State snapshotKey considerations
Which issues would you most highlight to someone new to your state?
New Jersey recently enacted a comprehensive equal pay law, the Diane B. Allen Equal Pay Act, which amends the Law Against Discrimination by making it unlawful for an employer to compensate an employee who is a member of a protected class less than employees who are not members of that protected class for “substantially similar work, when viewed as a composite of skill, effort, and responsibility.” The act provides that when grouping employees performing “substantially similar work,” employers must review workers in “all of an employer’s operations or facilities,” regardless of whether they are located in New Jersey. Employers can prove a compensation differential is lawful by showing it is due to a seniority system, merit system, or by demonstrating that the differential is based on legitimate, bona fide factors other than the employee’s membership in a protected class that are job-related and based on a business necessity. The act also prohibits employers from retaliating against workers for discussing pay and benefits with co-workers. In addition, employers are barred from reducing any employee’s compensation to remedy a pay gap.
New Jersey’s newly enacted paid sick and safe leave law requires all New Jersey employers to allow employees to accrue one hour of paid sick leave for every 30 hours worked, up to a maximum of 40 hours or five days per benefit year. The law preempted the prior 13 local sick leave ordinances in New Jersey, creating one uniform mandate for employers to follow. Paid sick or safe leave can be used:
- for an employee or family member’s illness or injury;
- for a public health emergency declared by a public official;
- for medical, legal or other victim services because of domestic or sexual violence; or
- to attend an employee’s child’s school-related event.
Notably, “family member” is broadly defined to include “any other individual related by blood to the employee or whose close association with the employee is the equivalent of a family relationship.” Employers can use a paid time off policy for compliance if the leave is fully paid, accrues at a sufficient rate, and can be used for the same purposes provided by the law. The law creates a rebuttable presumption of unlawful retaliation whenever an adverse employment action is taken against an employee within 90 days of requesting or taking paid sick or safe leave. Employers must also comply with record-keeping obligations.
The New Jersey Law Against Discrimination expands beyond protected classes under federal law.
Employers should also be aware of the following laws, which are specific to New Jersey:
- Conscientious Employee Protection Act;
- Family Leave Act;
- Family Leave Insurance Law;
- Security and Financial Employment Act;
- Opportunity to Compete Act (New Jersey’s “ban-the-box”); and
- Millville Dallas Airmotive Plant Job Loss Notification Act (“New Jersey WARN Act”).
What do you consider unique to those doing business in your state?
New Jersey is one of only five states to provide compulsory temporary disability insurance benefits through the state for an employee’s own non-work-related injury, illness, or other disability, including pregnancy. New Jersey employers and employees contribute to the cost of temporary disability insurance. Alternatively, an employer may establish a private plan in lieu of state benefits. The law does not create an entitlement to leave; rather, it provides a monetary benefit to employees who may be entitled to leave as an accommodation under the Americans with Disabilities Act or the New Jersey Law Against Discrimination.
Complementing New Jersey’s statutory disability program, Family Leave Insurance benefits can partially replace wages of workers who need to care for a seriously ill or injured family member, or bond with a newborn or newly adopted child. Eligible employees can collect these benefits for a maximum of six weeks in a 12-month period. The family leave program is 100% funded by employee payroll deductions. This is a monetary benefit and not an entitlement to a leave of absence. Eligible employees may be entitled to leave under the federal Family and Medical Leave Act or the New Jersey Family Leave Act.
The Conscientious Employee Protection Act is one of the most protective whistleblower statutes in the country. New Jersey employers cannot against an employee who objects or refuses to participate in any activity, policy, or practice that the employee “reasonably believes” is in violation of a law, rule, or regulation, is fraudulent or criminal, or is against public policy (N.J.S.A. §§ 34:19-1 – 34:19-8).
There is no requirement under New Jersey law to provide employees with breaks or a lunch period.However, if an employee is required to stay on the employer’s premises or work during a meal period, the worker must be paid for the meal period (N.J.A.C. § 12:56-5.2).
Without a written policy or agreement, New Jersey does not require employers to pay for accrued but unused vacation, holiday, or sick leave upon termination. Employers should specify if accrued paid time off will be forfeited upon separation of employment in their written policies.
To avoid creating an implied and enforceable contract, employee handbooks, manuals, and codes of conduct must contain a clear and prominent disclaimer that employment is at-will (Woolley v. Hoffmann-La Roche, Inc. 99 N.J. 302, modified, 101 N.J. 10 (1985)). The at-will employment disclaimer should be on the first substantive page of any document, be set off in a separate paragraph, and be introduced by a bolded or highlighted title or all capital letters.
Is there any general advice you would give in the labor/employment area?
Employers should be cognizant of the state’s increasing focus equal pay issues. The recently enacted Diane B. Allen Equal Pay Act is being heralded as one of the most expansive equal pay laws in the country. Therefore, New Jersey employers should conduct a pay audit and review their current compensation structure to confirm compliance with the act.
Although New Jersey does not require employers to conduct anti-harassment training, in the wake of the #MeToo movement, training is encouraged and is in fact necessary to establish the Ellerth/Farragher affirmative defense to hostile work environment claims (Aguas v. State, 220 N.J. 494 (2015)).
In May 2018 New Jersey Governor Phil Murphy established a task force to investigate potential misclassification of employees as independent contractors and it is predicted that an uptick in enforcement will follow. Therefore, New Jersey employers should review all workers who have been classified as independent contractors and analyze the nature of the work performed and extent of control exercised by the employer. Employers should be cognizant that no safe harbor provisions exist under New Jersey law for unintentional misclassification of workers as independent contractors.
New Jersey employers should be mindful of the recently enacted Earned Sick Leave Law, which provides up to 40 hours of paid sick and safe leave per year, and may need to update their paid time off or sick and safe leave policies to ensure compliance.Emerging issues
What are the emerging trends in employment law in your state, including the interplay with other areas of law, such as firearms legislation, legalization of marijuana and privacy?
New Jersey Governor Phil Murphy issued an executive order expanding the number of eligible conditions under its medical marijuana law, the Compassionate Use Medical Marijuana Act, and is moving towards the legalization of recreational marijuana use. Currently, employers are not required to accommodate medical use in the workplace (N.J.S.A. § 24:6I-14). However, it is predicted that Murphy may expand protections for medical marijuana users, which could result in employment protections.Proposals for reform
Are there any noteworthy proposals for reform in your state?
- The New Jersey legislature recently introduced a bill seeking to gradually increase New Jersey’s minimum wage to $15 an hour by 2024.
- Senate Majority Leader Loretta Weinberg introduced a bill that would make it unlawful for employers to include a non-disclosure or confidentiality provision in an agreement with an employee claiming to be the victim of “harassment, discrimination or retaliation” in the workplace.
- The New Jersey legislature is considering a bill that would require all New Jersey employers to utilize the federal E-Verify system to check the employment eligibility of each new hire.
- There is currently a bill in the Assembly that prohibits employers from obtaining, requiring, or discriminating against current or prospective employees on the basis of their credit history, credit score, account balances, or payment history contained in a credit report.
- In line with the state’s focus on closing the gender wage gap, the New Jersey legislature has attempted to pass legislation preventing employers from inquiring about an applicant’s wage or salary history.
Employment relationshipState-specific laws
What state-specific laws govern the employment relationship?
New Jersey has several statutes regulating the employment relationship:
- Law Against Discrimination;
- Discrimination in Wages Law;
- Equal Pay Act;
- Conscientious Employee Protection Act;
- Security and Financial Empowerment Act;
- Earned Sick Leave Law;
- Temporary Disability Benefits Law;
- Family Leave Act;
- Family Leave Insurance Law;
- Wage and Hour Law;
- Domestic Partnership Act;
- Wage Payment Act;
- Public Employee’s Occupational Safety and Health Law;
- Smokers’ Rights Law;
- Genetic Privacy Act;
- Fair Credit Reporting Act;
- Prevailing Wage Act;
- Emergency Responder Leave Law;
- Millville Dallas Airmotive Plant Job Loss Notification Act (“the New Jersey WARN Act”); and
- Opportunity to Compete Act.
Who do these cover, including categories of workers?
The following laws apply to all private employers in New Jersey, regardless of size:
- Law Against Discrimination (N.J.S.A. § 10:5-5(e)). This has been interpreted to apply to non-employees, such as independent contractors, in limited circumstances (N.J.S.A. § 10:5-12(1));
- Discrimination in Wages Law (N.J.S.A. § 34:11-56.1(b));
- Equal Pay Act (N.J.S.A. § 10:5-12);
- Conscientious Employee Protection Act (N.J.S.A. § 34:19-2(a));
- Earned Sick Leave Law (N.J.S.A. § 34:11D-1);
- Temporary Disability Benefits Law and Family Leave Insurance Law (N.J.S.A. § 43:21-27(a)(1));
- Domestic Partnership Act (N.J.S.A. § 26:8A-1);
- Wage Payment Law (N.J.S.A. § 34:11-4.1 et seq.);
- Wage and Hour Law (N.J.S.A. § 34:11-56a et seq.);
- Smokers’ Rights Law (N.J.S.A. § 34:6B-1);
- Genetic Privacy Act (N.J.S.A. § 10:5-45);
- Fair Credit Reporting Act (N.J.S.A. § 56:11-30); and
- Emergency Responder Leave Law (N.J.S.A. § 40A:14-214(b)).
The following laws apply to covered private employers in New Jersey as described below:
- The Family Leave Act covers employers that employ 50 or more individuals anywhere worldwide for 20 or more weeks during the current or preceding calendar year (N.J.S.A. § 34:11B-3(f)(3));
- The Security and Financial Empowerment Act covers employers with 25 or more employees (N.J.S.A. § 34:11C-2);
- The Millville Dallas Airmotive Plant Job Loss Notification Act applies to businesses that employ 100 or more full-time employees in a single establishment (N.J.S.A. § 34:21-2(a)); and
- The Opportunity to Compete Act covers employers with 15 or more employees over 20 calendar weeks, including job placement and referral agencies and other employment agencies (N.J.S.A. § 34:6B-13).
Are there state-specific rules regarding employee/contractor misclassification?
The New Jersey Supreme Court has adopted the “ABC test” to determine whether a worker is an independent contractor under the Wage Payment Law and the Wage and Hour Law (Hargrove v. Sleepy’s LLC, 220 N.J. 289, 316 (2015)). Under the ABC test, an employer is required to show that an individual providing services:
- (A) is free from the company’s control in performing the services;
- (B) performs work outside the usual course of the company’s business or outside the company’s place of business; and
- (C) is engaged in an independently established business.
Must an employment contract be in writing?
No. Employment contracts can be written or oral agreements. Although New Jersey employees are generally deemed to be employed at-will in the absence of an agreement to the contrary, prudent employers typically confirm the at-will status of the employment relationship in writing.
Are any terms implied into employment contracts?
New Jersey employees owe a duty of loyalty to their employers. In addition, there is a covenant of good faith and fair dealing imposed on employees who enter into written agreements with their employers.
Are mandatory arbitration agreements enforceable?
Yes. Mandatory arbitration agreements of employment-related claims, including statutory claims for discrimination, are enforceable in New Jersey. New Jersey employers can require binding arbitration as a condition of employment or as a condition of continued employment.
New Jersey employers interested in resolving employment-related disputes through mutual arbitration should be cognizant of the following guidelines:
- In order to be enforceable, arbitration agreements must be the product of mutual assent and must be entered into knowingly and voluntarily after receiving notice. Although an actual signature is not required to enforce an arbitration agreement, an employee must take some affirmative action to otherwise explicitly indicate their agreement to it (Leodori v. CIGNA Corp., 175 N.J. 293, 303 (2003) and Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430, 447 (2014)). A New Jersey appeals court recently held that requiring employees to merely “acknowledge” receipt of the arbitration agreement rather than explicitly click to “agree” to be bound by it was insufficient to compel arbitration of an employee’s religious discrimination claim (Skuse v. Pfizer, Inc., No. A-3027-17T4 (App. Div. January 16, 2019) (slip op. at 3)).
- Arbitration provisions should specifically identify the types of claims covered and those excluded from arbitration, and the waiver of the right to a jury trial should be prominent (i.e., using a bold and capitalized font).
- Arbitration agreements shortening the statute of limitations of state employment laws are unconscionable and unenforceable (Rodriguez v. Raymours Furniture Co., 2016 WL 3263896, at *13 (N.J. June 15, 2016)).
- Arbitration agreements are unenforceable if contained in an employee handbook with at will employment disclaimers. Therefore, agreements to arbitrate should be presented as standalone agreements or in the offer letter or employment contract.
How can employers make changes to existing employment agreements?
Where the employment relationship is at-will, employers can unilaterally alter the terms and conditions of employment prospectively with notice. Changes to a written employment agreement with a term of employment specified can be made through an amendment with mutual agreement between the parties.
What are the requirements relating to advertising open positions?
New Jersey employers’ advertisements for employment cannot contain a preference for or discriminate based on an individual’s protected status under the Law Against Discrimination.
New Jersey employers are prohibited from stating in any job advertisement that the employer will not consider an applicant who has been arrested for or convicted of a crime, unless the job is exempt under the law (N.J.S.A. § 34:6B-15; N.J.A.C. § 12:68-1.3).
New Jersey employers are prohibited from publishing an advertisement for a job vacancy (in print or online) stating that a job applicant must be currently employed for their application to be accepted, considered, or reviewed.Background checks What can employers do with regard to background checks and inquiries?
(a)Criminal records and arrests
Under the Opportunity to Compete Act (New Jersey’s “ban-the-box” law), covered employers cannot make verbal or written inquiries regarding an applicant’s criminal background, including an expunged criminal record, prior to the completion of the initial interview, which may be conducted in person, by telephone, or by videoconferencing, unless the applicant volunteers information about their criminal record. In addition, employers are prohibited from conducting any online search regarding an applicant’s criminal record during the initial employment application process. There are statutory exceptions to this general prohibition for certain positions or when a criminal background check is required by law (N.J.S.A. § 34:6B-14, 15).
After the initial employment application process is concluded, employers may make oral or written inquiries about an applicant’s criminal history and nothing in the law prohibits an employer from refusing to hire an individual based upon their criminal record (N.J.S.A. § 34:6B-14 and N.J.A.C. § 12:68-1.3(e)). Nevertheless, employers should familiarize themselves with the guidance issued by the Equal Employment Opportunity Commission before considering an applicant’s or employee’s arrest or criminal records to make employment decisions.
Under the Law Against Discrimination, it is unlawful to discriminate against an applicant based on either genetic information, disability, or other genetic trait, or the applicant’s refusal to submit to genetic testing or refusal to make genetic testing results available (N.J.S.A. § 10:5-5 and 10:5-12).
Under New Jersey law, employers are prohibited from making any inquiries that would reveal an applicant’s disability or health condition, or requiring an applicant to submit to a medical examination before extending an offer of employment. New Jersey law also prohibits employers from requiring a post-offer medical examination, unless the examination is part of standard hiring procedure for all newly hired employees (N.J.A.C. § 13:13-2.3, 2.4). Employers cannot use the results of a post-offer medical examination to disqualify an applicant unless the condition discovered would prevent the safe or adequate performance of the essential functions of the position, even with reasonable accommodations (N.J.A.C. § 13:13-2.8).
New Jersey employers cannot require employees or applicants to pay for medical examinations that are requested or directed by the employer (N.J.S.A. § 34:11-24.1).
In general, New Jersey employers can conduct pre-employment drug testing and may refuse to hire an applicant because of a positive pre-employment drug test. In addition, the courts have allowed drug testing of current employees in limited circumstances. For example, random drug testing is permitted only if there is a specialized need (i.e., safety-sensitive positions or highly regulated industries) (Mollo v. Passaic Valley Sewerage Comm'rs, 406 F. App’x 664, 669-70 (3rd Cir. 2011)). Employers should be aware that mandatory random drug testing by private employers could be an invasion of privacy sufficient to breach public policy under both the common law and New Jersey’s Constitution (Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 99-102, 609 A.2d 11, 19-21 (1992)). In balancing the employee’s right to privacy in off-duty conduct with the employer’s compelling interest in promoting safety, the courts will consider the nature of the employee’s job and whether there were less intrusive means available to detect drug use, such as personal observation of conduct to lead to reasonable suspicion.
Although New Jersey law authorizes the use of medical marijuana, there is no requirement that employers accommodate the use of medical marijuana in the workplace (N.J.S.A. § 24:6I-14). A federal court recently issued a narrow ruling that neither the New Jersey Compassionate Use Medical Marijuana Act nor the New Jersey Law Against Discrimination requires an employer to waive a drug test to accommodate an employee’s medical marijuana use (Cotto v. Ardagh Glass Packing, CV-18-1037 (D.N.J. August 10, 2018)). While the Cotto decision provides helpful guidance, it is an unpublished opinion and has no binding precedential impact on future New Jersey state or federal court decisions. Further, New Jersey courts have not yet addressed the issue of whether allowing an employee to use medicinal marijuana outside of work during non-work hours would be deemed a reasonable accommodation under the Law Against Discrimination.
An employer may use consumer reports and investigative consumer reports for employment purposes under the Fair Credit Reporting Act (N.J.S.A. § 56:11-31(a)(3)(b)). Employers must provide notice to employees and obtain written authorization from an employee before obtaining a consumer report. Before taking an adverse action based on a credit report, employers must provide applicants with a copy of the report and written notice describing the applicant’s rights under both the federal Fair Credit Reporting Act and the New Jersey Fair Credit Reporting Act (N.J.S.A. § 56:11-31(e)).
An employer may not inquire about an applicant’s immigration status, other than whether they are legally authorized to work in the United States. New Jersey does not mandate a particular form of employment eligibility verification.
The Social Media Act prohibits employers from requesting the username, password, or other information allowing access to current or prospective employees’ personal social media accounts. Employers may access and use social media information about an applicant or employee in the public domain (N.J.S.A. § 34:6B-6-10). However, employers should be cognizant that doing so can expose an employer to liability under the state’s anti-discrimination law if the social media search reveals an applicant’s protected characteristic (such as disability) and the employer relies on such information in determining whether to hire the applicant.
Employers generally cannot request or require applicants to take a lie detector test as a condition of employment or continued employment (N.J.S.A. § 2C:40A-1).
Wage and hourPay
What are the main sources of wage and hour laws in your state?
The main sources of wage and hour laws in New Jersey are the Wage Payment Law (N.J.S.A. § 34:11-4.1 et seq.) and the Wage and Hour Law (N.J.S.A. § 34:11-56a et seq.). The Wage Payment Law generally sets forth requirements regarding the timing, manner, and mode of paying wages, including restrictions on deductions. The Wage and Hour Law generally sets forth requirements regarding minimum wage and overtime.
What is the minimum hourly wage?
Effective January 1, 2019, New Jersey’s minimum hourly wage is $8.85 per hour. New Jersey’s minimum wage is governed by a state constitutional amendment, which ties increases to the federal consumer price index.
What are the rules applicable to final pay and deductions from wages?
Irrespective of whether an employee resigns voluntarily or is discharged, the employer must pay all earned wages to the departing employee by no later than the next regular payday for the pay period during which the employee’s termination takes place (N.J.S.A. § 34:11-4.3).
Deductions from wages are prohibited unless expressly permitted by law or collective bargaining agreement, or authorized in writing by the employee for one of the following permissible purposes:
- employee welfare, insurance, hospitalization, medical, surgical, pension, retirement, and profit-sharing plans;
- government bonds, company-operated thrift plans;
- purchase of securities;
- payment into employee personal savings accounts (e.g., to a credit union, savings fund society, savings and loan, or building and loan association);
- payments to banks for Christmas, vacation, or other savings funds;
- payments for company products;
- safety equipment;
- purchase of government bonds;
- correcting payroll errors;
- union dues;
- political committees; and
- similar purposes authorized by the New Jersey Department of Labor and Workforce Development commissioner (N.J.S.A. § 34:11-4.4).
What are the requirements for meal and rest breaks?
For adults New Jersey law does not impose requirements on employers regarding adult employee meal or rest breaks.
New Jersey employers are bound by certain requirements with regard to youth employees. Under New Jersey law, an employer may not permit a minor under the age of 18 to work for more than five continuous hours without a lunch break of at least 30 minutes. Moreover, any break of less than 30 minutes does not count as an interruption of work for purposes of determining whether the employee has worked for more than five continuous hours (N.J.S.A. § 34:2-21.4).
What are the maximum hour rules?
New Jersey law generally does not impose a limit on the number of hours an employer may require an adult employee to work. An exception exists that absent an “unforeseeable emergent circumstance,” a healthcare facility may not require its non-physician hourly employees who are “involved in direct patient care activities or clinical services” to work more than 40 hours per week (N.J.S.A. § 34:11-56a31 et seq).
How should overtime be calculated?
For non-exempt employees, hours in excess of 40 in any work week are considered overtime and must be compensated at 1.5 times the employee’s regular rate of pay (N.J.S.A. § 34:11-56a4; N.J.A.C. § 12:56-6.1).
What exemptions are there from overtime?
The New Jersey Department of Labor and Workforce Development has adopted the overtime exceptions recognized by the U.S. Department of Labor for executive, administrative, professional, and outside sales employees (see N.J.A.C. § 12:56-7.2).
Under New Jersey law, the administrative exemption also includes an employee whose primary duty consists of sales activity and who receives at least 50% of their total compensation from commission and a total compensation of not less than $400 per week (see N.J.A.C. § 12:56-7.2(c)).
New Jersey law also exempts the following people from overtime requirements:
- farm laborers;
- hotel employees;
- employees of passenger bus companies;
- limousine drivers employed by limousine companies; and
- employees who raise or care for livestock (see N.J.S.A. § 34:11-56a4).
What payroll and payment records must be maintained?
New Jersey law does not require employers to include specific information on pay stubs.
New Jersey law requires every employer to maintain certain records for each employee (N.J.S.A. § 12:56-4.1). Those records must include:
- the name and address of the employee;
- the date of birth if the employee is under the age of 18;
- the total hours that the employee worked each day and each work week; and
- the employee’s earnings including the regular hourly rate, gross to net amounts with itemized deductions, and the basis on which wages are paid.
The records must be kept for six years at the place of employment or in a central office in New Jersey (N.J.A.C. §§ 12:56-4.4 and 12:56-4.5(a)).
Discrimination, harassment and family leaveWhat is the state law in relation to: Protected categories
The New Jersey Law Against Discrimination (N.J.S.A. § 10:5-12 et seq.) (NJLAD) generally prohibits workplace discrimination on the basis of age. While the federal Age Discrimination in Employment Act only protects individuals 40 years of age and older, the NJLAD prohibits discrimination on the basis of age of anyone above the age of 18, including discrimination against an individual for being too old or too young. However, the law does not provide protection with regard to hiring and promotions of individuals over the age of 70.
The NJLAD prohibits workplace discrimination on the basis of race and color (N.J.S.A. § 10:5-12 et seq).
The NJLAD prohibits workplace discrimination on the basis of an actual or perceived disability (N.J.S.A. § 10:5-12 et seq). Employers should be aware that New Jersey law defines “disability” much more broadly than federal law.
The NJLAD prohibits workplace discrimination on the basis of sex and “gender identity or expression” (N.J.S.A. § 10:5-12(a)).
The NJLAD prohibits workplace discrimination on the basis of “affectional or sexual orientation” (N.J.S.A. § 10:5-12(a)).
The NJLAD prohibits workplace discrimination on the basis of religion or creed (N.J.S.A. § 10:5-12(a)). The law expressly prohibits an employer from imposing terms or conditions that would require an employee to “violate or forego a sincerely held religious practice or religious observance,” such as “the observance of any particular day or days” as a “Sabbath or other holy day,” unless the employer demonstrates that it is “unable to reasonably accommodate the employee's religious observance or practice without undue hardship” on the business (N.J.S.A. § 10:5-12(q)(1)).
Please refer to the Section (c) (above) regarding the NJLAD’s prohibition against workplace discrimination on the basis of an actual or perceived disability.
The law also bars discrimination on the basis of “genetic information,” “atypical hereditary cellular or blood trait,” “refusal to submit to a genetic test,” or refusal to “make available the results of a genetic test” (N.J.S.A. § 10:5-12(a)).
In addition to the protections set forth above, the NJLAD prohibits workplace discrimination on the basis of national origin, nationality, ancestry, marital status, civil union status, domestic partnership status, pregnancy or breastfeeding, or because of service in the Armed Forces of the United States (N.J.S.A. § 10:5-12).Harassment
What is the state law in relation to harassment?
New Jersey law prohibits harassment on the basis of protected characteristics identified in the NJLAD (see N.J.S.A. § 10:5-12).
The NJLAD prohibits quid pro quo harassment and hostile work environment harassment:
- “Quid pro quo harassment” occurs when an employer attempts to require an employee to submit to sexual demands as a condition of employment; and
- “Hostile work environment harassment” occurs when, because of a protected characteristic, an employee is subjected to conduct that is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
New Jersey courts have adopted the Faragher/Ellerth affirmative defense to sexual harassment claims that federal courts have recognized for employers. This defense applies in cases in which an employee alleging sexual harassment by a supervisor unreasonably failed to invoke the protections of an effective anti-discrimination policy.Family and medical leave
What is the state law in relation to family and medical leave?
The New Jersey Family Medical Leave Act (NJFLA) provides eligible employees with up to 12 work weeks of unpaid, job-protected leave in a 24-month period of time for the birth or adoption of a child or to care for the employee’s spouse, civil union partner, child, parent, or parent-in-law with a serious health condition. Unlike the , the NJFLA does not apply to leave due to an employee’s own serious health condition. The NJFLA covers New Jersey employers that employ 50 or more employees anywhere worldwide for 20 or more weeks during the current or preceding calendar year. To be eligible for this leave, an employee must have worked for the covered employer for 12 months and 1,000 hours in the 12 months before the leave. When an employee takes a leave for a purpose covered by both the FMLA and the NJFLA, the leave counts simultaneously against the employee’s entitlement under both laws.
Under the New Jersey Family Leave Insurance Law (NJFLI), employees may be eligible to receive up to six weeks of partial wage replacement benefits from the state of New Jersey in any 12-month period while they are absent from work to care for a seriously ill or injured family member, or to bond with a minor child within one year of the birth or placement of the child. To be eligible for NJFLI benefits, employees must have paid into the program through their employment and meet minimum gross earnings requirements, which change year to year. As of January 2019, an employee must have worked at least 20 weeks earning $172 or more per week, or earned at least $8,600 in the past 12 months.
Privacy in the workplacePrivacy and monitoring
What are employees’ rights with regard to privacy and monitoring?
New Jersey law generally permits an employer to review and monitor employee use of the employer’s electronic devices and systems, provided that the employer adequately places employees on notice that they have no reasonable expectation of privacy in communications sent or received via those devices and systems. This notice is often provided in employee handbooks and, ideally, in separate acknowledgments signed by employees.
The Identity Theft Prevention Act imposes obligations on employers with respect to the maintenance and destruction of documents containing personal information. The law also requires employers to notify individuals promptly in the event of a breach of security of their personal information and restricts the use of Social Security numbers (N.J.S.A. § 56:11-44).
A New Jersey employer may use video cameras for security purposes in the workplace, provided they do not capture the inside of bathrooms, lockers rooms, or other private areas.
Regarding audio recording, New Jersey is a “one party consent” state, which means that it is a crime to record a conversation without the consent of at least one party to the communication (N.J.S.A. § 2A:156A-4(d)).
Are there state rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?
The Social Media Act generally prohibits an employer from requiring a job applicant or employee to disclose a personal username or password, or to otherwise provide the employer with access to restricted social media content (N.J.S.A. § 34:6B-6). However, the statute does not prevent an employer from accessing online information about a job applicant or employee that is available in the public domain. The statute also contains exceptions for workplace investigations conducted by an employer based on specific information regarding employee workplace misconduct or the unauthorized transfer of confidential or proprietary information or financial data (N.J.S.A. § 34:6B-10). Notwithstanding these exceptions, employers should always exercise caution in viewing online information about an applicant or employee, because doing so could reveal their protected characteristics (e.g., a disability), thereby rendering the employer vulnerable to a potential discrimination claim in the event the employer subsequently takes adverse action against the individual.Bring your own device
What is the latest position in relation to bring your own device?
No New Jersey statute expressly addresses “bring your own device” policies. However, permitting non-exempt employees to use their own devices to conduct employer business creates potential risks. One risk is potential off-the-clock claims by non-exempt employees who allege that they checked their work e-mails or otherwise performed work for the employer outside of their regular (compensated) work hours. Another risk is potential jeopardy to the employer’s confidential and proprietary information. An employer that permits personal devices to be used for work should have a written policy addressing these risks.Off-duty
To what extent can employers regulate off-duty conduct?
An employer can generally take adverse action against an employee for off-duty conduct that impacts the workplace, such as harassment of a co-worker outside of work hours.
The Smoking Law prohibits employers from refusing to hire and from taking adverse action against an individual because they do or do not “smoke or use other tobacco products” (N.J.S.A. § 34:6B-1).Gun rights
Are there state rules protecting gun rights in the employment context?
New Jersey has no statutory guns-at-work laws covering private employers. Therefore, New Jersey employers can restrict employees from bringing concealed firearms to work, including company-owned parking lots.
Trade secrets and restrictive covenantsIntellectual Property
Who owns IP rights created by employees during the course of their employment?
In New Jersey, intellectual property created by an employee in the scope and within the course of their employment is generally deemed to be the property of the employer.
However, inventions created by an employee entirely on their own time, without using the employer's “equipment, supplies, facilities or information,” that do not relate to the employer's business (or “actual or demonstrably anticipated research or development”) and do not “result from any work performed by the employee on behalf of the employer,” are the property of the employee. In fact, any agreement purporting to assign such inventions to the employer is unenforceable (N.J.S.A. § 34:1B-265).Restrictive covenants
What types of restrictive covenants are recognized and enforceable?
In New Jersey, reasonable post-employment restrictive covenants are generally enforceable to the extent that they:
- protect the employer’s legitimate interests;
- do not impose an undue hardship on the employee; and
- do not cause injury to the public.
An employer’s protectable legitimate interests include:
- confidential business information;
- goodwill; and
Provided they are reasonable in scope and duration, the following types of restrictive covenants are generally enforceable in New Jersey:
- non-competition agreements;
- non-solicitation of customers agreements;
- non-solicitation of employees agreements;
- non-disclosure and confidentiality agreements; and
- assignment of inventions agreements.
Are there any special rules on non-competes for particular classes of employee?
Under New Jersey law, special industry-specific rules restricting the use of non-competes apply to licensed psychologists (N.J.A.C. § 13:42-10.16) and attorneys (N.J. RPC 5.6).
Labor relationsRight to work
Is the state a “right to work” state?
New Jersey is not a right to work state.Unions and layoffs
Is the state (or a particular area) known to be heavily unionized?
Relative to most other states, New Jersey is known to be heavily unionized. New Jersey’s union membership rate is 16.2% of its total workforce according to the “Union Members Summary” issued by the Bureau of Labor Statistics on January 19, 2018. New Jersey is the sixth most unionized state in the country and has approximately 600,000 union members.
What rules apply to layoffs? Are there particular rules for plant closures/mass layoffs?
Like many states, New Jersey has its own “mini-WARN” Act. The Millville Dallas Airmotive Plant Job Loss Notification Act requires covered employers to provide written notice 60 days before terminating 50 or more full-time employees within a 30-day period. If the termination is the result of a mass layoff, the law applies only if the affected employees represent at least one-third of the workforce (N.J.S.A. §§ 34:21-1 and 34:21-2).
Discipline and terminationState procedures
Are there state-specific laws on the procedures employers must follow with regard to discipline and grievance procedures?
New Jersey has no state-specific laws regarding discipline and grievance procedures.At-will or notice
At-will status and/or notice period?
New Jersey is an employment at-will state. As a result, either the employee or the employer may end the employment relationship at any time for no reason or any lawful reason, with or without cause, and with or without notice, subject to any agreed-upon contractual limitations.
What restrictions apply to the above?
Notwithstanding an employee’s at-will status, an employer generally may not terminate their employment:
- based on the employee’s membership in a protected class (i.e., for a discriminatory reason);
- when doing so would violate a clear mandate of public policy; or
- because the employee disclosed or threatened to disclose conduct of the employer that the employee reasonably believed to be unlawful or against public policy or because the employee refused to participate in such conduct.
Are there state-specific rules on when final paychecks are due after termination?
Under New Jersey law, all wages are due to a departing employee by no later than the regular payday for the pay period during which the employee’s termination takes place (N.J.S.A. § 34:11-4.3).