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 (NJLAD).
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.
New Jersey employers are prohibited from publishing any advertisement for a job vacancy (in print or online) discouraging people with disabilities from applying for a job for which they are qualified, despite a particular disability or which contains the words “able-bodied persons wanted,” or their equivalent (N.J.A.C. § 13:13-2.1).
New Jersey employers with five or more employees working in Jersey City are required to include salary ranges in job postings.Background checks
(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 videoconference, unless the applicant volunteers information about his or her criminal record. In addition, employers are prohibited from conducting any online search regarding an applicant’s criminal record during the initial employment application process, subject to certain statutory exceptions. (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 his or her criminal record (N.J.S.A. § 34:6B-14 and N.J.A.C. § 12:68-1.3(e)).
Under the NJLAD, 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).
The Jake Honig Compassionate Use Medical Cannabis Act added employment protections for qualifying medical marijuana users. Employers are prohibited from taking adverse employment action against an employee or applicant “based solely on the employee’s status” as a registered medical cannabis patient.
Under CREAMMA, employees and job applicants who lawfully use recreational marijuana off premises and during non-working hours will be expressly protected from discrimination. Employers may conduct workplace drug testing, but such testing must include scientifically reliable objective testing methods, such as blood or urine, and must include a physical examination to determine the employee’s level of impairment. The physical examination must be conducted by a workplace impairment recognition expert (WIRE) certified to opine on the employee’s state of impairment by the NJ CRC. The WIRE certification program is temporarily on hold until the NJ CRC adopts those standards.
In September 2022, the NJ CRC issued interim guidance to assist employers until the WIRE certification program is implemented, along with a sample reasonable suspicion form. According to the guidance, employers may “continue to utilize established protocols for developing reasonable suspicion of impairment and using that documentation, paired with other evidence, like a drug test, to make the determination that an individual violated a drug free workplace policy.” In addition, the guidance provides that an employer may use a cognitive impairment test, a scientifically valid, objective, consistently repeatable, standardized automated test of an employee’s impairment, and/or an ocular scan, as physical signs or evidence to establish reasonable suspicion of cannabis use or impairment at work.
Recently, in Zanetich v. Wal-Mart Stores East, Inc. d/b/a Walmert, Inc., et al., a New Jersey federal judge dismissed a proposed class action alleging violations of CREAMMA when the employer rejected job applicants who tested positive for cannabis, resolving a matter of first impression and clarifying that individuals cannot sue under the law. The court left the door open for the NJ CRC to enforce violations of the recreational cannabis law, or for the state legislature to amend the law to explicitly include a private cause of action.
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 (3d 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.
An employer may use consumer reports and investigative consumer reports for employment purposes under the New Jersey 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 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 he or she is 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 aware 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 to 34:11-4.14) and the Wage and Hour Law (N.J.S.A. §§ 34:11-56a to 34:11-56a38). The Wage Payment Law generally sets forth requirements regarding the timing 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, 2023, New Jersey’s minimum hourly wage is $14.13 per hour. New Jersey has enacted a law gradually increasing the state’s minimum wage to $15 an hour by 2024. For direct care staff at long-term care facilities, the minimum wage is $3 higher than the prevailing minimum wage. N.J.S.A. §34:11-56a4.
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 (N.J.S.A. § 34:11-4.4):
- employee welfare, insurance, hospitalization, medical, surgical, pension, retirement, and profit-sharing plans;
- government bonds, and 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.
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 is 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. § 34:11-56a33.
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, computer, 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 his or her total compensation from commissions and 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 workers from overtime requirements (N.J.S.A. § 34:11-56a4):
- farm laborers;
- hotel employees;
- employees of passenger bus companies;
- limousine drivers employed by limousine companies; and
- employees who raise or care for livestock.
What payroll and payment records must be maintained?
New Jersey law requires every employer to maintain certain records for each employee (N.J.A.C. § 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 workweek; 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.
Since May 20, 2020, the Wage Payment Law has required employers to provide specific information on pay stubs including gross wages, net wages, deductions, rate of pay, and number of hours worked during the pay period (if relevant to the wage calculation).
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)).