The New Jersey Employment Law Firm Blog

October 8, 2021

New Jersey Federal Lawsuit Alleges Race Discrimination in Employment Background Checks

A criminal conviction can have long-lasting effects on a person’s life, even after they have completed their sentence. Many employers refuse to hire applicants with felony records, and sometimes even having a record of an arrest can work against a person. Numerous states, including New Jersey, have enacted laws that restrict the use of criminal history in hiring to various degrees. The goal is to help people restart their lives once they have “repaid their debt to society,” as the saying goes. New Jersey employment laws bar employers from asking about criminal history in the early stages of the hiring process. They are not the only safeguard for job seekers looking for a fresh start. The use of criminal history in hiring can lead to discrimination on the basis of race. A putative class action filed this summer in a New Jersey federal court makes this allegation against a national retail chain.

Laws that restrict employer inquiries about criminal history are informally known as “ban the box” laws, in reference to the checkbox on many job applications asking whether an applicant has a criminal record. New Jersey’s law does not go as far as other laws. It bars employers from asking applicants about criminal history during the “initial employment application process.” After that, employers may ask, and the law does not restrict how they may use the information they obtain. Laws in some other jurisdictions prohibit employers from discriminating against job applicants on the basis of criminal history, with exceptions when an applicant’s history is directly relevant to the job they are seeking.

Laws like Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD) prohibit discrimination on the basis of race. This includes both overt discrimination that treats members of one race differently from others, and “disparate impact” discrimination, in which a seemingly neutral policy or practice has a disproportionately negative effect on members of one race. A plaintiff claiming disparate impact discrimination does not need to prove that the employer intended to discriminate. They only need to show that the policy or practice was not reasonably necessary for the employer’s business operations, and that it negatively affected one race more than others.
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October 1, 2021

U.S. Justice Department Settles Discrimination Claims Against Two New Jersey Employers

by Resnick Law Group, P.C.

Federal law prohibits employers from discriminating against employees and job seekers on the basis of a variety of factors. Race, sex, and religion might be the most well-known categories protected by federal employment antidiscrimination law, but they are not the only ones. In addition to those three, Title VII of the Civil Rights Act of 1964 also bars discrimination based on color and national origin. Other federal statutes address discrimination on the basis of age, disability, and genetic information. The Immigration and Nationality Act (INA) of 1952 states that employers may not discriminate against employees and job applicants on the basis of national origin or citizenship status, provided that they are authorized to work in the U.S. Earlier this year, the U.S. Department of Justice (DOJ) announced that it had settled immigration discrimination claims against two New Jersey employers. If you have concerns about discriminatory practices in the workplace, reach out to a New Jersey employment discrimination lawyer as soon as possible.

Immigration law in the U.S. is quite complicated. In overly-simplified terms, people present in the U.S. can be described as belonging to one of five groups:
1. U.S. citizens;
2. Lawful permanent residents;
3. Nonimmigrant visa holders with employment authorization;
4. Nonimmigrant visa holders without employment authorization; and
5. Undocumented immigrants.
People enrolled in programs like Deferred Action for Childhood Arrivals (DACA) do not quite fit into these categories, since they may be authorized to work despite being considered undocumented. The key factor in the INA’s employment discrimination provisions is whether an individual can legally work in the U.S.

The INA states that employers with three or more employees may not discriminate on the basis of national origin or citizenship, with the exception that they may “prefer equally qualified citizens” over non-citizens. It is also unlawful for an employer to require “more or different documents” than those required to prove employment authorization under the INA, or to refuse to accept seemingly valid documents. Individuals may file a discrimination complaint with the DOJ. They may not, however, file a complaint of national origin discrimination with the DOJ if they have already filed a Title VII complaint with the Equal Employment Opportunity Commission alleging national origin discrimination.
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September 24, 2021

What New Jersey Workers Should Know About the White House’s COVID-19 Vaccination Order

by Resnick Law Group, P.C.

Vaccinations are among the most effective methods of fighting the COVID-19 pandemic, according to public health officials and other experts. The state government has established vaccination requirements for workers in certain fields. In early September 2021, the White House announced an upcoming measure that would direct large private employers to require their employees to get the vaccine or submit to weekly testing. This measure has not taken effect yet, and the actual rule might not be available for at least several more weeks. It is worthwhile to examine how this might affect New Jersey employees.

Current New Jersey Vaccine Requirements

New Jersey had no official vaccine mandates until late summer 2021. On August 2, the governor announced that certain workers would have to get vaccinated or get tested for COVID at least once a week. The governor’s order applies to state hospitals and correctional facilities, as well as private prisons, nursing homes, hospitals, inpatient rehab facilities, and home health agencies. These requirements took effect on September 7.

Additional vaccination requirements will take effect on future dates for employees in other workplaces, including:
– October 18: schools, state agencies, and public colleges and universities; and
– November 1: child care facilities.
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September 17, 2021

NLRB General Counsel Revises Enforcement Priorities for New Jersey and the Rest of the Country

by Resnick Law Group, P.C.

Since taking office in January of this year, the new presidential administration has made numerous changes to federal regulations intended to help New Jersey employees and others throughout the country. This includes adjustments by the National Labor Relations Board (NLRB) to its interpretation of federal labor law. The NLRB’s general counsel (GC), who is responsible for investigating alleged unfair labor cases and pursuing actions against employers, issued two memoranda in August 2021 outlining changes in procedures and priorities. One memorandum announces that the GC will be reviewing cases in which the NLRB overturned its own precedents in recent years. This could signal a new direction for the NLRB, which seems to have taken a pro-employer stance in many recent decisions. The second memorandum sets new enforcement priorities for the GC’s office.

Section 7 of the National Labor Relations Act protects employees’ right to organize themselves for the purpose of collective bargaining. This could include joining an existing union or forming a new one. The statute also protects workers who engage in “other concerted activities” related to organizing “or other mutual aid or protection.” Under § 8(a) of the statute, employers may not interfere with employees who are exercising any of these rights, nor may they discriminate or retaliate against employees who engage in protected or concerted activities.

Courts and the NLRB have interpreted “concerted activities” rather broadly at various times since the NLRA’s enactment in 1935. A 2019 decision by the NLRB, however, overruled an earlier decision that took an expansive view of “concerted activities.” The board stated at the time that it sought to overrule cases “that erroneously shield[] individual action” as opposed to concerted activities. In Memorandum GC 21-04, issued on August 12, 2021, the GC includes the 2019 decision and several others in a list of NLRB decisions addressing the definition of “concerted activity.” This is one of numerous areas of labor law where the GC intends to review the NLRB’s recent decisions.
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September 10, 2021

Labor Department Revises FLSA “Joint Employer” Rule for Workers in New Jersey and Nationwide

by Resnick Law Group, P.C.

Federal and New Jersey employment laws protect employees against a variety of actions by their employers, such as discrimination, retaliation, and failure to pay minimum wage or overtime. The Fair Labor Standards Act (FLSA) sets a nationwide minimum wage and establishes overtime compensation rules. For the FLSA and other statutes to apply, an employment relationship must exist between a worker and a business. When multiple individuals or businesses exercise authority over a worker, the “joint employer” rule states that each employer could be liable for wage and hour claims and other employment law violations. The U.S. Department of Labor (DOL) changed its rule regarding joint employment under the FLSA in 2020. This year, new management at the DOL rescinded the new rule and reverted to the old joint-employer rule.

What Is a Joint-Employer?

Joint employers each have control over the terms of an employee’s job, such as job duties, hours, and wages or salary. Examples of joint employment include:
– Business A contracts with Business B to provide services at Business B’s worksite. The contract states that Business B may determine the hours of work and other conditions for employees sent by Business A. Although Business A writes the paychecks, they may both be considered an individual’s “employers.”
– Business 1 operates a franchise under a contract with Business 2, the franchise owner. The franchise agreement gives Business 2 control over many or most of the terms and conditions of employment, while making Business 1 responsible for day-to-day HR matters.

What Is the Joint-Employer Rule?

The joint-employer rule states that the employers are jointly and severally liable for employment law violations. No single rule exists regarding joint employment. Instead, statutes or regulations establish a joint-employer rule for different laws. For the FLSA, the DOL established a rule holding that joint employment existed when:
– Employers have agreed to “share [an] employee’s services”;
– One employer is “acting directly or indirectly in the interest of” another employer regarding the employee; or
– One employer controls the other employer, or they are under “common control,” and they are “deemed to share control of the employee, directly or indirectly.”
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September 3, 2021

Commission Issues Guidelines on New Jersey’s Recreational Cannabis Law, but Leaves Employment Issues Out

by Resnick Law Group, P.C.

The New Jersey Legislature passed a law last year legalizing recreational cannabis. The governor signed it into law in February 2021. The Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) legalizes the possession and use of cannabis by people who are at least 21 years old. It also clarifies some issues related to employment law and establishes standards for workplace drug testing. In August 2021, the New Jersey Cannabis Regulatory Commission (NJCRC) issued guidelines on legal issues surrounding the personal use of cannabis. The guidelines do not address various employment issues, instead deferring them to a later date.

CREAMMA amends existing state law to include employment protections related to lawful cannabis use. Despite laws authorizing its use to varying degrees in most states, cannabis remains a Schedule I controlled substance under federal law. Many employers have continued to ban cannabis use by employees, even when they are not on the job, as part of broader “drug-free workplace” policies.

Earlier New Jersey cannabis laws legalizing its use did not provide any employment protection for individuals who used cannabis in compliance with the law, such as for medical purposes with a doctor’s prescription. Section 24:6I-52(a)(1), newly added by CREAMMA, bars employers from discriminating against employees based on both legal cannabis use and refusal to engage in legal cannabis use. They are also barred from discriminating against an employee because of “the presence of cannabinoid metabolites in the employee’s bodily fluid,” when this is the result of lawful conduct.
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August 27, 2021

How an NLRB Ruling on Post-COVID Firing Could Affect New Jersey Workers

by Resnick Law Group, P.C.

The economy is slowly recovering from the worst of the COVID-19 pandemic in New Jersey and all around the country. Millions of people lost their jobs in the early months of the pandemic in 2020. Congress allocated money to help employers keep paying their employees even if they were not open for business. At the same time, many employees voiced concerns about workplace safety, such as the availability of personal protective equipment (PPE) to help prevent the spread of the coronavirus. The National Labor Relations Board (NLRB) has tended to side with employers over workers seeking better protections against COVID. In June 2021, however, the NLRB ruled in favor of a former barista who alleged that her employer fired her in retaliation for advocating for workplace safety and other issues. Since the ruling was a default judgment, it is not clear to what extent it will affect other similar cases.

The NLRB adjudicates disputes under the National Labor Relations Act (NLRA). Section 7 of this statute protects workers’ rights to organize, form or join a labor union, and engage in other “concerted activities” related to self-organization or “mutual aid.” Section 8(a) identifies “unfair labor practices” by employers. It states that an employer may not “interfere with, restrain, or coerce employees” who are exercising rights protected under § 7. An employer also may not retaliate against an employee, such as by firing them, for asserting their legal rights.

The employer in the recent NLRB ruling operates several coffee shops. The COVID-19 pandemic forced it to close in early 2020, but it was able to reopen by late spring of that year. During that time period, several employees, including the head barista at one location, began corresponding on social media regarding concerns about their workplace. According to the NLRB’s ruling, their concerns involved “communication, wages, recall rights, and worker safety.” They began to circulate a petition through social media in May 2020.
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August 23, 2021

New Jersey Lawsuits Allege Same-Sex Sexual Harassment by Police Lieutenant

by Resnick Law Group, P.C.

Sexual harassment is a serious problem in workplaces throughout New Jersey and the country. New Jersey law views it as a form of sex discrimination. While perhaps the most common image of New Jersey workplace sexual harassment involves a male supervisor or manager acting offensively towards a female employee, it can occur between people of any gender. A pair of lawsuits filed in a New Jersey Superior Court earlier this summer allege same-sex sexual harassment. The plaintiffs are male police officers. They both claim that their supervisor, a male police lieutenant, subjected them to ongoing sexual harassment.

The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination on the basis of sex, sexual orientation, race, and multiple other factors. Numerous court decisions have held that sexual harassment constitutes sex discrimination under the NJLAD and other statutes in several situations. One of these, known as “hostile work environment,” occurs when an employee faces unwelcome conduct of a sexual nature in the workplace, which is so severe or pervasive that it interferes with their ability to do their job.

The first court cases to recognize sexual harassment as a form of sex discrimination involved male supervisors harassing female employees. In a 1998 decision, Oncale v. Sundowner Offshore Services, the U.S. Supreme Court recognized that male-on-male sexual harassment can also violate employment discrimination laws. The case involved a worker on an offshore oil drilling rig who faced repeated acts of humiliation by his coworkers, ranging from mockery about his perceived sexual orientation to outright assault. A unanimous court held that “harassing conduct” based on sex could violate the law even if it was not “motivated by sexual desire.”
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August 6, 2021

NLRB Withdraws Proposed Rule Affecting Student Employees at Colleges and Universities in New Jersey and Nationwide

by Resnick Law Group, P.C.

Under the National Labor Relations Act (NLRA), employers may not interfere with or restrain New Jersey employee activities or those occurring elsewhere in the country that involve self-organizing for the purpose of engaging in collective bargaining. Employees may join an existing labor union or form one of their own without retaliation from their employers. In order for the NLRA’s protections to apply, a worker must be an “employee” within the statute’s meaning. In 2016, National Labor Relations Board (NLRB) ruled that student employees at private colleges and universities in New Jersey and around the country are “employees” under the NLRA. A proposed rule first published in 2019 would have changed the definition to exclude student workers. The NLRB withdrew the proposed rule in March 2021, so the 2016 ruling remains in effect.

Section 2(3) of the NLRA, codified at 29 U.S.C. § 152(3), offers a rather circular definition of “employee.” It does not state what an employee is. Instead, it provides that an individual is not excluded from being an “employee” for various reasons, such as if they lost their job due to an “unfair labor practice” or “current labor dispute.” An NLRB regulation adopted in 1970, 29 C.F.R. § 103.1, states that the NLRB may assert jurisdiction over claims involving private colleges and universities with at least $1 million in gross annual revenue.

The NLRB has ruled several times since 1970 on the question of whether students who work for the colleges and universities they attend should be considered “employees” under the NLRA. For thirty years, it excluded student workers from the definition of “employee,” but in 2000 it ruled that graduate student assistants should be included. It reversed its own decision in 2004, finding that graduate student assistants were students before they were employees. In 2016, it not only reversed its 2004 decision, but also expanded the definition to include both graduate and undergraduate student assistants.
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July 30, 2021

New Jersey Workplace Safety Laws and the COVID Vaccine

by Resnick Law Group, P.C.

We are now almost a year and a half into the COVID-19 pandemic, and while the situation has improved considerably, we still face many problems. Several different vaccines are now available to most of the population, and they have shown that they are very effective against the early strains of the virus. Like all vaccines, though, they are not 100% effective. As of mid-July 2021, nearly seventy percent of adults in New Jersey are fully vaccinated. In some areas of the state, however, the rate remains below fifty percent. This raises two major questions for us as employment lawyers. First, what does New Jersey law have to say about employers that require their employees to get vaccinated? The answer to this question has changed over the last year, but it appears to be resolving in favor of employer vaccine mandates. The second question is whether a New Jersey employer that does not require vaccines violates workplace safety laws. This question does not have a clear answer.

Employer Vaccine Mandates

The only specific vaccine requirement found in New Jersey’s statutes, N.J. Rev. Stat. § 26:2H-18.79, involves the influenza vaccine. It requires healthcare workers to get the influenza vaccine annually. Employees cannot opt out of the flu vaccine, except for certain medical reasons.

State health officials are taking the position that employers can mandate vaccination for COVID. Guidance issued by the New Jersey Department of Health in March 2021 states that employers can require employees to get the vaccine as a condition of returning to the workplace, with three exemptions:
1. A disability that precludes an employee from getting the vaccine;
2. A doctor’s recommendation not to get the vaccine during pregnancy or breastfeeding; or
3. A “sincerely held religious belief, practice or observance.”
An employer must provide a reasonable accommodation to an employee who falls under one of these exemptions, unless doing so would pose an undue burden.
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