The New Jersey Employment Law Firm Blog

May 18, 2022

NLRB General Counsel Takes on Mandatory Meetings by Employers About Unionization in New Jersey

The National Labor Relations Act (NLRA) protects workers’ rights to engage in activities related to organizing and collective bargaining. The statute prohibits employers from interfering with employees who are exercising their rights, or from coercing them against such activities. New Jersey employment laws provide some protections for labor organizing, but much of the work happens at the federal level. The National Labor Relations Board (NLRB) has the authority to investigate and adjudicate alleged NLRA violations. In April 2022, the General Counsel (GC) of the NLRB issued a memo calling on the NLRB to challenge meetings held by employers to address labor organizing activities, which employees are required to attend. The GC’s position would require the NLRB to reverse a seven-decade-old precedent allowing these types of meetings.

Employees have the right to “self-organization,” to join a union or form their own, and to select representatives to engage in collective bargaining with their employers. They also have the right to refrain from engaging in these types of activities. Employers may not “interfere with, restrain, or coerce employees” with regard to any of these rights. They may not discriminate against employees based on participation in protected activities, nor may they retaliate against workers who engage in acts protected by the NLRA.

In 1948, the NLRB issued a decision regarding an employer that required employees to attend a meeting, held during work hours, at which several managers gave speeches discouraging union organizing or membership. A Trial Examiner had held that the “compulsory” nature of the meeting violated the NLRA’s ban on coercion by employers. The NLRB disagreed. It held that the employer’s actions were not unlawful under the NLRA based on the “totality of the circumstances.” This decision has functioned as a precedent for seventy-four years in cases challenging mandatory employee meetings in which employers address organizing activities.

May 13, 2022

EEOC Adds Guidance on When COVID-19 May Be a Disability Under the ADA for New Jersey Employees

by Resnick Law Group, P.C.

Federal and state employment laws in New Jersey protect workers from discrimination on the basis of disability. The Equal Employment Opportunity Commission (EEOC) construes the term “disability” very broadly to include an array of physical and mental conditions. We are still learning about the long-term effects of COVID-19 on some people. The symptoms of “long COVID” can be debilitating. In late 2021, the EEOC updated its guidance regarding COVID-19 to address when the illness may constitute a disability under the Americans with Disabilities Act (ADA). If you are experiencing symptoms associated with a possible disability and are concerned about how you are treated at work, please reach out to a New Jersey employment lawyer to discuss the situation.

The text of the ADA itself contains a rather general definition of “disability.” It covers impairments that “substantially limit[] one or more major life activities.” The statute defines “major life activities” as most daily tasks, such as “sleeping, walking, standing, lifting, bending, speaking, [and] breathing,” to name but a few, along with most “major bodily functions.”

The ADA’s protections apply in three situations:
– People who have a disability, as defined by the statute;
– People who have a “record” of a disability; and
– People who are “regarded as having” a disability.
A worker may experience unlawful discrimination based on a perception that they have a disability, regardless of whether they actually have a disability that impairs a major life activity.
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May 6, 2022

Federal Judge Reinstates Earlier Independent Contractor Rule for New Jersey Workers’ Claims Under the FLSA

by Resnick Law Group, P.C.

State and federal laws protect New Jersey employees’ rights to minimum wage and overtime compensation. The term “employees” is important here, because these laws’ protections are not available to independent contractors. The distinction between an employee and an independent contractor has been the subject of much employment litigation, both in New Jersey and around the country. Employers may attempt to classify employees as independent contractors in order to avoid various legal obligations, a practice known as “employee misclassification.” New Jersey has developed a reasonable clear definition of “employee.” Federal law lags behind, with different definitions for different statutes. Recent litigation addressed the definition of “employee” under the Fair Labor Standards Act (FLSA), which sets a national minimum wage and standards for overtime pay. The current White House administration withdrew an employer-friendly definition of “employee” put in place by the previous administration. In March 2022, a federal judge vacated this move, reinstating the earlier rule.

The FLSA defines “employee” in quite general terms as “any individual employed by an employer.” It defines “employ” as “to suffer or permit to work.” The FLSA’s definition of “employee” goes into more detail for individuals employed by the government. It excludes most elected officials, political appointees, and volunteers for government agencies. The statute also exempts employees in various roles from its provisions on minimum wage and overtime pay. For workers who are neither excluded from the definition of “employee” nor exempt from the FLSA’s protections, questions often still remain as to whether they are “employees” in the specific context of the FLSA.

New Jersey uses the “ABC test” to determine whether an individual is an employee or an independent contractor. The test is named for the three-part definition of “employee” found in §§ 43:21-19(i)(6)(A) through (C) of the New Jersey Revised Statutes. New Jersey employment law presumes that a worker is an “employee” unless the employer can establish all three of the following:
A. The worker has control over how and when they do their job;
B. The worker performs the services away from the employer’s usual premises, or their services are not part of the employer’s regular business; and
C. The worker has an “independently established” business.
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May 2, 2022

EEOC Issues Guidance on Employment Discrimination Based on Caregiver Responsibilities in New Jersey and Nationwide

by Resnick Law Group, P.C.

Workers have long had to juggle their obligations at work and caregiving responsibilities at home. This includes not only parents, but also people caring for elderly relatives, family members with disabilities, and others. The COVID-19 pandemic has made this issue much more pressing. Some jurisdictions have enacted laws that expressly protect people with caregiving responsibilities from employment discrimination. The New Jersey Law Against Discrimination (NJLAD), for example, protects parents and others with caregiving responsibilities for a child. The Equal Employment Opportunity Commission (EEOC) recently issued guidance about caregiver discrimination under federal law. While no federal employment law specifically bars discrimination on the basis of caregiver responsibilities, the EEOC identifies ways that such discrimination might still constitute unlawful discrimination. If you care for someone outside of your duties at work and have concerns that those responsibilities are impacting your status at the workplace, contact a New Jersey employment lawyer to discuss your situation.

The NJLAD prohibits discrimination against employees and job applicants on the basis of “familial status.” It defines this as having a “parent and child relationship” under state law, which includes biological parents, adoptive parents, foster parents, and other types of guardians. It also includes people who are pregnant and people who are working to gain legal custody of a minor child. Employers may not refuse to hire someone because of their familial status, nor may they fire them or subject them to other adverse employment actions on that basis.

New York City has one of the most expansive employment discrimination laws in the country. It goes farther than New Jersey law with regard to caregiver discrimination. A “caregiver,” under New York City law, includes a person with an obligation to care for a minor child. It also includes anyone who cares for a close relative or a person living in their household who depends on them “for medical care or to meet the needs of daily living.” The person must be providing “direct and ongoing care.”
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April 29, 2022

Employees of Major Retailer Vote to Unionize, Which Could Influence New Jersey Workers

by Resnick Law Group, P.C.

Labor unions have helped workers achieve significant improvements in pay and working conditions in New Jersey and across the county by enabling them to bargain collectively with their employers. Instead of each individual employee negotiating with their employer, employees can pool their resources and present a united front. Union membership has fallen over the past few decades for a variety of reasons, but this might be changing. As people return to the workforce after the economic slowdown caused by the COVID-19 pandemic, workers are asserting their rights to fair pay, safe work environments, and more. Employees of a major online retailer on Staten Island, for example, voted to unionize in early April 2022. While their employer is contesting the vote, the impact is already spreading to other workplaces, including many workers in New Jersey who have said they plan on holding votes to unionize. If you feel you have been subjected to unlawful practices in the workplace in violation of state or federal law, please contact a New Jersey employment lawyer today.

Section 7 of the National Labor Relations Act (NLRA) protects workers’ rights to engage in activities related to union organizing and collective bargaining. It also protects the rights of workers who do not want to join a union to refrain from these types of activities. Section 8(a) of the statute states that employers may not interfere with union organizing activities. In § 8(b), the statute prohibits unions from “restrain[ing] or coerc[ing]” employees with regard to organizing or membership. Section 9 establishes procedures for employees to vote on forming a union or joining an existing union, and for a union to become the employees’ official representative.

Collective bargaining agreements (CBAs) that require employers to hire union members, known as “closed shop” agreements, are invalid under the NLRA. Some states, known as “right-to-work” states, also prohibit “union shop” agreements, which require employees to join the union once they have been hired. At least twenty-eight states have some form of right-to-work laws as of early 2022. New Jersey is not among them. A CBA between a union and an employer in New Jersey may require union membership. This type of CBA addresses the “free rider” problem, in which employees who are not union members still benefit from the union’s work.
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April 22, 2022

What Does New Jersey Law Say About Discrimination Against Unemployed Job Applicants?

by Resnick Law Group, P.C.

New Jersey employment laws provide safeguards against policies and practices that may create unfair roadblocks in job searches. The New Jersey Law Against Discrimination (NJLAD), for example, prohibits employers from discriminating in hiring and other areas of employment on the basis of race, sex, religion, sexual orientation, disability, age, and other factors. An area of employment discrimination that might not receive as much attention as others is discrimination in hiring against unemployed workers. The longer an individual has been out of work, the more difficult it can be for them to find a job. New Jersey law provides some protection against this kind of discrimination, although it does not go as far as other anti-discrimination laws. If you believe you have experienced discrimination because you are currently unemployed, a New Jersey employment lawyer can look at all of the circumstances surrounding the incident to see if they could support a legal claim.

A study conducted by the Federal Reserve Bank of New York and published in 2016 examined how the length of time a person is without a job can affect their chances of finding a new job. It found that the longer the gap in employment history on a person’s resume, the lower their chances of getting calls from potential employers. Even when controlling for factors like level of education, the probability of finding a job still decreases as one’s length of time without a job increases.

The Fed study took looked at data from the years after the 2007-09 recession, which resulted in unemployment rates of up to ten percent. The COVID-19 pandemic has affected employment rates in ways that we still do not fully understand. Many people lost their jobs during the pandemic and are still trying to return to the careers they had before 2020. Unemployment discrimination can be a significant hurdle.
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April 22, 2022

Causes of Action for Criminal History Discrimination in New Jersey

by Resnick Law Group, P.C.

Criminal history can be one of the biggest stumbling blocks in the search for a job. Steady employment is a critically important factor in returning to normal life after a criminal conviction. Many employers, however, do not want to hire anyone with a criminal record, even if the specific details of a job applicant’s history would not affect the job they want to do. New Jersey’s Opportunity to Compete Act (OTCA) states that employers may not ask about criminal history until later in the hiring process. It does not offer as much protection for job applicants as similar laws in other states and cities. At the federal level, discrimination based on criminal history could be unlawful in certain circumstances. A New Jersey employment attorney can help you explore your options if you have experienced this kind of discrimination.

The OTCA only offers limited protection for job applicants with criminal records. It does not restrict how employers may act upon criminal history information once an applicant has made it past the initial stages of the hiring process. If an employer violates the statute, it does not expressly state that a job applicant may file a lawsuit for damage. Instead, it states that the only remedy for a violation is a civil penalty paid to the state.

The Third Circuit Court of Appeals considered a criminal history discrimination claim brought under the OTCA in a 2020 decision. The decision is one of the few to address criminal history discrimination in New Jersey, but it sheds little light on whether the OTCA allows private causes of action.
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April 7, 2022

Congress Takes a Step Towards Catching up with New Jersey on Hairstyle Discrimination

by Resnick Law Group, P.C.

Numerous states around the country have taken action to protect workers from discrimination on the basis of certain hairstyles that have a close connection to race or national origin. Many states have titled these bills the Create a Respectful and Open Workspace for Natural Hair Act, or CROWN Act. New Jersey passed its CROWN Act, which amended the New Jersey Law Against Discrimination (NJLAD), in late 2019. Title VII of the Civil Rights Act of 1964 does not specifically mention hairstyle discrimination as a form of race discrimination. On March 18, 2022, the U.S. House of Representatives passed a federal CROWN Act that will prohibit hairstyle discrimination nationwide if it becomes law. The U.S. Senate received the bill on March 22. If your employer has policies regarding appearance that conflict with your hairstyle, you may have a hairstyle discrimination claim. To learn more, reach out to a New Jersey employment lawyer as soon as possible.

Many employers have maintained policies regarding appearance that have particularly affected African-American workers and others with African ancestry. Policies that require a “professional” appearance often bar many hairstyles commonly associated with this group, including both natural and protective hairstyles. Complying with these workplace policies may require many employees to use expensive treatments to straighten their hair. Over time, these treatments can cause serious damage.

New Jersey’s CROWN Act amended the NJLAD’s definition of “race” to include “hair texture, hair type, and protective hairstyles,” along with other “traits historically associated with race.” The bill defined “protective hairstyles” to include “braids, locks, and twists.” Under New Jersey law, discrimination on the basis of hairstyles historically associated with race now constitutes race discrimination.
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March 25, 2022

How New Jersey Protects Against Discrimination on the Basis of Criminal History

by Resnick Law Group, P.C.

Criminal background checks are increasingly common in the hiring process. They often present a major stumbling block for people who are trying to put their lives together after a criminal conviction. Many employers simply refuse to hire anyone with a felony record, regardless of whether the offense has any relation to the job a person is seeking. Employment laws in New Jersey and other states are trying to rectify the situation. The New Jersey Legislature passed the Opportunity to Compete Act (OTCA) in 2014. Federal law does not include specific protections against discrimination based on criminal history, but several provisions of federal law can indirectly affect how employers conduct background checks on job applicants.

When it passed the OTCA, the state legislature recognized the importance of “[r]emoving obstacles to employment for people with criminal records.” It found that as many as 65 million people nationwide faced difficulty finding jobs because of their criminal records, and that up to ninety percent of employers use criminal background checks to some extent during the hiring process. Since having a job “significantly reduces the risk of recidivism” for people with criminal histories, the state legislature concluded that it had to act. The OTCA does not go as far as many similar laws, but it is a step in the right direction.

The OTCA is part of a group of laws passed by state and local governments around the country known as “Ban the Box” laws. The OTCA prohibits employers from asking New Jersey job applicants about criminal history at the beginning of the hiring process. The “box” refers to the “yes/no” checkbox found on many job application forms asking whether someone has ever been convicted of a criminal offense. Checking the box, which indicates that an applicant has one or more convictions, has often resulted in the application going directly into employers’ “rejected” piles.
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March 18, 2022

New Federal Law Bans Mandatory Arbitration and Class-Action Waivers in New Jersey Sexual Harassment Cases

by Resnick Law Group, P.C.

Courts in New Jersey and all over the country encourage parties involved in disputes to use alternative dispute resolution (ADR) procedures in order to keep dockets from getting excessively backlogged and free up court resources. Mandatory arbitration clauses are increasingly common in employment contracts. Many employees, as well as their legal advocates, dispute whether these clauses are truly voluntary since employees are often not in a position to negotiate those terms. They also maintain that arbitration tends to favor employers for various reasons. A new law, signed by the president in March 2022, amends the Federal Arbitration Act (FAA) to prohibit the enforcement of mandatory arbitration clauses when employees claim sexual harassment.

Arbitration is a form of ADR in which the parties to a lawsuit present their cases to a neutral third party. That person, known as an arbitrator, presides over a proceeding that resembles a trial in many ways. Data generally support the perception that arbitration favors employers. One possible reason for this is because, while an employee might only encounter an arbitrator once, their employer might have seen that arbitrator many times in other employment disputes. An arbitrator may feel pressure not to alienate a source of consistent business.

If all of the parties to a dispute agreed in advance that the arbitrator’s decision would be binding, the FAA protects the decision from judicial review. A party to the arbitration may petition a court to enforce the award. If the other party tries to challenge the validity of the award, however, the court may not vacate or modify it without evidence of fraud, duress, or misconduct by the arbitrator. This type of mandatory arbitration effectively shuts employees out of the court system.
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