NJ Labor And Employment Law

The New Jersey Labor and Employment Law Blog is authored by Jay S. Becker and Joseph C. DeBlasio, shareholders in the Labor and Employment Law Practice Group, with support from the associates in the Group. It is dedicated to provide news and updates regarding all labor and employment matters throughout New Jersey.

NJ Announces Minimum Wage Increase

January 21, 2019 | No Comments
Posted by Ari Burd

Governor Murphy, Senate President Sweeney and Assembly Speaker Coughlin have just announced their plan to increase New Jersey’s minimum wage to $15 per hour. Currently, minimum wage in New Jersey is $8.85 per hour.

Under the proposed plan, minimum wage would increase to $10/hour on July 1, 2019. Minimum wage would then increase by a dollar per year as follows:

  • 1/1/2020 – $11
  • 1/1/2021 – $12
  • 1/1/2022 – $13
  • 1/1/2023 – $14
  • 1/1/2024 – $15

Note that this increase will be delayed for some workers. Seasonal workers and employees at businesses with five or few workers won’t be eligible for the $15 minimum wage until 1/1/26. Agricultural workers will also be subject to different rules. More details on the plan will certainly follow in the coming weeks.

Do You Have Employees in New York or Do Business with the State of New York? If So, New Sexual Harassment Policy and Training Requirements Now Apply to You.

November 15, 2018 | No Comments
Posted by Ari Burd

Co-Authored by Jeri Abrams

New York and New York City have implemented strict requirements involving sexual harassment policies and training.  The requirements apply not only to businesses located in New York, but also apply to any contractor doing business with the State of New York and its agencies.

Every New York employer is now obligated to have in place, and distribute to its employees, a sexual harassment policy that meets very specific requirements in accordance with New York law.  Additionally, no later than October 9, 2019, every New York employer must have completed providing, interactive, sexual harassment prevention training to its employees.  This training must take place annually thereafter.

For those merely doing business with the State of New York and its agencies (but not necessarily located in New York), these rules also apply to you.  Even if you do not maintain an office in New York, but merely seek to be a contractor bidding to provide goods or services to the State of New York or its agencies, as part of your bid, you will be required to certify that you have sexual harassment policies and provide annual training to all employees.

For those employers located in New York City, in addition to the State of New York rules, there are a number of additional requirements that must be met.  The NYC Commission of Human Rights has prepared an anti-sexual harassment poster that must be prominently displayed in the office and also requires a fact sheet be distributed to all employees or included in the employee handbook.   In addition, there are some distinctions between the State’s training requirements and the City’s training requirements, the most important of which is that employers with 15 or more employees in New York City must provide sexual harassment prevention training within 90 days for any employee hired on or after April 1, 2019.

If you have any questions or need assistance bringing your business into compliance with these new rules, please contact Ari Burd (aburd@ghclaw.com) Jeri Abrams (jabrams@ghclaw.com), or Jay Becker (jbecker@ghclaw.com) in Giordano, Halleran and Ciesla’s Labor and Employment Department.

Are You Ready for NJ’s New Paid Sick Leave Law that Goes into Effect on October 29th?

October 9, 2018 | No Comments
Posted by Ari Burd

Have you updated your sick leave or paid time off policy as required by New Jersey’s new MANDATORY paid sick leave law? This law goes into effect on October 29th and will apply to every business in New Jersey, regardless of size. The law requires, among other things, that you provide at least 40 hours of paid sick leave per year to all employees (even part-time employees). If you currently offer at least 40 hours of general, Paid Time Off (“PTO”) that includes sick leave, you may already be in partial compliance with the law. However, the law also sets strict requirements for the rate at which your employees accrue paid leave and technical rules regarding the carry-over and/or pay out of up to 40 hours of unused leave at the end of each benefit year. The carry-over and/or payout of unused sick time is now required regardless of whether paid sick time accrues or is granted outright at the beginning of the benefit year, though the State is still in the process of reviewing comments on its proposed regulations that could change this and other requirements. The State’s poster regarding the new law can be found here:
https://www.nj.gov/labor/forms_pdfs/mw565sickleaveposter.pdf.

If you need assistance bringing your policies into compliance with the law, please contact the GH&C Labor and Employment Department.

United States Supreme Court Rules in Favor of Employers Regarding Class Action Arbitration

May 25, 2018 | No Comments
Posted by Ari Burd

Striking a major blow to employees, in a 5-4 ruling (along party lines which shows the importance of Trump appointee Gorsuch), the United States Supreme Court has ruled that employers can require employees to waive their right to class action lawsuits and may instead force employees to arbitrate their claims individually. This is particularly important in the wage and hour context, where employers who are alleged to have failed to pay proper wages often find themselves facing class-action suits, where many employees, each owed a small amount of money, join together to form one large and potentially very expensive wage and hour action. If, as the United States Supreme Court has just ruled, individuals can be prevented from joining together and can be required to bring such claims individually through arbitration, the number of individuals willing to go through the judicial process alone, without the company and strength of a “class” may decrease dramatically. Moreover, the plaintiff’s bar may think twice about bringing an individual action as the fee potential will dramatically lower.

As a result of this ruling, all employers should immediately consider whether to require employees to sign some form of an arbitration agreement. Of course, employers must be mindful of the fact that arbitration does have its disadvantages, such as the costs involved and the wage and hour experience of the arbitrator assigned that ultimately adjudicates the matter (as opposed to seasoned federal court judges).

For more information, please contact any attorney in the GH&C Labor and Employment Department at 732-219-5480 or via email at: jbecker@ghclaw.com, aburd@ghclaw.com and jabrams@ghclaw.com.

NJ Raises the Bar For Enforcement of Arbitration Provisions

April 6, 2018 | No Comments
Posted by Ari Burd

Arbitration provisions are routinely enforced by courts, however, a recent ruling by the US District Court of New Jersey just made enforcement a little harder.

In Schmell v. Morgan Stanley & Co. Inc., No. CV 17-13080, 2018 WL 1128502 (D.N.J. Mar. 1, 2018) a former employee alleged he was not bound by Morgan Stanley’s mandatory arbitration agreement because he had never actually agreed to it. Morgan Stanley had sent an email to its employees alerting them to the fact they would be required to arbitrate all claims and indicated in the email that the employee’s continued employment at Morgan Stanley would be considered consent to mandatory arbitration.  The plaintiff in this case argued he’d never received the email and as such, he had never agreed to mandatory arbitration.  The District Court agreed finding that because Morgan Stanley could not show the plaintiff had received, reviewed or agreed to the provision, the mandatory arbitration agreement was not enforceable.

While these sorts of electronic notices have become common place, moving forward, any employer who wishes to have their employees be bound by an arbitration agreement sent electronically must take additional steps. These steps will include a method of confirming that the employees viewed the notice, reviewed it and agreed to be bound by it either by executing the agreement or failing to opt out in the time provided. For assistance on how to do this, please contact the GH&C Employment Department.

Potential Game Changing Decision: Extended Leave Not A Reasonable Accommodation

October 12, 2017 | No Comments
Posted by Ari Burd

The 7th Circuit Court of Appeals has just ruled that extended time off, after all paid and Family Medical Leave Act (“FMLA) leave has been exhausted is not a “reasonable accommodation” under the Americans with Disabilities Act (“ADA”).   The decision in the matter Severson v. Woodcraft, Inc., runs contrary to the long standing position taken by the Equal Employment Opportunity Commission and many courts that have routinely held that even when an employee has exhausted all leave, the employer must still perform an “undue hardship” analysis to determine if it must maintain the individual’s employment.  The analysis often leads employers to maintain employees on their books for lengthy periods of time, sometimes in excess of 12 months, even after all leave has been exhausted.   In Severson, the court held that the employer was not obligated to provide its employee additional leave after his FMLA leave had expired.  The employee had indicated that he would be able to return to work two or three months after his FMLA leave had expired.  In finding that providing an additional two or three months of leave was not a reasonable accommodation, the Court ruled that the ADA is not a medical leave statute and should not be used to create an “open-ended extension of the FMLA.”

For those outside of Illinois, Indiana and Wisconsin, this decision does not change anything…yet.  However it suggests that the tide is turning on this issue to a more reasonable interpretation of what is a “reasonable accommodation.”  Stay tuned.

Much to the Satisfaction of Employers Across the State, Governor Christie Vetoes 2 Employment Law Bills

August 16, 2017 | No Comments
Posted by admin

Authored by:
Jay S. Becker
Jeri L. Abrams

Ari G. Burd

Recently, Governor Christie vetoed 2 pieces of workplace related legislation.

One bill that was vetoed sought to ban employers from inquiring about job applicants’ salary histories.  The objective behind the bill was to help close the gender pay gap, but Governor Christie disagreed, stating that the bill “would punish, as discriminatory, otherwise innocuous conduct done with neither discriminatory intent nor a discriminatory impact.”  This means that New Jersey employers remain free to ask prospective employees about their prior wages, salaries and benefits.  However, keep in mind that there are still many restrictions on what a prospective employer can ask job applicants.  For example, New Jersey’s “ban the box” law prohibits employers from asking an applicant about a criminal record until after the applicant’s first interview.

The Governor also conditionally vetoed a bill that would have significantly expanded New Jersey’s Family Leave Insurance program.  In his veto message, Governor Christie argued that the bill would “make it increasingly difficult and expensive to run a business, especially a small business” and would also be a “costly expansion … that will result in increased taxes to be paid by working citizens in New Jersey.” The proposed legislation would have, among other things, increased the number of weeks an employee could receive benefits from 6 to 12, boosted the maximum benefit amount, added siblings, grandparents, grandchildren and parents-in-law to the list of covered caregivers and provided job protection to employees of employers with 20 or more workers.  While New Jersey’s current Family Leave Insurance program does not mandate job protection, remember that an employee’s job may still be protected if the employer is subject to the federal Family and Medical Leave Act or the New Jersey Family Leave Act.

Should you wish to discuss the above, or for assistance regarding the application, interview and hiring process or an employer’s obligations under the various family and medical leave laws, please contact GH&C’s Labor and Employment Law Department.

Medical Marijuana in the Workplace

May 16, 2017 | No Comments
Posted by Ari Burd

New Jersey, like 28 other states in this country, allows individuals to use marijuana for medicinal purposes.  From time to time, employers in NJ may receive accommodation requests from employees with medical marijuana prescriptions.  Although medical marijuana is legal, employers in New Jersey are under no duty to accommodate such requests.  Additionally, even if an employer wanted to accommodate such a request, the employer would have to carefully consider the situation, including potential liability.   For more details on the rights of employers and what they need to consider under these circumstances, please contact GH&C’s Labor and Employment Department for assistance.

What Should An Employer Do When An Ill or Injured Employee Has No Available Leave?

April 7, 2017 | No Comments
Posted by Ari Burd

Co-Authored By Jeri L. Abrams

When an ill or injured employee fails to return to work after they have exhausted all available leave (or were never eligible for leave in the first place), an employer cannot automatically terminate the employee.  The courts in New Jersey have held that a “reasonable accommodation” for a disability includes providing additional, unpaid leave to an employee beyond what is required by any specific law (such as the Family Medical Leave Act), so long as doing so is not an “undue hardship” on the employer.

Undue hardship is a high standard to meet.  Determining whether or not extending a leave of absence is an undue hardship must be based on an individualized assessment of current circumstances.  Such an assessment must include consideration of a wide range of factors, including, but not limited to, the cost of the accommodation and the impact it will have on the employer.  A New Jersey employer’s failure to properly understand and analyze all of the relevant factors could open the door to legal action by the employee alleging disability discrimination.

For more details on what employers need to consider in these circumstances and how to avoid costly litigation, please contact GH&C’s Labor and Employment Department for assistance.

Dealing with Problem Employees

March 2, 2017 | No Comments
Posted by Ari Burd

Co-authored by Jeri Abrams

Every office has a problem employee.  They’re chronically late.  They don’t meet deadlines. They don’t accept criticism, etc.  When they begin to sense their employment is in jeopardy, they start to blame others for their failings, suddenly claim they are being harassed or targeted, demand leave, etc.  More often than not, these are the employees who turn around and try to sue their employers after they’ve been terminated.  Even more frustratingly, these same individuals will typically allege they were model employees before their termination.  So how can you, as an employer, protect yourself?

There are a number of strategies for avoiding employment litigation.  The first is, no matter what the size of your business, always document employee issues.  If an employee isn’t meeting expectations, you should make the employee aware of this fact.  There’s nothing wrong with having a verbal discussion, but make sure that you always document your actions so that there is a written record.  For example, take five minutes after the discussion to email the employee a quick summary of what you discussed.  If issues persist, additional warnings should follow, with a written record of the warning always placed in the employee’s file.   Taking a few minutes to create a written record of an employee issue could be the difference between scaring off a litigious ex-employee and incurring thousands of dollars in legal fees to defend against a frivolous suit.

For more strategies on how to avoid employment related lawsuits and keep your workplace problem free, please contact GH&C’s Labor and Employment Department for assistance.

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