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.

PPP Update: What to Do When Employees Refuse to Return to Work

May 6, 2020 | No Comments
Posted by Ari Burd

As has been widely reported, some employees are refusing to be re-hired because they make more money from unemployment.  Technically, refusing to accept work should disqualify these individuals from unemployment benefits.  Nevertheless, this has not stopped many employees from refusing re-hire offers.  This presents a problem for employers who have received their PPP money and are worried this will affect the forgiveness of their PPP loan.

On May 3rd, the Treasury Department issued guidance suggesting that so long as a good-faith, written offer to re-hire has been made by the employer and rejected by the employee, the rejected employee will be excluded from the forgiveness reduction calculation.  In other words, this scenario will not reduce PPP loan forgiveness.  Interestingly, the FAQ does not say anything about the employer being required to seek a replacement for the employee who has refused to be re-hired.   The full question and answer from the FAQ is listed below:

Question: Will a borrower’s PPP loan forgiveness amount (pursuant to section 1106 of the CARES Act and SBA’s implementing rules and guidance) be reduced if the borrower laid off an employee, offered to rehire the same employee, but the employee declined the offer?

Answer: No. As an exercise of the Administrator’s and the Secretary’s authority under Section 1106(d)(6) of the CARES Act to prescribe regulations granting de minimis exemptions from the Act’s limits on loan forgiveness, SBA and Treasury intend to issue an interim final rule excluding laid-off employees whom the borrower offered to rehire (for the same salary/wages and same number of hours) from the CARES Act’s loan forgiveness reduction calculation. The interim final rule will specify that, to qualify for this exception, the borrower must have made a good faith, written offer of rehire, and the employee’s rejection of that offer must be documented by the borrower. Employees and employers should be aware that employees who reject offers of re-employment may forfeit eligibility for continued unemployment compensation.

As always, the Labor and Employment Law Department of Giordano, Halleran & Ciesla stands ready to assist you.  Please contact Ari Burd, Jeri Abrams or Jay Becker with any questions.

Important Update From the Department of Labor Regarding FFCRA Sick Leave and Family Leave

April 1, 2020 | No Comments
Posted by Ari Burd

The Department of Labor (“DOL”) has just issued important new guidance regarding the use of Families First Coronavirus Response Act (“FFCRA”) paid sick leave and emergency paid family leave. This is the sick and family leave that must be offered by certain employers as of today, April 1st and for which employers will receive a credit at the end of the quarter.  The DOL’s guidance differs from what was previously expected based on the plain language of the law. Specifically, be aware that the DOL has taken the position that:

  1. Furloughed employees are NOT eligible for FFCRA sick leave or paid family leave, despite the fact that furloughed employees remain employed, on the payroll and eligible for health benefits;
  2. If a worksite is closed, preventing the employee from working, the employee is NOT eligible to use FFCRA sick leave or paid family leave; and
  3. The DOL has seemingly confirmed that FFCRA sick leave or paid family leave is not available simply because of an office closure due to an executive order, such as the orders we are currently experiencing in New Jersey, New York and Connecticut.

The full list of DOL questions/answers/guidance can be found here:

The new DOL issued poster that must go up in office re: COVID-19 is here:

If you have any questions, please contact Ari Burd, Jeri Abrams and Jay Becker at the Giordano Halleran and Ciesla Labor and Employment law department.

Forgivable “Paycheck Protection” Small Business Loans

March 30, 2020 | No Comments
Posted by Ari Burd

Co-Authored by Christopher Marino
Federally mandated paid sick leave and emergency paid family leave goes into effect on April 1st (originally April 2nd).  For many employers who are concerned about covering payroll costs moving forward, the CARES Act may provide significant relief via an expansion of the ability to obtain loans under Section 7(a) of the Small Business Act.  This act was signed into law by President Trump on March 27, 2020.   In short, it provides that if an employer maintains their employees through June 30, 2020, they can receive a loan that will be forgiven, in the amount spent on payroll, interest on mortgages, rent or utility payments during an 8 week period. Read more

EMPLOYER ALERT: Coronavirus ‘Work from Home’ Issues and Considerations

March 6, 2020 | No Comments
Posted by Jay S. Becker

By now we have all read plenty about the Coronavirus (Covid-19), such as where it originated, how much it has spread and how we can all try to avoid it.

But one of the more drastic steps being taken by businesses is to instruct some or all employees to work from home, a practice commonly referred to as WFH. How many businesses, though, are truly prepared for a large population of employees working from home?

Here are just a few questions and issues, in no particular order, that come to mind when considering a WFH population.

Equipment. Are the WFH employees properly equipped at home to do the job effectively? Do they have a company computer or laptop? High-speed and secure wi-fi? Proper spam filter/security to ensure a computer bug/virus is not spread throughout the corporate server? Security/fire wall/encryption to prevent a hack and to ensure confidentiality of business records? Proper setups for video conferencing/telepresence? Simple items like a scanner/printer, office equipment, etc.? Read more

EMPLOYERS BEWARE: $2.4M Jury Verdict Serves as a Reminder of the Duty Employers Owe to Their Employees

February 14, 2020 | No Comments
Posted by Jay S. Becker

A recent New Jersey Superior Court case involving PNC Bank as a defendant should serve as an eye-opening reminder to all employers that it has a duty to maintain a safe and healthy workplace for all employees, free from harassment, discrimination and any other tort or prohibited conduct. Notably, this duty to maintain a safe and healthy workplace not only applies to the eradication of wrongdoing by employees, but also affords protection to employees from improper acts of non-employees such as customers, clients, vendors, independent contractors, etc.

Following a jury trial in Essex County, PNC Bank was deemed liable in the amount of $2.4 million in damages, consisting of both back and front pay, as well as past and future emotional distress damages, awarded to a former employee who claimed she was the victim of a sexual assault/gender discrimination by a bank customer in 2013. The Plaintiff argued that the customer in question was known by the Bank to have groped and harassed others in the past, yet the Bank did not take the appropriate, remedial measures to ensure her safety and prevent it from happening again.

Although the Bank claims that it had no such knowledge of the prior bad acts of the customer and had no way of knowing any such assault would occur towards the Plaintiff, the jury clearly did not accept that defense.

This case is yet another example on how important it is to have a well-established and widely distributed anti-harassment and discrimination policy and training for all staff in the workplace, applicable to all those susceptible to harassment or discrimination in the workplace, whether it be by fellow employees or otherwise, such as customers or guests.

NJ On the Verge of Requiring Severance Benefits for Employees During Mass Layoffs

January 21, 2020 | No Comments
Posted by Ari Burd

Co-Authored by Jeri Abrams

Governor Murphy is expected to sign a bill which will require large employers (100 or more employees) to offer severance during mass layoffs.  Mass layoffs mean the termination of 50 or more employees, including both part-time and full-time employees.  For those employers with more than 100 employees, some of the significant changes proposed by this law include:

  • Increasing the amount of notice to employees of a mass layoff to 90 days (up from 60);
  • Adding a four week severance payment penalty for an employer’s failure to meet the 90 day requirement; and
  • Requiring payment of severance to employees equal to one week of pay for each year of service.

The law also appears to broaden the definition of an “employer” so that it would include those responsible for the layoff, including those that own the employing entity.

Once signed into law, we will provide a follow up with a more detailed analysis.

Being An Employer in New Jersey Just Got Harder: Introducing the New Jersey Wage Theft Act

September 23, 2019 | No Comments
Posted by Ari Burd

When it comes to employment laws, New Jersey has long been considered one of the more employee friendly states in the country. Seeking to solidify its employee friendly status, on August 6, 2019, New Jersey formally enacted the New Jersey Wage Theft Act (“WTA”). The law triples(!!!) the statute of limitations for wage claims and drastically increases damages available to employees who have not been paid properly.

The important points every employer needs to know are:

1) The statute of limitations for wages claims is now 6 years. You must now retain wage and hour records (payroll records/timesheets) for six years! If an employer fails to maintain sufficient time keeping records, there is an automatic presumption that the employee worked for the period of time claimed by the employee and for the amount of wages alleged in the wage claim. In other words, if you don’t have the records to refute the employee’s claim, the assumption is the employee’s claim is true and they can potentially recover six years’ worth of wages.

2) Failure to properly pay wages results in an employer having to pay liquidated damages equal to 200% of the claim. For example, a failure to pay $100 in wages will cause the employer to owe $300 ($100 compensatory damages + $200 liquidated damages). In addition, the employer will be liable for legal fees and costs incurred by the employee in bringing the claim. On the bright side, there is a provision that allows an employer to possibly escape such liability, though it only applies to first time offenders and requires the full amount owed be paid within 30 days of notice of the wage violation.

3) If an employee is terminated within 90 days of filing a complaint regarding unpaid wages, there will be a presumption that the employer’s action was taken in retaliation against the employee for bringing the wage related claim.

For a further discussion on this issue, or any other labor and employment law matter, please feel free to contact Jay Becker, Ari Burd or Jeri Abrams of the GH&C Labor and Employment Law Department.

EMPLOYERS BEWARE: Asking An Applicant the Wrong Question During an Interview May Cost You!

July 29, 2019 | No Comments
Posted by Jay S. Becker

On July 25th, filling in for Governor Phil Murphy who was on vacation, acting Governor Sheila Oliver signed into law Assembly Bill 1094, effectively barring employers from asking applicants about past salary and benefit history. The law takes effect January 1, 2020.

In an attempt to eliminate gender based hiring practices, and to close the gender pay gap, New Jersey joins at least 18 other states and a number of large cities (including NYC, Chicago and Philadelphia) that prohibit such questions during the application stage of employment, and the list is growing. Applicants can certainly volunteer the information at which time an employer may follow up and even seek written confirmation, but an employer cannot (directly or indirectly) inquire about compensation history until after it is voluntarily provided by the applicant, or until after an offer of employment has been made to the applicant. It is important to note that A1094 does not prevent an employer from asking an applicant what his/her compensation requirements are, which assists employers in determining whether an applicant fits into the company’s budget and compensation scheme. However, asking an applicant about his/her desired salary requirements/expectations, is quite different than asking about one’s actual salary history.

A1094 does not just apply to salary/compensation related questions asked orally during live interviews. It also applies to salary-type questions in application forms, such as those that appear in print or online, as well as questions posed by third parties hired by employers, such as headhunters and recruiters. In order to comply with the new law, a review of all existing job applications in any form or medium must be performed to remove requests for salary history. Failure to comply with A1094 may result in fines ranging between $1,000 and $10,000 depending on the number of offenses (payable to the NJ Department of Labor). A violation may also serve as a basis for a civil lawsuit by the applicant who was asked the questions improperly under the NJ Law Against Discrimination based on gender discrimination and under the NJ Pay Equality Act.

Feel free to contact the author, or any other member of the GH&C Labor and Employment Law Department to discuss this new law, or any other labor and employment law related matter.

EMPLOYER ALERT: In New Jersey’s Latest Medical Marijuana in the Workplace Ruling, Employers Must Consider All Applicable Employment Laws, Not Just the Most Obvious One

March 28, 2019 | No Comments
Posted by Jay S. Becker

Co-Authored by Ari G. Burd

Yesterday, in Wild v Carriage Funeral Holdings, Inc., the Appellate Division reinstated a medical marijuana user’s lawsuit who had claimed that he was terminated for using medical marijuana outside of the workplace.  The plaintiff, who was undergoing treatment for cancer, was lawfully using medical marijuana for pain under the Compassionate Use Medical Marijuana Act.

In granting dismissal in favor of the employer, the lower court held that the Compassionate Use Medical Marijuana Act did not unconditionally protect the use of marijuana by employees and further, did not insulate employees from compliance with the terms and conditions of an employer’s reasonable zero-tolerance/drug free workplace policy.  However, in reversing and remanding the lower court’s decision, the Appellate Division ruled that the matter had been dismissed prematurely, by not taking into consideration other employment laws that may afford protection to the plaintiff, such as the New Jersey Law Against Discrimination (“LAD”), noting in particular that an employer still has a duty to not discriminate based on a disability, and still has a duty to reasonably accommodate a known medical issue such as the one in this case, cancer.  The Appellate Division reinstated the complaint to allow the plaintiff an opportunity to prove disability discrimination and failure to accommodate violations under the LAD. Read more

New Law Limiting Employment Contracts and Settlement Agreements

March 19, 2019 | No Comments
Posted by Ari Burd

S121 has been signed into law by Governor Murphy.

The law appears to provide that any “non-disclosure provision” in any employment contract or settlement concealing the details related to discrimination, retaliation or harassment is unenforceable.   This law does not apply retroactively.  So all agreements previously signed remained in force.  It is unclear how this will affect non-disparagement clauses in settlements moving forward.  Additionally, if an employee is free to tell their side of the story after settlement, speak of their experience in obviously unflattering terms and appeal to the court of public opinion, what incentive will employers have to settle these cases?   Are plaintiffs (and their attorneys) suddenly going to accept far less to settle cases now that one of the major reasons an employer would have settled the claim is no longer enforceable? Read more

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