The New Jersey Employment Law Firm Blog

November 18, 2024

NLRB Final Rule Reinstates Several Union Organizing Tools That May Affect New Jersey Workers

Under federal and New Jersey employment laws, workers have the right to organize themselves for collective bargaining and other activities related to advocacy for their interests in the workplace. The National Labor Relations Board (NLRB) oversees multiple aspects of federal labor law. This includes investigating alleged violations of workers’ rights under the National Labor Relations Act (NLRA), overseeing union elections, and bringing administrative cases against employers or unions. Some of the NLRA’s language is rather vague, leaving interpretation and implementation of the law to the NLRB. The administrative rulemaking process allows the NLRB to create rules and regulations based on the NLRA. These rules tend to shift as different administrations move in and out of the White House. This summer, the NLRB issued a final rule that makes several changes to the regulations. Some — but not necessarily all — of the changes may be helpful to New Jersey workers.

The NLRA addresses a variety of issues involved in labor relations.
– Section 7 of the statute defines employees’ rights, although it does so in very general terms. These include the right to organize, engage in collective bargaining, and engage in other activities related to “mutual aid or protection.” Employees also have the right to refrain from any of these activities.
– Section 8 defines “unfair labor practices” by employers and unions, such as restraining or coercing employees with regard to their rights under § 7.
– Section 9 deals with how to designate a union as employees’ official representative for collective bargaining, including procedures for union elections.
– Section 10 outlines the NLRB’s power to investigate and adjudicate complaints.

The NLRB’s new rule rescinds a 2020 rule and reinstates several practices that tend to benefit unions. One such practice is known as a “blocking charge.” This allows regional NLRB directors to postpone a pending election if they receive a charge alleging unfair labor practices that would restrict “employee free choice” in that election. The NLRB can investigate the charge before proceeding with the election. The 2020 rule required regional directors to allow election to go on despite the charge.
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November 8, 2024

How AI Can Cause Inadvertent Disability Discrimination in New Jersey Workplaces

by Resnick Law Group, P.C.

The Americans with Disabilities Act (ADA) of 1990 protects workers against discrimination because of injuries, illnesses, and other conditions that impair their daily lives. The statute prohibits employers from discrimination based on disability and requires them to provide reasonable accommodations to help employees with disabilities perform their jobs. Compliance with the ADA often requires careful consideration of employees’ needs on a case-by-case basis. The Equal Employment Opportunity Commission (EEOC) has addressed concerns about employers’ use of artificial intelligence (AI) systems to handle various tasks once left to human employees. The agency has identified areas of concern where an AI system could lead to ADA violations.

Protections Under the ADA

An employer may not “discriminate against a qualified individual on the basis of disability” in matters like hiring, promotions, termination and layoffs, compensation, and other aspects of employment. The ADA prohibits “medical examinations and inquiries” intended to assess whether an individual has a covered disability, or the extent of such a disability.

The statute imposes an obligation on employers to make reasonable accommodations for “the known physical or mental limitations” of an employee or job applicant who is otherwise able to perform their job duties. The only exception is when an employer can show that an accommodation “would impose an undue hardship” on the employer’s business. Accommodations that have been deemed “reasonable” include wheelchair access, flexible scheduling, and reading assistance for employees with visual impairments.
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November 1, 2024

Third Circuit Allows Religious Discrimination Claim Involving Vaccine Mandate to Proceed

by Resnick Law Group, P.C.

Both private and public employers have obligations to their employees under New Jersey employment laws. These include obligations to pay a minimum wage and to maintain a workplace reasonably free from discrimination and harassment. Public employers, such as state and local agencies and officials, may also have a duty to respect their employees’ constitutional rights. An employee who believes their employer has discriminated against them because of their religion can bring a claim under a state or federal employment statute. If they work for a public employer, they may also be able to claim a violation of their First Amendment right to freedom of religion. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, recently ruled in favor of an employee’s religious discrimination claim. Rather than suing under an employment statute, the employee alleged violations of the First Amendment’s Free Exercise Clause.

Public employees may be able to assert claims against their employers for violations of certain constitutional rights. Many claims rely on 42 U.S.C. § 1983, which allows a person to sue for deprivation of constitutional rights for actions taken “under color of any statute” or other law. Section 1983 claims are common in a wide variety of incidents involving government officials or agencies, from police brutality to employment discrimination.

It is also possible to allege a constitutional violation directly as a cause of action. These types of claims often involve First Amendment rights. For example, public employers do not have as much leeway to restrict their employees’ speech as private employers do. Public employees may be able to assert claims involving violations of their rights to free speech, freedom of religion, or other rights under the First Amendment.
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October 25, 2024

What the Four-Fifths Rule Means in New Jersey Employment Discrimination Cases Involving AI

by Resnick Law Group, P.C.

Employment discrimination on the basis of factors like race, religion, sex, sexual orientation, gender identity, and disability is unlawful under New Jersey employment law. Broadly speaking, courts have identified two types of unlawful employment discrimination: discriminatory intent and disparate impact. Cases based on discriminatory intent often involve overt bias. In disparate impact cases, an employer may violate the law if their policy or practice has an outsized adverse impact on a protected group, even if it appears outwardly neutral. A group of federal agencies developed a guideline several decades ago, known as the Four-Fifths Rule, for determining when a policy or practice has too much of a disparate impact on a protected group. While this rule significantly predates the current use of artificial intelligence (AI) in employment, it provides a useful guide for assessing when an AI tool might violate employment laws.

Title VII of the Civil Rights Act of 1964 is the main federal statute dealing with employment discrimination. It mentions five protected categories by name: race, sex, religion, color, and national origin. Congress amended the statute in 1978 to add discrimination based on pregnancy and childbirth to the definition of sex discrimination. The U.S. Supreme Court has held that sex discrimination includes discrimination based on sexual orientation and gender identity.

The Four-Fifths Rule is based on uniform guidelines developed by four federal agencies in 1978: the Equal Employment Opportunity Commission (EEOC), the Civil Service Commission, the Department Of Labor, and the Department of Justice. Although it includes the word “rule,” the Four-Fifths Rule is more like a guideline that provides an idea of when an employment practice might run afoul of the law.
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October 17, 2024

Department of Labor Guidance Discusses Risks Posed by AI to Wage and Hour Laws

by Resnick Law Group, P.C.

As artificial intelligence (AI) becomes more common in computer applications, lawmakers and policymakers have taken notice. This includes the use of AI by employers. For example, several bills introduced in the state legislature would add AI protections to New Jersey employment law. The White House issued an executive order in October 2023 calling for policies that “mitigate AI’s potential harms to employees’ well-being and maximize its potential benefits.” In April 2024, the Department of Labor’s Wage and Hour Division (WHD) issued Field Assistance Bulletin (FAB) 2024-1, which addresses the potential legal issues that AI may pose under several federal employment statutes.

AI and Federal Employment Laws

The WHD uses the definition of “artificial intelligence” that Congress adopted in the National Artificial Intelligence Initiative Act of 2020: a “machine-based system” that can “make predictions, recommendations or decisions influencing real or virtual environments” based on “human-defined objectives.” This consists of three steps, according to the statute:
1. The system perceives an environment.
2. It “abstract[s] such perceptions into models” using an automated system.
3. It “use[s] model inference” to produce new information, including recommendations or conclusions.
Employers may use automated AI tools for a wide range of analytical purposes related to hiring, management, HR, and employee and labor relations.

Potential AI Issues Identified by the WHD

FAB 2024-1 discusses potential problems under three employment statutes.
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October 11, 2024

Retail Workers Settle Overtime Pay Claim for $1.25 Million

by Resnick Law Group, P.C.

Employees who are not exempt from overtime rules are entitled to a greater pay rate for any hours they work over forty in a week. Federal and New Jersey employment laws protect this right and impose penalties and legal liability on employers who fail to pay overtime rates to their employees. Under the federal Fair Labor Standards Act (FLSA), an employer may be liable to employees for double the amount of unpaid overtime. The statute allows an employee to bring a lawsuit on behalf of themselves and other employees in similar circumstances. A group of retail employees recently settled a lawsuit that alleged overtime violations under the FLSA and state law. As part of the settlement, the defendant agreed to pay $1.25 million in damages.

The FLSA requires employers to pay time-and-a-half to non-exempt employees for overtime work. Generally speaking, overtime hours begin once an employee has worked forty hours. The statute uses the term “workweek,” but does not provide a definition. Employers may vary on how they define the term, although a workweek must consist of seven days. A workweek typically goes from Monday to Sunday or Sunday to Saturday. If an employee works forty-five hours during the period that the employer considers a workweek, the employer must pay them the overtime rate for five hours.

Section 16(b) of the FLSA allows employees to bring collective actions for “other employees similarly situated.” A collective action under the FLSA is similar to a class action in many ways. It allows multiple employees with similar claims to pool their claims, which can make asserting their rights more efficient. One important difference is that FLSA collective actions are strictly “opt-in.” Some class actions automatically include all parties who meet the criteria for the class unless they opt out of class membership. For an FLSA collective action, potential plaintiffs must give written consent to be part of the lawsuit.
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October 4, 2024

New Jersey Supreme Court Rules on Medical Staff’s Employment Contract Dispute

by Resnick Law Group, P.C.

Employers who enter into contracts with their workers have an obligation to abide by the terms of those contracts. These obligations exist independent of any federal or New Jersey employment laws. Contract law governs the enforcement of contractual terms. An employment action that does not violate an employment statute might still violate contract law. The New Jersey Supreme Court recently ruled in a case involving several contract law claims against a hospital. The plaintiffs alleged that the hospital breached the implied covenant of good faith and fair dealing. This is a legal principle that holds that every contract carries an implied agreement that the parties will deal fairly with one another and negotiate in good faith. The court’s ruling is complicated, going in the plaintiffs’ favor in some ways, but not in other ways. The ruling nevertheless provides a useful guide for how this implied covenant may arise in employment situations.

The implied covenant of good faith and fair dealing is almost impossible to define. It depends heavily on the circumstances of each case. Factors that may be important include the relative power and resources of each party to a contract, the history of negotiations and agreements between them, and the nature of a specific agreement. The implied covenant generally prohibits parties from acts like hiding or misrepresenting important information or taking steps to undermine the other party’s ability to perform their obligations or benefit from the contract. It may arise in claims like wrongful termination.

The plaintiffs in the case described above are a group of neurosurgeons. According to the court’s decision, they first obtained core privileges and admitting privileges at the defendant’s hospital in 2003. While this is not the same as most people’s employment arrangements, the same legal principles can apply to many employer-employee relationships. “Core privileges” means that the plaintiffs could use the hospital to perform neurosurgical procedures. “Admitting privileges” allow physicians to admit established patients to the hospital.
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September 26, 2024

Bill Pending in U.S. Senate Would Restrict Employers’ Use of AI in New Jersey and Nationwide

by Resnick Law Group, P.C.

The use of artificial intelligence (AI) technology has caused concern in numerous industries, raising concerns ranging from copyright protection to employment discrimination. State legislatures, state and federal regulatory agencies, and the White House have weighed in on the potential misuse, whether intentional or not, of AI in the workplace. New Jersey employment law does not address this issue directly, but several pending bills would take it on. The U.S. Senate also has a bill that deals with the use of AI in hiring decisions. The No Robot Bosses Act (NRBA) would limit the ways employers may use AI during the hiring process and give individuals the right to sue for damages. The bill is unlikely to pass during this session, but it will hopefully inspire future bills.

Several bills introduced in the 2024-25 session of the New Jersey Legislature address AI in employment decisions. One would regulate “automated employment decision tools,” systems that use machine learning or other types of AI to screen job applicants or identify preferred candidates for a position. These types of tools rely on human-supplied data to “learn,” so they are prone to making biased decisions if they receive biased data. This can occur with no conscious intent to be biased. The bill would require “bias audits” for all AI screening tools. The NRBA also addresses these concerns.

The NRBA would regulate “automated decision systems” (ADSs), which it defines as “a system, software, or process that uses computation” to make decisions or assist in decision-making. This includes systems that use “machine learning, statistics, or other data processing or artificial intelligence techniques.”
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September 18, 2024

New Jersey Courts Reject Effort to Stop Temporary Workers’ Bill of Rights from Taking Effect

by Resnick Law Group, P.C.

The Temporary Workers’ Bill of Rights (TWBOR) became law in New Jersey in February 2023. The Legislature determined that more than 100,000 temporary workers employed by staffing agencies earned substantially less than direct employees performing the same work. It also found that temporary workers are often at risk of abuse or exploitation and that temporary workers do not have the full range of protections offered by New Jersey employment laws. The TWBOR addresses these concerns. The bill took effect on August 5, 2023, after a federal court rejected a challenge by several staffing agency trade organizations. The Third Circuit Court of Appeals affirmed the court’s ruling in July 2024. A month later, the district court denied another motion from the plaintiffs seeking an injunction against the TWBOR. Whether additional appeals will follow remains to be seen.

The TWBOR provides several important legal protections for temporary workers. The law mainly applies to staffing agencies that employ temporary workers and make them available to client companies. Staffing agencies must pay temporary workers at least the same amount that their clients pay their employees for similar work. They must also provide equal benefits. They may not retaliate against workers who exercise the rights the TWBOR guarantees. They must provide workers with written notice for every new assignment that provides information like the work they will be performing, the length of the assignment, and the wage rate they will receive.

A group of trade associations that represent New Jersey staffing agencies filed suit in May 2023 seeking to prevent the TWBOR from taking effect. They sought a preliminary injunction that summer. A federal judge denied their request, finding that they had failed to establish one of the elements required for a preliminary injunction: that they would be likely to succeed on the merits of their claims. The court rejected other arguments from the plaintiffs as well, including a claim that the TWBOR discriminated against out-of-state businesses in violation of the Dormant Commerce Clause and that the law was void because of vagueness. It held that protecting temporary workers is a valid state interest and that the TWBOR was reasonably related to this interest.
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August 30, 2024

Third Circuit Affirms Dismissal of Plaintiff’s Racial Discrimination Case

by Resnick Law Group, P.C.

In a recent ruling, the Third Circuit upheld a summary judgment in favor of Bryn Mawr Trust Company (BMT) in a lawsuit filed by former employee, Russo. Russo, who is Black, alleged that her supervisor, Therese Trainer, subjected her to racial discrimination, retaliation, and a hostile work environment. Ultimately, the court rejected Russo’s claims against her former employer; however, the case provides important insight to similarly situated employees who are looking to learn more about their options.

The Court Rejects Each of the Plaintiff’s Claims

The court reviewed Russo’s claims under the McDonnell Douglas burden-shifting framework. While Russo established a prima facie case of discrimination by highlighting several instances of inappropriate comments and perceived hostile actions by Trainer, the court found that BMT provided legitimate, non-discriminatory reasons for its actions. Specifically, the court noted that the security investigation into Russo’s handling of a vault key, which led to her suspension with pay, was justified given the seriousness of the breach. Additionally, the court determined that Russo’s claim of constructive discharge—stemming from BMT’s decision to give a hostile customer 30 days to close her account—did not hold up under legal scrutiny. The court concluded that BMT’s response was consistent with its standard procedures and did not create an environment so intolerable that a reasonable person would feel compelled to resign.

The court also dismissed Russo’s retaliation claims, emphasizing that the security investigation was initiated before Russo filed her EEOC and PHRC complaints, making it unlikely to be retaliatory. The court further found that BMT’s handling of the hostile customer incident was prompt and appropriate, undermining Russo’s claims of retaliation.