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.

Holiday Pay

November 19, 2015 | Comments Off
Posted by Ari Burd

With the holidays fast approaching, a familiar question received by our office from employers is “must I pay my employees holiday pay?”  The answer to this question in New Jersey is no.  New Jersey employers are only required to pay employees for hours actually worked.  No pay is required to an employee who is given the day off for a holiday.  Moreover, an employer is under no duty to provide their employees premium pay when working on a holiday.   Typically, the only time an employer must pay an employee a rate that exceeds their normal rate is when the employee works in excess of 40 hours or if the employer has agreed to provide such benefits within a contract or an employee handbook.

Of course just because an employer is not obligated to provide holiday pay does not mean they should not consider doing so.  Many employers throughout New Jersey offer holiday pay despite the fact that they are not legally bound to do so.  It is up to each individual employer to weigh the cost/benefit in doing so.

NLRB Decision to Have Wide Ranging Effect on Franchises & Companies using Staffing Agencies

August 28, 2015 | Comments Off
Posted by Ari Burd

The National Labor Relations Board ruled yesterday that franchisors and companies using staffing agencies can be considered joint employers and, therefore, are jointly liable for labor violations.  The decision will potentially have major ramifications for franchises and could sabotage efforts by employers using staffing agencies to avoid the health care requirements of the Affordable Care Act. Read more

NJ Supreme Court Upholds Whistleblower Protections For ”Watchdog” Employees

July 16, 2015 | Comments Off
Posted by Ari Burd

Co-Authored By Jeri L. Abrams

By a 5-0 decision, the NJ Supreme Court has ruled that all employees, including “watchdog” employees, are entitled to whistleblower protection under the New Jersey Conscientious Employee Protection Act (CEPA).  Under a previous Supreme Court decision, some defendant employers successfully argued that an employee cannot claim whistleblower protection if the employee merely blew the whistle in the ordinary course of his or her regular job duties.  By way of example, under this line of earlier reasoning, the chief auditor of a company could not claim whistleblower protection if he or she was fired in retaliation for detecting and reporting theft because identifying such theft is part of the auditor’s job duties.  Clearly aware of the problems created by such a loophole, the Supreme Court’s decision in Lippman v. Ethicon, Inc. has made clear that the nature of an employee’s position and duties cannot bar that employee from the protections afforded by CEPA. Read more

GH&C Alert: Supreme Court Decision Upholds Key Portion Of The Affordable Care Act (Obamacare)

June 25, 2015 | Comments Off
Posted by Ari Burd

In a 6-3 decision, the United States Supreme Court has overruled the lower court decision in King vs. Burwell which reviewed key portions of the Affordable Care Act (”ACA”). The Court’s ruling in the matter upheld the validity of the federally-funded insurance exchanges and insures that the penalty provisions of the ACA will remain in force and applicable to employers. Specifically, the US Supreme Court has ruled that US government can continue subsidizing insurance in states that have not set up their own insurance exchanges. Had the Court ruled against such a practice, individuals in most states would have been unable to obtain subsidized insurance, a pre-requisite in order for the penalty provisions of the ACA to apply to employers. Given the Court’s ruling, employers must meet their ACA obligations or risk significant penalties in 2015 and beyond.

Pre-Employment Drug Testing in NJ

May 27, 2015 | Comments Off
Posted by Ari Burd

Unlike many states, New Jersey has few regulations regarding the drug testing of job applicants.  A private employer may require pre-employment drug testing.  The applicant should obviously sign a HIPAA compliant consent before undergoing the test.   Job offers may be conditioned on applicant’s passing a drug test, regardless of whether the position is safety-sensitive.  Unless the position is in the security field, the employer cannot deduct the cost of the test from the employee’s pay.  Employers should use the least intrusive testing measures and maintain confidentiality of results.   For more information about drug testing applicants and what other steps employers must take, please contact Ari G. Burd, Esq.

Retention of Employment Records in NJ

March 24, 2015 | Comments Off
Posted by Ari Burd

Federal and State law dictate how long employers must retain certain employee related records.  For instance, Form I-9 should be retained for either three (3) years after the date of hire or for one (1) year after employment is terminated, whichever is later.  Federal laws such as Title VII of the Civil Rights Act of 1964 and Americans with Disabilities Act (ADA) also require employers to maintain certain pre-employment records for no less than two years.  Finally, New Jersey law also comes into play with regard to record retention.  At a minimum, New Jersey employers should maintain documents comprising the employee personnel file for a period of not less than two years after separation of employment.

Of course knowing the minimum retention requirements is only half the battle.   Some employers would be best served by retaining certain documents as long as possible. Others, however, might wish to consider scheduling the destruction of certain types of records as soon as the minimum retention period has concluded.  For more information about your company’s obligations under the law and tips for minimizing liability, please contact Ari G. Burd or Jay S. Becker at the GHC Labor & Employment Department.

Pre-Screening Job Applicants

March 18, 2015 | Comments Off
Posted by Ari Burd

As I noted in a recent blog post, New Jersey now prevents employers from asking applicants about criminal convictions in the initial job application and interview.  Certain municipalities even have their own rules on the subject.  However, this is only one of many laws pertinent to pre-screening job applicants that employers must be wary of.  Employers must abide by the Fair Credit and Reporting Act if they intend to perform a criminal or credit background check.   This means obtaining the applicant’s permission before performing the check, letting the applicant know if the employer intends to disqualify them based on something in the background check, etc.  Additionally, employers risk running afoul of the Equal Employment Opportunity Commission if they automatically disqualify all applicants with criminal convictions.  To avoid these pitfalls and for more information about what is and is not permissible under the law, please contact the GH&C Labor and Employment Dept.

Are You Prepared for the Affordable Care Act?

March 10, 2015 | Comments Off
Posted by Ari Burd

If a business employs 50 or more employees, it has until January 1, 2016 to get ready to meet the requirements of the Affordable Care Act/Obama Care.  If a business has a 100 or more employee, it is already subject to the Affordable Care Act.  If you want to know what this means for your business or for your business clients, come out and join us for the free “The Implications of the ACA on Small Business” seminar being held at our office on March 12, 2015 at 6pm.  More information available here.

NJ Court Further Limits Ability To Classify Workers As Independent Contractors

February 18, 2015 | Comments Off
Posted by Ari Burd

A recent ruling by the New Jersey Supreme Court in the matter Hargrove v. Sleepy’s, LLC has held that the strict “ABC” test must be used for determining whether an individual is an employee or independent contractor for wage and hour purposes. This is bad news for NJ employers who will now find it even harder to effectively classify workers as independent contractors. As a result of this ruling, employers should expect an increase in claims alleging that they have failed to properly pay wages and overtime to individuals misclassified as independent contractors. Read more

NJ Supreme Court Strengthens Defenses Available to NJ Employers In Sexual Harassment Actions

February 13, 2015 | Comments Off
Posted by Ari Burd

In a landmark decision that will have profound and beneficial effects on New Jersey employers, the New Jersey Supreme Court’s decision in Aguas v. State of New Jersey has adopted the two part analysis set forth by the US Supreme Court in Burlington Industries v. Ellerth, 524 U.S. 742, (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) when reviewing sexual harassment/hostile workplace claims. As a result, employers now, more than ever, may rely upon their anti-harassment policies as an affirmative defense to claims of negligence or vicarious liability brought by employees under New Jersey’s Law Against Discrimination. Read more

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