burden on employers to demonstrate undue hardship. This potentially grants greater rights to employees with religious obligations.

Title VII of the Civil Rights Act of 1964 defines “religion” to include “all aspects of religious observance and practice.” It requires employers to “reasonably accommodate” employees’ religious observances or practices, with an exception for “undue hardship” to the employer. The statute does not define this term.

In 1977, the Supreme Court addressed the meaning of the term in Trans World Airlines v. Hardison. It held that anything “more than a de minimis cost” would pose an undue hardship for the employer. This effectively means that anything beyond an insignificant cost to the employer would be excused under Title VII.
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