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.

UPDATE: Governor Christie Vetoes Bill Prohibiting Discrimination Against the Unemployed

August 25, 2014 | Comments Off
Posted by Ryan Carlson

On June 4, 2014, we blogged about the New Jersey Senate’s approval of a bill (S.1440) that would make it unlawful for New Jersey employers to discriminate against job applicants who are currently unemployed.  This prohibition would apply to the hiring process as well as to the setting of terms and conditions of employment.

On August 15, 2014, Governor Chris Christie put a huge road block in the bill’s path towards becoming new law when he vetoed the bill in its entirety, and for good reasons. The Governor’s central concern with the bill is the practical issues involved with its enforcement.  The New Jersey Department of Labor (“NJDOL”) is charged with enforcing the bill through summary proceedings and the assessment of civil penalties against employers who are found to have violated the bill.  Specifically, the Governor’s veto argued that there would be no practical way to enforce the bill through this mechanism because the NJDOL would be required to conduct an in-depth factual analysis to determine the subjective reasons why an employer chose not to hire an applicant.  Governor Christie further argued that New Jersey law already prohibits employers from including in their job advertisements any requirement that an applicant must be currently employed to be qualified for the position.  According to the Governor, this law already advances the public policy that employers should consider applicants regardless of their unemployment history and is enforceable by examining the advertisement itself rather than the type of subjective in-depth factual analysis involved in a summary proceeding.  As such, the new bill would not provide any additional benefit to the unemployed and only drive up the cost of doing business for employers in New Jersey.

While both houses of the Legislature could override Governor Christie’s veto, this would require a two-thirds majority vote to pass.  Therefore, it does not appear likely that the bill will pass in this session.

We will continue to track the progress of the bill.  For more information, do not hesitate to contact us.

EMPLOYERS BEWARE: New Jersey Implements New Law Governing Criminal Background Checks For Job Candidates Effective March15, 2015

August 14, 2014 | Comments Off
Posted by Jay S. Becker

Co-Authored By Ryan S. Carlson

On August 11, 2014, Governor Chris Christie signed into law the New Jersey Opportunity to Compete Act, A-1999/S-2124 (commonly referred to as the “Ban the Box Law”), which sets forth new requirements governing criminal background checks by prospective employers for job candidates.

Effective March 15, 2015, the law applies to all New Jersey employers with 15 or more employees.  The law prohibits employers from inquiring about a job applicant’s criminal record until after the employer has conducted an initial interview of the applicant. According to the law, it will be illegal for employers to ask applicants whether they have been convicted of a crime on a job application, advertisement or during an initial interview, whether or not the interview is conducted in person or on other platforms such as by telephone or video conference.  After the initial interview, however, the law permits the employer to make any inquiries into the candidate’s criminal history.  The law also provides that an employer cannot refuse to hire an applicant based upon a criminal record that has been expunged or pardoned.

While the law appears to be a victory for some job candidates as it removes criminal history as an element that an employer may consider at the initial stage of the hiring process in most cases, the law contains some important exceptions and protections for employers.  Most notably, the law does not prohibit employers from inquiring about a candidate’s criminal history on a job application or during an initial interview if the position sought is for certain safety sensitive positions including law enforcement, corrections, the judiciary, homeland security, or emergency management positions. The law also does not apply when a criminal background check is required by a certain law or regulation that requires such checks for the job position.

Applicants who believe a prospective employer violated the law cannot bring a civil claim against the employer.  Rather, the law makes it clear that civil penalties enforced by the New Jersey Department of Labor, Commissioner of Labor and Workforce Development are the exclusive form of remedy for violations of the statute.  These penalties include $1,000 for a first violation, $5,000 for the second violation and $10,000 for each subsequent violation.

New Jersey employers should conduct a review of their hiring procedures and more particularly, their job applications to ensure that any boxes or spaces requesting criminal history information is removed so as to comply with this new law.

For assistance, or if you have any questions, please contact us.

Are College Athletes Students or Employees?

July 11, 2014 | Comments Off
Posted by Jay S. Becker

Players on the Northwestern University football team recently filed a petition with the National Labor Relations Board (NLRB) to organize for collective bargaining purposes. Are college athletes students or employees?

Representation by a union under the National Labor Relations Act (NLRA) has been reserved solely for those in an employer/employee relationship. A good argument in this case can be made for both sides.  Black’s Law Dictionary defines an “employee” as a person who performs services and is under the control and direction of another.  The definition of “employment” includes a state of being which consumes time and/or attention.  On average, the Northwestern football players claim that they spend in excess of 40 hours a week on their sport.  For traditional employees, there are overtime laws that protect employees for working in excess of 40 hours in a workweek.  There are also worker’s compensation laws that provide benefits to employees in the event of a workplace related injury.  No such laws exist to protect student athletes in similar situations.

On the other side is the argument that these football players (like all student athletes) are students first and foremost, presumably playing due to a passion for that sport, while receiving a free education, room and board.  Moreover, student athletes also receive other benefits such as tutoring, preferential class selection and scheduling not available to the rest of the student body.

For now college athletes remain students, not employees.  But rest assured, we have yet to hear the end of this debate, which will likely be decided by the US Supreme Court.

New Jersey Bill Prohibiting Discrimination Against The Unemployed Edges Closer To New Law

June 4, 2014 | Comments Off
Posted by Ryan Carlson

On May 12, 2014, the New Jersey Senate approved a Bill (S.1440) that would make it unlawful for New Jersey employers to discriminate against job applicants who are currently unemployed.  This prohibition would apply to the hiring process as well as to the setting of terms and conditions of employment.

New Jersey law (NJSA 34:8B-1) currently prohibits employers from discriminating against unemployed persons in job postings or advertisements.  The proposed Bill, if passed, would expand protection to preclude discrimination of unemployed individuals with regard to hiring, compensation, or other terms, conditions or privileges of employment.  However, the Bill would not prohibit an employer from inquiring into an applicant’s employment history and the circumstances surrounding an applicant’s separation from prior employment.

A significant difference between the New Jersey Bill and similar laws prohibiting discrimination against the unemployed such as New York City’s Law, which became effective on June 1, 2013, is that the New Jersey Bill does not provide employees with a private cause of action to sue employers for discrimination.  Under the New Jersey Bill, employers who violate the Bill face fines of up to $1,000 for the first offense, $5,000 for the second offense and $10,000 for each subsequent offense, which is enforced by the New Jersey Department of Labor and Workforce Development.  On the other hand, individuals who believe they have been discriminated against by New York City employers on the basis of their employment status have the right to sue in court and recover compensatory and punitive damages, as well as attorneys’ fees.

We will continue to monitor this Bill as it makes its way to the Assembly for approval before reaching the Governor.

Please contact us for more information or assistance.

Joseph C. DeBlasio, Esq. To Speak at DRI’s 37th Annual Employment and Labor Law Seminar, May 7-9, 2014

April 14, 2014 | Comments Off
Posted by Joseph C. DeBlasio

Joseph C. DeBlasio, Esq., co-chair of the firm’s Labor and Employment Department, will be speaking at the Defense Research Institute’s (DRI) 37th Annual Employment and Labor Law Seminar being held in Scottsdale, Arizona from May 7-9, 2014. On May 7, 2014 at 3:00 pm, Mr. DeBlasio will be presenting on “Making the Most of the Plaintiff- Employee Deposition.” With the majority of employment law cases being resolved prior to trial, taking the plaintiff’s deposition is one of the most critical events. At Mr. DeBlasio’s program, you will learn how to develop a deposition strategy, including the most effective way to get the answers you need.

For more information or to register for this event, please click here.

STATE OF EMERGENCY! New Jersey Bill Seeks to Protect Employees In Weather Related States of Emergency

March 18, 2014 | Comments Off
Posted by Ryan Carlson

We can all agree that New Jersey had a rough winter.  This past winter undoubtedly hampered employee commutes and impacted overall productivity at many workplaces.  Employers also had to make difficult decisions regarding whether or not to open or close the business and if the business is open, what to do with employees who refuse to commute to work under the inclement weather conditions (i.e., charge the employee an earned paid or unpaid sick day, vacation day, or other leave, or count it as an unexcused absence).  Likewise, employees made difficult choices concerning whether to commute to work or risk the loss of paid or unpaid leave.

Recently, Senator Peter J. Barnes III (D-Middlesex) introduced a bill to the Senate Labor Committee that hopes to answer some of the questions that employers and employees face during states of emergency.  According to the bill, employers would be prohibited from requiring employees to use any sick, vacation, personal days, or other form of leave of absence that is paid or unpaid during a state of emergency. Employers would also be prohibited from taking adverse action against an employee who is unable to come to work during a state of emergency.  The bill, however, exempts public safety employees from these requirements such as police, fire departments, and emergency medical service personnel. Employers who violate the bill may also be subject to a $5000 penalty for the first offense and a $10,000 penalty for each additional offense.

The bill defines a state of emergency as a natural or man-made disaster or emergency in which a state of emergency is declared by the Governor or by a municipal emergency management coordinator. The Governor typically declares a state of emergency when he believes that a disaster will be severe enough to require state aid to supplement local resources in preventing or alleviating damages, loss, hardship or suffering.

While the bill does assist employers and employees with making objective decisions when facing states of emergency, it is unclear what impact the bill will have on small businesses that rely on a handful of key employees to help run the business.  Additionally, many businesses in today’s digital age provide employees with the alternative of working at home during states of emergency.  It is also unclear how the bill’s requirements will apply to employers and employees under these circumstances. These concerns should be addressed as the bill progresses.  We will continue to monitor this legislation.

Please contact us for more information or assistance.

New Jersey Enacts Pregnancy Discrimination And Accommodation Law Effective Immediately

February 10, 2014 | Comments Off
Posted by Ryan Carlson

On January 21, 2014, Governor Chris Christie signed into law an amendment to the New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-12, prohibiting employers who know or should know that an employee is pregnant or recovering from a pregnancy from discriminating against the employee in her terms and conditions of employment.  The law is effective immediately. Read more

January 6th Deadline For Employers To Comply With Gender Equity Notice And Posting Requirements

January 6, 2014 | Comments Off
Posted by Saranne E. Weimer

Beginning Monday, January 6, 2014, employers with fifty (50) or more employees are required to comply with the New Jersey Gender Equity posting and notice requirements.  The New Jersey law, passed in September of 2012, requires that all covered employers (1) post a notice regarding gender equity in a conspicuous place accessible by all employees, (2) provide a copy of the notice to all employees annually, and (3) receive a signed acknowledgment from the employees each year. Read more

Update: Jersey City Sick Leave Ordinance Posters Now Available For Employers

December 10, 2013 | Comments Off
Posted by Ryan Carlson

On September 25, 2013, Jersey City passed Ordinance Number 13-097, requiring that all Jersey City businesses provide paid sick leave to employees with 10 or more employees. Businesses with less than ten employees must provide unpaid sick leave. Read more

Joseph C. DeBlasio, Esq. and Sabrina Sandhu To Speak at Upcoming Seminar “Workplace Investigations in New Jersey”

December 2, 2013 | Comments Off
Posted by Joseph C. DeBlasio

Joseph C. DeBlasio, Esq., co-chair of the Labor & Employment Practice Area at Giordano, Halleran & Ciesla, and Sabrina Sandhu, an associate in the practice group, will speak at the “Workplace Investigations in New Jersey” Seminar being held on Friday, February 28, 2014 from 9:00 am to 4:30 pm at the Wyndham Hotel in Mount Laurel.

To learn more, Click Here.

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