The New Jersey Employment Law Firm Blog

March 10, 2025

Study Shows Race and Sex Bias in AI Hiring Tools

Artificial intelligence (AI) applications are becoming quite common for a wide range of uses in employment. Many businesses use AI tools in hiring as a way of increasing efficiency, They can train AI tools, for example, to screen out applicants who meet certain criteria, or to look for certain favored criteria. The trick, as it turns out, is to make certain that the use of AI in hiring does not lead to violations of New Jersey employment law. On multiple occasions over the past few years, AI hiring tools have produced outcomes that demonstrate bias based on race, sex, or other factors. Even if a machine or algorithm makes a hiring decision, the employers may ultimately be liable for unlawful discrimination. The legal system is still catching up to these aspects of AI. A recent study shows how biases in the information that an AI system receives can lead to biased outcomes.

The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination based on numerous factors, including race, sex, religion, disability, sexual orientation, gender identity, pregnancy, and national origin. Overt discrimination, such as refusing to hire someone specifically because they belong to a group listed in the NJLAD, is not the only kind of unlawful discrimination. Disparate impact discrimination occurs when a policy or practice has an outsized impact on members of a protected group, regardless of whether the employer intended to discriminate.

AI hiring tools may fall somewhere between these two types of discrimination. They can have a disparate impact on a protected group with no biased intent on the employer’s part. Studies suggest, though, that any bias AI shows is the result of bias in the information used to train the AI. Employers’ legal duty to guard against these types of bias remains an op[en question.
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February 24, 2025

National Labor Relations Board General Counsel Takes on Non-Compete Clauses

by Resnick Law Group, P.C.

Workers have the right, under both federal and New Jersey employment laws, to engage in activities related to organizing and negotiating with their employers. This might involve joining or forming a labor union, but the law also protects more informal activities that have the goal of protecting workers’ interests. Employers may not interfere with employees who are trying to exercise these rights, nor may they retaliate against employees who have engaged in protected activities. The National Labor Relations Board (NLRB) is responsible for investigating alleged violations of the federal labor rights statute. Its General Counsel (GC) may set certain policies for how the agency investigates and prosecutes charges of unlawful activity. In early October 2024, the GC issued a memo outlining her position that certain provisions in employment contracts, including non-compete agreements, violate federal law.

In a May 2023 memorandum, the GC defined a non-compete agreement as an agreement that “prohibit[s] employees from accepting certain types of jobs and operating certain types of businesses after the end of their employment.” Courts around the country have reviewed the validity and enforceability of non-compete agreements. They must balance an employer’s interest in protecting their business with an employee’s need for a job in their chosen career path.

While the specifics vary from one jurisdiction to another, most courts have held that non-compete agreements are enforceable when they have a limited scope in both duration and geography. A non-compete agreement that prohibits an employee from working for a competitor anywhere in the country for ten years, for example, would probably be unenforceable. It would prevent the employee from earning a living in their field of knowledge and experience. An agreement that only restricts competition within a twenty-mile radius of the employer for six months might be enforceable since it sets reasonable limits.
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February 12, 2025

Home Care Company Owes Wages to Employees for Travel Time, Third Circuit Rules

by Resnick Law Group, P.C.

Employers must pay hourly employees for all the time they are on the job. This is not limited to the time they are at their workstation and actively engaged in their job duties. New Jersey employment law requires employers to pay workers for time spent on other required tasks. Unpaid time spent changing into and out of work uniforms, for example, is a common basis for wage claims under state law and the federal Fair Labor Standards Act (FLSA). The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, recently ruled in favor of the U.S. Department of Labor (DOL) in a wage lawsuit. The DOL filed suit on behalf of a group of home healthcare workers. The employer was not paying them for the time they spent traveling between clients’ homes. The court found that this was a “willful violation” of the FLSA.

The FLSA states that employers must pay all non-exempt employees a minimum wage of $7.25 per hour. Non-exempt employees are also entitled to time-and-a-half for overtime hours — if an employee receives $10 per hour for a forty-hour workweek, they should receive $15 per hour for hours over forty in a week.

Employers may violate the FLSA when they do not pay employees for all the hours they are at work. DOL regulations state that employees are entitled to wages for any time spent “on duty.” The rule uses the example of a “fireman who plays checkers while waiting for alarms.” They are not “working,” but they are also not free to do as they please. When employers do not pay employees for all the time they are on duty, an employee’s actual hourly rate may fall below the minimum wage. Their total hours worked may exceed forty hours in a week, entitling them to overtime pay.
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February 11, 2025

Gender Identity Discrimination and Workplace Restroom Access in New Jersey

by Resnick Law Group, P.C.

Discrimination based on gender identity or gender expression has received a large amount of attention, partly due to advances made by advocates for transgender and gender non-conforming individuals in the workplace and elsewhere. It is also due to pushback against those advances. New Jersey employment law specifically bars discrimination based on gender identity and gender expression, while federal law treats it as a form of sex discrimination. The use of restrooms in the workplace has been a topic of particular controversy in recent weeks due to a dispute involving the first openly transgender woman elected to Congress. New Jersey law generally states that employers must allow bathroom use based on individual gender identity.

The Occupational Safety and Health Administration (OSHA) requires “lavatories…in all places of employment,” with only a few exceptions. Employers may have restrooms separated by sex or unisex restrooms. OSHA regulations are primarily concerned with sanitation and employee health, although the agency offers guidance on gender identity issues.

The New Jersey Law Against Discrimination (NJLAD) states that employers may not discriminate against employees or job applicants “because of [their]…gender identity or expression.” The New Jersey Attorney General’s Division on Civil Rights interprets this provision to include “us[ing] a bathroom or changing room consistent with [an individual’s] gender identity or expression.” The state government’s policy on individuals who are transitioning their gender identity or expression includes a provision on restroom access, which requires state employers to provide “the same level of restroom access available to non-transgender individuals.”
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February 5, 2025

Four Federal Agencies Partner to Investigate Antitrust Violations Affecting Workers in New Jersey and Nationwide

by Resnick Law Group, P.C.

Employees who have experienced unlawful practices in the workplace, such as wage and hour violations, misclassification, or discrimination, can turn to New Jersey employment laws. Some employment practices may violate antitrust laws at the federal and state levels. Antitrust laws prohibit actions that prevent or inhibit competition among businesses. The less businesses can compete, the more consumers will suffer without free market incentives to keep prices low. This can apply to employment, such as when employers collude to limit employees’ options for finding a new job. Several federal agencies entered into a memorandum of understanding (MOU) this fall. They agreed to cooperate and share information when investigating mergers that might violate antitrust law and harm employees.

The Sherman Antitrust Act of 1890 addresses monopolies that restrain trade. This may include employment practices, such as when competing businesses agree to fix wages or refrain from hiring one another’s employees. This can deprive employees of opportunities to advance in their careers or demand better wages. If employers know their employees have no other prospects in their area, they have no incentive to raise wages or improve other working conditions.

The Clayton Antitrust Act of 1914 deals with practices that Congress did not specifically address in the Sherman Act. This includes mergers that may harm consumers or employees. The law prohibits mergers that could create a monopoly in a particular market. Employees may suffer from an unlawful merger if it substantially reduces the number of employers in a market or geographic area.
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January 30, 2025

New Department of Labor Overtime Rule Hits Roadblock in New Jersey and Nationwide

by Resnick Law Group, P.C.

Federal and New Jersey employment laws protect many workers’ right to receive overtime pay when working more than forty hours a week. The federal Fair Labor Standards Act (FLSA) provides overtime pay at a time-and-a-half rate. It exempts certain categories of workers, including “executive, administrative, and professional” (EAP) employees. The U.S. Department of Labor (DOL) issued a revised rule earlier this year that modified the criteria for the EAP exemption. The result is that fewer people are exempt from minimum wage and overtime under the FLSA. Lawsuits soon followed. A U.S. district judge recently struck the new overtime rule down. While his initial ruling only applied to the State of Texas as an employer, a subsequent ruling purports to strike the rule down nationwide, including New Jersey.

The FLSA uses broad language in many parts, leaving it to the DOL to work out the details. This includes the precise meanings of “executive, administrative, and professional” jobs. The DOL defines them based on factors like job duties and payment of a salary instead of hourly wages. It sets a threshold salary amount, above which a person falls under the EAP exemption. The new rule increased this threshold amount from $684 to $844 per week, or from $35,568 to $43,888 annually, as of July 1.

The rule sets another increase on January 1, 2025. Beginning on January 1, 2027, the threshold amount increases every three years based on current economic data. Two lawsuits in the Eastern District of Texas followed the publication of the DOL’s rule. Plaintiffs included the State of Texas and various business associations.
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January 22, 2025

Equal Pay Laws in New Jersey

by Resnick Law Group, P.C.

Disparities in wages and salaries remain a pernicious form of employment discrimination. According to the Pew Research Center, the nationwide gender pay gap only improved by 2% from 2002 to 2022. Women, on average, earned $0.80 for every $1 men earned in 2002, and $0.82 per $1 two decades later. These disparities can be much more pronounced when other factors, such as race, are taken into account. Both federal and New Jersey employment laws are working to address the issue, but it remains an issue. Lilly Ledbetter became an unintentional pioneer in this fight when Congress passed a law named after her that helps employees prove pay discrimination in court. Mrs. Ledbetter passed away at the age of 86 on October 12, 2024. In honor of her contributions to the battle for pay equity, we offer this review of her impact on federal pay discrimination law.

Several federal statutes address pay discrimination. The Equal Pay Act (EPA) of 1963 amended the minimum wage section of the Fair Labor Standards Act (FLSA). It applies specifically to gender-based disparities in pay for equal work, treating them as minimum wage and overtime violations.

Title VII of the Civil Rights Act of 1964 covers discrimination “with respect to…compensation” based on race, sex, religion, color, and national origin. Section 706(e) of the statute states that an employee must file a charge within 180 days of an alleged discriminatory practice. This makes sense when the employee is aware of the discriminatory practice at or near the time it occurs, such as in many cases involving sexual harassment or wrongful termination. Pay discrimination can be much harder to identify. This is where Lilly Ledbetter enters the story.
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November 29, 2024

New State Law Requires Pay Transparency by New Jersey Employers

by Resnick Law Group, P.C.

Disparities in wages and salaries remain a major form of workplace discrimination. New Jersey employment laws have tried to address this issue, but it can be difficult to identify wage discrimination, especially when employers attempt to prevent discussion about wages and salaries. The New Jersey Legislature passed a law in September 2024 that requires pay transparency. Covered employers will be required to include wage or salary information in job postings and announcements for transfer opportunities. The law does not allow employees to file lawsuits for violations, but it does impose civil penalties. It will take effect on June 1, 2025.

The pay transparency law applies to New Jersey employers with at least ten employees over at least twenty weeks in a year. Its definition of “employer” is fairly broad. Employment agencies and job placement agencies fall under the definition if they meet the minimum employee requirement.

The law sets two main requirements for covered employers. The first involves the disclosure of pay in postings for “new jobs and transfer opportunities.” It applies to both external postings, such as those posted on job search websites and other resources, and postings made internally within the company. Postings must include:
– The hourly wage or salary for the job, or the wage or salary range; and
– A “general description” of benefits and other compensation for which an employee would be eligible in the listed job.
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November 22, 2024

New Jersey Employment Law and Political Speech in the Workplace

by Resnick Law Group, P.C.

The 2024 election is over, but arguments over politics are likely to continue for quite some time. Families might fight about politics at the dinner table, but what happens when political speech enters the workplace? What rights do employees have to speak about matters of political importance at work, and what rights do employers have to limit or restrict such speech? The answer depends, in part, on whether an employer is public or private. Public employers are subject to the First Amendment’s free speech provisions. Private employers are not, but they are still subject to limitations regarding restricting political speech. Federal and New Jersey employment laws allow employees to discuss certain issues at work, some of which may be deemed political.

Public Employers

The First Amendment states, in part, that the government may not “abridg[e] the freedom of speech.” This protection only applies to actions by or on behalf of the government. Public employers, as part of the government, are bound by the First Amendment. This does not mean that public employees have an unlimited right to speak their minds without concern for their jobs.

First of all, public employers have a right to maintain a professional and orderly workplace. Employees do not have a First Amendment right to speak in ways that disrupt their employer’s ordinary operations. This is similar to how governments can regulate the time and place of certain types of speech. A person can hold a rally in a park in the afternoon, for example, but not at 2:00 a.m. on a residential street.
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November 18, 2024

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

by Resnick Law Group, P.C.

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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