The New Jersey Employment Law Firm Blog

September 17, 2021

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

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.
Continue reading

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.”
Continue reading

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.
Continue reading

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.
Continue reading

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.”
Continue reading

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.
Continue reading

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.
Continue reading

July 26, 2021

Recent NLRB Decision Could Impact Union Representation for New Jersey Workers

by Resnick Law Group, P.C.

Labor organizing has helped workers in New Jersey and around the country achieve better pay and improved working conditions for over a century. The National Labor Relations Act (NLRA) of 1935 protects workers’ right to engage in activities related to organizing and collective bargaining. The National Labor Relations Board (NLRB) is charged with certifying labor unions and adjudicating disputes under the NLRA. A decision issued in March 2021 by the NLRB could be of note for those involved in New Jersey employment law matters. The board decided to retain the “contract bar rule,” which limits the time for filing any petition that challenges a union’s status while a collective bargaining agreement (CBA) is in force.

Section 7 of the NLRA protects the rights of workers to “self-organization” and other labor organizing activities. Section 9(a) states that, once a majority of employees in a particular “unit,” have selected representatives for collective bargaining, they are the “exclusive representatives” for the employees in that unit. A union can lose its status as representative through a decertification petition filed with the NLRB. If at least thirty percent of the employees in a unit sign on to a petition to decertify the union, § 9(e) directs the NLRB to conduct a secret-ballot election of all employees to see if they favor decertification.

The contract-bar rule states that a petition to decertify a union cannot be filed during the first three years of a CBA, with two exceptions. First, a petition can be filed at any time if the CBA has a “union security clause” that “clearly” violates § 8(a)(3) of the NLRA. A CBA cannot require all of the employees in a unit to pay union dues unless it gives each employee a thirty-day grace period after their employment begins. A CBA that does not include the thirty-day period could be found invalid.
Continue reading

July 19, 2021

EEOC Issues New Guidance on Sexual Orientation and Gender Identity Discrimination Under Title VII

by Resnick Law Group, P.C.

Title VII of the Civil Rights Act of 1964 prohibits discrimination by employers on the basis of sex and other factors. Compared to New Jersey employment discrimination law (the New Jersey Law Against Discrimination), Title VII’s list of protected categories seems short. Federal court decisions have expanded the scope of the statute beyond the narrowest literal meaning of its words, to include categories or actions mentioned more specifically in other laws. Most recently, a 2020 decision by the U.S. Supreme Court held that Title VII’s prohibition on sex discrimination includes discrimination on the basis of sexual orientation and gender identity. In June 2021, the Equal Employment Opportunity Commission (EEOC) released guidance clarifying its interpretation of Title VII in light of the court’s ruling.

Federal law does not provide a specific definition of “sex” in the context of employment discrimination. The Supreme Court has built on the statute’s rather sparse language in several important rulings. In 1986, for example, the court ruled in Meritor Savings Bank v. Vinson that sexual harassment constitutes sex discrimination in violation of Title VII. That case involved sexual harassment of a female employee by a male supervisor. The court ruled in Oncale v. Sundowner Offshore Services in 1998 that sexual harassment of a man by male employees may also violate Title VII.

The Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins expanded the understanding of sex discrimination by holding that Title VII bars discrimination on the basis of “sex stereotyping.” The plaintiff in that case claimed that the defendant discriminated against her because she did not conform to expectations of how she should dress and behave as a woman. This decision did not lead directly to last summer’s ruling in Bostock v. Clayton County, but it set an important precedent.
Continue reading

July 9, 2021

New Jersey Senate Passes Bill Dealing with Sexual Harassment in Political Campaigns

by Resnick Law Group, P.C.

New Jersey employment discrimination law prohibits sexual harassment in almost every workplace in the state, but it still remains a serious problem. Lawmakers in Trenton introduced a bill at the beginning of 2021 that sought to address sexual harassment in political campaigns. After several revisions and amendments, the New Jersey Senate passed the bill in June 2021. A companion bill, introduced in the Assembly in February 2021, is still awaiting a committee hearing.

Sexual harassment is viewed under state and federal law as a form of unlawful discrimination on the basis of sex. Court decisions interpreting statutes like the New Jersey Law Against Discrimination (NJLAD) and Title VII of the Civil Rights Act of 1964 have identified two broad categories of actionable sexual harassment:
– “Quid pro quo sexual harassment” occurs when a person must submit to some sort of sexual demand as a condition of employment, such as a manager who hands out favorable shift assignments or other perks to employees who agree to sexual activity.
– “Hostile work environment” involves unwelcome conduct of a sexual nature in the workplace, which is pervasive or severe enough that a reasonable person would find it to be hostile and incompatible with a safe workplace.

Both statutes also prohibit employers from retaliating against employees who oppose or report unlawful practices. While these laws protect a wide range of workers, sexual harassment in the political realm can be complicated. Title VII excludes the federal government itself from liability for discrimination and harassment, but other statutes allow claims against government employees, and even elected officials. See, e.g. 42 U.S.C. § 2000e(b)(1), 2 U.S.C. § 1311. The NJLAD, on the other hand, includes “the State…and all public officers” in its definition of “employer.” N.J. Rev. Stat. § 10-5:5(e).
Continue reading