New Jersey Labor Law

April 5, 2017

Supreme Court to Consider Whether Class Action Waivers Are Enforceable in Employment Disputes

The U.S. Supreme Court granted certiorari to three consolidated cases addressing the enforceability of class action and collective action waivers in employment arbitration agreements. Many employment agreements include provisions stating that both employees and employers will submit any employment-related dispute to a neutral arbitrator. A waiver bars employees from filing or joining a class action related to their employment. The Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., appears to authorize this type of provision, but a waiver might violate the National Labor Relations Act, 29 U.S.C. § 151 et seq. The Supreme Court has recently upheld class action waivers in consumer contracts, and it may have agreed to hear this case in order to resolve any uncertainty resulting from those rulings.

In a class action, a plaintiff or group of plaintiffs sues on behalf of a larger group of similarly situated persons. This allows people who lack the resources to file suit, or whose individual claims are too small to justify the expense of suing, to pool their claims into a single lawsuit. Federal law establishes four criteria for certifying a class: (1) the class must be numerous enough to make individual lawsuits, or individual joinder of plaintiffs, impractical; (2) the class members must have common legal or factual questions; (3) the claims of the lead plaintiffs must be typical of the other class members; and (4) the lead plaintiffs must be able to “fairly and adequately” represent the class members and their interests. Fed. R. Civ. P. 23(a).

Arbitration is a method of alternative dispute resolution. Instead of filing suit, the parties submit their dispute to one or more arbitrators, who are usually legal professionals with knowledge of the subject matter at issue. The arbitrator will conduct a hearing, which might resemble a trial in many ways, and recommend an outcome. Employment contracts may require binding or non-binding arbitration. The results of binding arbitration are not subject to review by a court, absent evidence of misconduct by the arbitrator. A common criticism of arbitration is that the process tends to favor whomever is paying the arbitrator’s fees.

March 24, 2017

Do Employees Who Join National Strikes Have Legal Protection Against Getting Fired?

by Resnick Law Group, P.C.

The past few months have seen numerous high-profile protests around the country, both in opposition to and support of the new administration in the White House. At least two major protests have called for nationwide strikes or walkouts. In February 2017, A Day Without Immigrants called attention to the significant role of immigrants in the nation’s workforce. This month, A Day Without a Woman did the same with regard to women in the workplace. Similar protests have occurred in this country and in countries around the world for many reasons across the political spectrum. It is not clear how many people participated in the recent events, but they appeared to have a noticeable impact. They also resulted in some participants losing their jobs specifically because of their participation, which raises the question of whether, and to what extent, state and federal employment laws protect this sort of activity. A quick review of a few statutes shows that no simple answer exists. For any individual, the answer may depend on their particular employer’s policies.

Antidiscrimination laws, like Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD), protect employees from adverse actions by their employers based on specified categories, such as race, sex, and national origin. The NJLAD provides much broader protections than Title VII, but neither specifically addresses political views or activities. An employer who terminates or otherwise penalizes an employee for participating in a strike like the ones mentioned above might not violate state or federal antidiscrimination laws. A claim could hypothetically be possible if the employer’s actions indicate bias based on a protected category. The two recent strikes deal specifically with the protected categories of national origin and sex. This sort of claim would probably be a long-shot without solid evidence of an employer’s bias, but it is a possibility.

Laws protecting employees’ right to engage in labor activities are likely to be a better option, but the amount of protection they offer is also not clear. The National Labor Relations Act (NLRA) states that workers have the right to engage in “concerted activities” aimed at collective bargaining or “mutual aid or protection.” 29 U.S.C. § 157. Employers may not unreasonably interfere with employees who are exercising these rights, nor may they discriminate against employees who do so. It would be hard to make the case that events like A Day Without Immigrants have collective bargaining as their ultimate goal, but they do plausibly serve the purpose of “mutual aid or protection” for workers.
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February 26, 2017

Court Rules Against “Persuader Rule” Regarding Union Organizing Rights

by Resnick Law Group, P.C.

The U.S. Department of Labor (DOL) issued a final rule, known as the “persuader rule,” in early 2016. The rule dealt with actions by employers, both direct and indirect, “to persuade employees about how to exercise their rights to union representation and collective bargaining.” 81 Fed. Reg. 15923, 15924 (Mar. 24, 2016). It marked a significant change from the agency’s previous interpretation of an employer’s obligation to disclose communications related to labor organizing activity. A court permanently enjoined implementation of the new rule in November, however, finding that the DOL exceeded its rulemaking authority. The old version of the rule, based on the old interpretation of the statute, remains in effect.

The Labor Management Reporting and Disclosure Act (LMRDA) of 1959, 29 U.S.C. § 401 et seq., requires employers to disclose various payments and communications made to labor organizations, employees, and others with regard to union organizing activities. For example, an employer must disclose payments made to an employee or a group of employees to induce them “to persuade other employees” with regard to “the right to organize and bargain collectively through representatives of their own choosing.” Id. at § 433(a)(2). The statute might also require the disclosure of communications involving attorneys or consultants specifically involved in advising an employer about ongoing labor negotiations.

Section 203(c) of the LMRDA, id. at § 433(c), exempts certain communications from the disclosure requirement. The persuader rule determines how far this exemption applies. Under the previous interpretation of the persuader rule, disclosure was only required if a consultant communicated directly with employees. The DOL concluded that this “left a broad category of persuader activities unreported” and therefore “den[ied] employees important information” they might need to make an informed decision about union representation. 81 Fed. Reg. at 15924. It modified the persuader rule to include the disclosure of both “direct” and “indirect” activities aimed at “persuading” employees. See 29 C.F.R. § 406.2(a).

December 9, 2016

Employment Practices That Violate Antitrust Laws Can Have Both Civil and Criminal Penalties

by Resnick Law Group, P.C.

Our economic system depends on the competition of individuals and businesses in a free market, subject to reasonable regulations. When one or more “persons”—a legal term that includes individuals and various types of businesses—take actions that make their segment of the market less competitive, they may be in violation of federal or state antitrust laws. These statutes prohibit employment practices, such as “wage-fixing” agreements among competing companies, that unfairly harm employees’ interests. The U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) recently issued a guidance document, entitled “Antitrust Guidance for Human Resource Professionals,” addressing the enforcement of federal antitrust laws. In addition to civil penalties, the DOJ has the authority to pursue criminal charges for anticompetitive practices in some situations. The guidance document advises human resources (HR) professionals to enact policies aimed at avoiding civil and criminal liability for their employers.Congress passed the Sherman Antitrust Act, 15 U.S.C. §§ 1 through 11, in 1890 in order to combat the formation of monopolies that could take over control of entire markets or commodities, such as oil or steel. When a single company has control over a particular product or service within a market, consumers typically suffer because of factors like the lack of incentive to keep prices at a reasonable level. Employees can also suffer when there is no other employer who has need of their skills. Federal laws and many state laws allow state regulators to take steps to prevent actions, such as mergers of two or more formerly competing businesses, that could lead to a monopoly.

November 11, 2016

New Laws, Regulations Regarding Employee Sick Leave Set to Take Effect in New Jersey

by Resnick Law Group, P.C.

For most workers in the U.S., paid sick leave is a benefit conferred by their employer, solely based on the employer’s determination that it is a worthwhile investment. If an employer were to stop offering paid sick leave to its employees, they would have no recourse other than finding another job. No federal law requires paid sick leave, and only a handful of states—not including New Jersey or New York—have enacted laws mandating a minimum amount of paid sick leave. The news is not all dire, though. Thirteen cities in New Jersey have enacted their own paid sick leave laws. Morristown, New Jersey is the latest town to do so, although the mayor has reportedly delayed its implementation until early 2017. Employees of certain government contractors will soon benefit from a new Department of Labor (DOL) Final Rule, which takes effect at the end of November 2016.

Allowing workers to stay home due to an illness, without losing several days’ pay, seems like a sensible policy, at least when looking at society at large. Employees who cannot afford to lose the income may go into work despite being sick. This can spread illnesses like the flu, ultimately causing even bigger problems. While the Family Medical Leave Act allows unpaid leave for certain purposes, federal law makes no provision for paid sick leave. Only five states have paid sick leave laws: California, Connecticut, Massachusetts, Oregon, and Vermont. In a nationwide sense, it is generally up to individual employers to decide whether or not to offer it to their employees. On a solely individual level, an employer might not see the value of giving paid sick leave to its workers. Businesses may not like regulations, but sometimes they serve a very important purpose.

Morristown became the 13th New Jersey municipality to enact a paid sick leave law in September 2016. Ordinance O-35-2016 describes the numerous societal benefits of allowing employees to earn paid sick leave, including “reduc[ing] recovery time” and “reduc[ing] the likelihood of people spreading illness to other members of the workforce and to the public.” Employees earn one hour of paid sick leave for every 30 hours that they work, up to a maximum of 24 hours (three work days) in a calendar year for employers with fewer than 10 employees, and 40 hours (five days) for employers with 10 or more employees. Additional exceptions apply, depending on various circumstances.

October 21, 2016

Servers at Famous New York City Restaurant Vote to Unionize

by Resnick Law Group, P.C.

Employees in the U.S. have the right to organize themselves as a union or to join an existing labor union in order to negotiate with their employers regarding working conditions and various other features of employment. At the federal level, the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., secures these rights and prohibits interference by employers. Laws vary from state to state, however, regarding whether union membership may be made mandatory. “Right-to-work” laws in many states allow employees to elect not to join the union, while other states allow employers and unions to enter into “union security agreements.” Neither New Jersey nor New York has right-to-work laws. A well-known restaurant in Manhattan’s Times Square offers a recent example of how labor organizing can work. Amid multiple complaints and allegations of poor working conditions, 50 restaurant employees recently announced that they had voted to form a union.

The NLRA protects workers’ rights “to self-organization,” to form their own labor organization or to join an existing one, to choose representatives to engage in collective bargaining with their employer, and to “engage in other concerted activities” directed toward these purposes. 29 U.S.C. § 157. Employers are prohibited from interfering with or restraining employees in the exercise of these rights. Id. at § 158(a)(1). The law also prohibits various coercive acts by employers and labor unions, and it protects the rights of workers engaged in strikes or other activities authorized by their union. It leaves certain matters, however, up to the states.

Right-to-work laws state that workers may not be required to join a union. The NLRA allows union security agreements between unions and employers, which may place certain obligations on employees. Federal law does not allow “closed shops,” in which the employer can only hire union members. “Union shops,” in which employees must join the union after being hired, are allowed under the NLRA but are prohibited by right-to-work laws.

September 22, 2016

New Jersey Governor Vetoes Minimum Wage Bill

by Resnick Law Group, P.C.

In late August 2016, the Governor of New Jersey vetoed a minimum wage bill passed by the state legislature in June. The bill, A15/S15, would have increased the minimum wage in this state to $10.10 per hour at the beginning of next year, with additional annual increases for at least three years. Failing to keep pace with the rising cost of living is a major criticism of minimum wage laws around the country. Many workers in New Jersey and throughout the country must already go to court to assert their rights against employers who do not pay them the minimum amount required by law. The governor cited the alleged impact of a minimum wage increase on New Jersey businesses, claiming that it would result in fewer jobs. The status quo, however, still leaves people unable to meet basic needs with a paycheck from a full-time job.

State minimum wage regulations set the minimum wage at the greatest of three amounts:

(1) the amount set by state law, which was most recently set at $7.15 per hour as of October 1, 2006, N.J. Rev. Stat. § 34:11-56a4;
(2) the amount set by the federal Fair Labor Standards Act (FLSA), which has been $7.25 per hour since July 24, 2010, 29 U.S.C. § 206(a)(1)(C); or
(3) $8.38 per hour, N.J.A.C. § 12:56-3.1.

September 22, 2016

New York City Mayor Issues Executive Order Regarding Union Organizing

by Resnick Law Group, P.C.

Interactions between employers and labor unions generally fall under the purview of the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., which protects workers’ rights in regard to various labor organizing activities nationwide. In New York City, Mayor Bill de Blasio has imposed additional restrictions on employers and labor unions in certain situations. Executive Order No. 19 (EO19), issued in July 2016 and entitled “Labor Peace for Retail Establishments at City Development Projects,” requires covered employers and employees to enter into “labor peace agreements.” EO19 has come under criticism by various business interests, and it could be subject to court challenge.

The NLRA protects the rights of workers to organize for the purpose of collective bargaining and to engage in “concerted activities” toward that end. 29 U.S.C. § 157. Employers are generally prohibited from interfering with employees’ exercise of these rights or discriminating or retaliating against employees for union-related activity. Id. at § 158(a). The NLRA does not specifically say, however, that an employer cannot state its opposition to a union representing its employees. Employers are generally permitted to state a case for or against union organizing. It is theoretically then left to the employees to decide for themselves.

Before discussing how EO19 affects union organizing activities in New York City, it is important to note the limitations on its coverage. It only applies to “city development projects” that are larger than 100,00 square feet if commercial, or larger than 100 units if residential. “Covered employers” include retail and food-service businesses operating on the premises of a covered city development project, provided that they have at least 10 employees and occupy at least 15,000 square feet. Although EO19 only applies to business establishments physically located in New York City, it could affect New Jersey-based businesses that operate retail or food-service locations there.

June 28, 2016

State “Right to Work” Law Ruled Unconstitutional

by Resnick Law Group, P.C.

Laws in New Jersey and many other states protect workers’ right and ability to organize for the purpose of collective bargaining with employers. Some states, however, have passed laws aimed at significantly reducing workers’ ability to unionize, ironically named “right to work” laws. These laws prohibit requiring workers who choose not to join a union to pay any sort of fee to the union, even if they benefit from working conditions only made possible by union efforts. In a bit of good news, a Wisconsin court has ruled that its state’s “right to work” law constitutes a taking of union property by the government without just compensation, in violation of the state constitution. Int’l Assoc. Of Machinists Dist. 10, et al. v. State of Wisconsin, et al., No. 2015CV000628, order (Wis. Cir. Ct., Dane Co., Apr. 8, 2016).

Unions represent employees in collective bargaining negotiations with their employers. These types of negotiations, backed by strikes and other actions, helped make possible many of the features of employment taken for granted today. Workers who do not join a union generally still benefit from the union’s activities, so unions have, in the past, sought contractual terms with employers to address this imbalance. A “closed shop” refers to an employer that, under the terms of a union contract, may only hire union members. A “union shop” is an employer that must require all employees to join the union.

Federal law has banned closed-shop clauses in union-employer contracts. States can prohibit union-shop clauses, but federal law allows unions to require the payment of an “agency fee” by non-union workers. See Communications Workers of America v. Beck, 487 U.S. 735 (1988). “Right to work” laws prohibit union-shop clauses, particularly agency fees. The Wisconsin Legislature passed a “right to work” law in 2015. See WI Stat. §§ 111.04(3)(a)(4), 111.06(1)(c).

June 10, 2016

Deadlocked Supreme Court Affirms Appellate Court Ruling on Public Sector Union Dues

by Resnick Law Group, P.C.

A challenge to a state law mandating the payment of union fees by certain public employees met with an unusual, if not unexpected, end in March. The U.S. Supreme Court heard oral arguments in January 2016 in Friedrichs v. Cal. Teachers Assoc., and observers at the time suggested that the court seemed to be leaning toward striking down the law in question. The death of Supreme Court Justice Antonin Scalia in February, however, left the court evenly divided, politically speaking. The court tied 4-4 and therefore had to allow the lower court ruling to stand. Friedrichs, 578 U.S. ___ (2016).The plaintiffs alleged that a law requiring them to pay union fees even if they were not union members violated their First Amendment rights. This type of arrangement is often known as a “fair share provision,” since employees who are not union members still benefit from a union’s collective bargaining activities. Employers with fair share provisions are known as “agency shops.” When an employer enters into a contract with a union that requires all employees to join the union if they are not already members, and to remain members for the duration of their employment, this is known as a “union shop.”

Some states have enacted laws that prohibit union shops and agency shops. Supporters of these laws call them “right to work” laws, while critics often call them “right to work for less” laws. One argument in favor of requiring union membership or the payment of a fee is that it reduces the problem of “free riders,” an economic term referring to people who benefit from something, such as collective bargaining agreements, without paying for them.