The New Jersey Employment Law Firm Blog

May 20, 2024

Federal Judge Vacates NLRB’s Joint Employer Rule

“Joint employer” rules help workers and their advocates in situations where more than one person or entity exercises control or authority over a worker. New Jersey employment laws establish obligations that employers owe to their employees. To assert a claim for damages under these laws, an employee must identify which employer or employers have those legal obligations. This issue can arise in disputes over labor rights under the National Labor Relations Act (NLRA), such as when an employee receives a paycheck from one company but works at a site operated by another company under a contract between the two companies. Joint employer rules allow workers to hold employers jointly and severally liable for unlawful practices. The National Labor Relations Board (NLRB) issued a final rule in late 2023 establishing a new standard for joint employment under the NLRA. In March 2024, however, a federal judge vacated the rule.

The NLRA protects employees’ rights to organize themselves, bargain collectively with their employers, and engage in other activities related to advocating for their rights and protecting their interests. Employers may not interfere with or retaliate against employees who are engaging in protected activities. Like many employment laws, the statute only briefly defines “employer,” leaving it to the NLRB to go into detail.

The NLRB’s joint employer rule looks at the amount of control an alleged employer has over a worker’s “essential terms and conditions of employment” (ETCEs). This includes issues like wages or salary, job assignments, supervision, workplace safety, and employment policies. In 2020, the NLRB adopted a rule that would only deem an entity a joint employer if it had “substantial direct and immediate control over one or more” ETCEs. This presents a fairly high bar for employees, which the NLRB sought to address with a revised rule.
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May 10, 2024

New Jersey Jury Awards $1 Million in National Origin Discrimination Lawsuit

by Resnick Law Group, P.C.

Discrimination based on a person’s national origin violates New Jersey employment laws. This includes discrimination in decisions related to hiring, promotions, job duties, benefits, firing, and other features of employment. It also includes harassment based on national origin, such as when unwelcome remarks, jokes, slurs, or other conduct creates a hostile work environment. Employers may not retaliate against an employee who reports or opposes national origin discrimination in the workplace. A lawsuit went to trial earlier this year in which a plaintiff alleged national origin discrimination based on her accent. In early March, a jury in an Essex County Superior Court awarded her $1 million in damages.

The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination based on numerous factors, including national origin, ancestry, race, and color. This includes both actual and perceived national origin, as well as stereotypes about one’s national origin. The Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination law, states that the following may constitute unlawful national origin discrimination:
– Discrimination based on a person’s accent when their manner of speech does not interfere with their job;
– Language fluency requirements that are not reasonably related to the job; and
– English-only rules that are not necessary for workplace safety or efficiency.

The plaintiff in the Essex County lawsuit was born and raised in Romania. According to her complaint, she and her husband immigrated to the United States in 2000 and became naturalized citizens in 2005. She states that she began studying English in the second grade. She obtained a master’s degree from a New Jersey school, with all instruction taking place in English. She states that she began working for the defendant in 2012 and that her employment went well for several years.
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May 3, 2024

New Jersey Bills Would Regulate the Use of AI in Employment Decisions

by Resnick Law Group, P.C.

Employers have begun relying on various artificial intelligence (AI) tools to streamline the hiring process and other aspects of the employment relationship. While the marketing for these tools sometimes claims that they can perform certain tasks better than humans, experience demonstrates that they are not free of many human biases. Humans programmed the AIs, after all, and may have included their own biases in the code. Two pending bills would amend New Jersey employment law to regulate the use of these tools in the hiring process. One would require “bias audits” of AI-based analytical tools. The other bill deals specifically with AI tools that analyze video interviews of job applicants.

The Use of AI in Hiring

The term “artificial intelligence” can refer to several types of software applications. Generative AI, for example, can create written or visual works based on user prompts. Employers use analytical AI tools to go through large amounts of data and make recommendations or decisions. For example, an AI system could screen job applicants based on whatever factors employers choose. This is the source of much of the concern about AI in employment decisions. Employers are ultimately liable for bias in an AI tool’s algorithm.

Automated Employment Decision Tools

A3854, introduced in the New Jersey Assembly on February 22, 2024, would regulate companies that produce and sell “automated employment decision tools” (AEDTs), as well as the employers that use them. The bill defines an AEDT as a system that uses statistical theory or a learning algorithm to filter job applicants or employees in a way that “establishes a preferred candidate or candidates.” Any AI system that screens job applicants would fit this definition.
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April 29, 2024

New FTC Rule Bars Non-Compete Agreements in New Jersey and Nationwide

by Resnick Law Group, P.C.

When an employee leaves a job, either by their own decision or their employer’s, their ability to get another job in the same field might depend on whether they signed a non-compete agreement with their most recent employer. This type of agreement limits workers’ employment options, arguably to protect the employer’s business. Workers might sign a non-compete agreement as part of their original employment contract or at a later date. New Jersey employment law restricts the enforceability of these agreements, but a new rule from the Federal Trade Commission (FTC) might go much further than state law. The FTC published a final rule in late April 2024 that bans most non-compete agreements nationwide. The rule has not taken effect yet, and it will face legal challenges that could delay its effective date.

What Is a Non-Compete Agreement?

A non-compete agreement is a contract that restricts an employee from accepting a job from a competitor of the employer after their employment relationship ends. It may also bar an employee from starting a competing business.

Employers might view non-compete agreements as a way to protect the investments they make in training employees. An employer’s competitors cannot benefit from the knowledge and experience their employees have acquired. For employees, however, overbroad non-compete agreements can significantly interfere with their ability to find a job in their chosen career.
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April 16, 2024

Proposed Regulations Would Target Salary History Discrimination by Federal Contractors

by Resnick Law Group, P.C.

New Jersey employment law prohibits employers from screening job applicants based on their salary history. Employers also may not require applicants to provide salary history information. The law helps job seekers overcome historical disparities in pay. It requires employers to base new hires’ pay on the market rate for their labor rather than their previous salary or wages. The law includes an exception for situations where a federal law or regulation requires job applicants to disclose salary history, or employers to verify that information. This exception might not be an issue much longer for many situations governed by federal law. In January 2024, the Federal Acquisition Regulatory (FAR) Council published proposed regulations in the Federal Register that would prohibit federal contractors from asking job applicants for salary information or using salary history to screen applicants.

A 2019 New Jersey law addresses how employers may use salary history during the hiring process. Employers may not require applicants to provide information about past wages or salary. They may not use that information in hiring decisions. If, however, an applicant provides such information voluntarily, “without employer prompting or coercion,” the employer may consider that information when determining that individual’s “salary, benefits, and other compensation.”

Employers who violate the 2019 law may face civil penalties, payable to the state, that start at $1,000 for a first violation. A second violation carries a $5,000 fine, and a third may result in a $10,000 fine. If a job applicant is part of a protected group under the New Jersey Law Against Discrimination, they may also have the right to sue for violations of the salary history law.
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April 9, 2024

NLRB Rules That Social Justice Messages Are Protected Concerted Activity

by Resnick Law Group, P.C.

Federal and New Jersey employment laws protect workers’ rights to engage in a wide range of “concerted activities” intended to improve conditions for workers, both in the workplace and society at large. These protections extend beyond activities that are directly related to union organizing and collective bargaining. In February 2024, the National Labor Relations Board (NLRB) ruled that federal law protects the display of certain social justice messages in the workplace. A customer-facing employee at a big-box retail store wrote “BLM,” the initials for “Black Lives Matter,” on his employer-issued apron. The employer considered this a violation of its dress code policy. The NLRB held that the employer violated the law by instructing the employee to remove the marking on his apron.

Section 7 of the National Labor Relations Act (NLRA) states that employees have the right to engage in activities related to self-organization and collective bargaining. It also states that they have the right “to engage in other concerted activities for the purpose of…mutual aid or protection.” The meaning of “concerted activities” is not limited to activities that involve two or more employees. An individual employee may engage in protected concerted activities, according to NLRB precedents, in several situations, including:
– They are acting with other employees’ approval;
– They are bringing a group complaint to management’s attention; or
– Their activity is a “logical outgrowth” of past concerted activity.

Employers commit an unfair labor practice under § 8 of the NLRA when they “interfere with, restrain, or coerce employees” who are trying to exercise their § 7 rights. They also violate the law if they fire an employee or take other adverse actions against them for engaging in protected activities.
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April 1, 2024

U.S. Supreme Court Ruling Takes Employee-Friendly View of Whistleblower Law

by Resnick Law Group, P.C.

When a business engages in fraudulent, unlawful, or criminal activities, employees with inside knowledge of those activities are often the best source of information and evidence. Employees who object to their employers’ conduct might not want to come forward, though, if they could lose their jobs or suffer other employment consequences as a result. New Jersey employment laws at the state and federal levels work to protect these employees, commonly known as “whistleblowers,” by holding employers liable for retaliation. The U.S. Supreme Court recently ruled in Murray v. UBS Securities, a whistleblower case brought under the Sarbanes-Oxley Act of 2002 (“SOX”). This is a federal statute that applies to the financial sector. The court affirmed a trial court’s ruling in the employee’s favor and clarified the burden of proof under the statute.

Congress enacted SOX in response to a series of corporate scandals. The statute addresses recordkeeping and financial disclosure by publicly-traded corporations. It imposes civil and criminal penalties for violations and provides whistleblower protections to encourage employees to report concerns. It prohibits retaliation against employees who engage in certain activities, including:
– Assisting or participating in an internal investigation of suspected wrongdoing under federal fraud statutes or securities regulations;
– Assisting or participating in an investigation by the Securities and Exchange Commission (SEC), Congress, or another federal agency involving alleged fraud or securities violations; and
– Filing a complaint with the SEC.

An employee who alleges unlawful retaliation may bring a lawsuit against their employer after filing a complaint with the Secretary of Labor. The plaintiff has the burden of making “a prima facie showing that [their protected conduct] was a contributing factor in the unfavorable personnel action.” The defendant can obtain dismissal of the lawsuit if it can “demonstrate[], by clear and convincing evidence, that [it] would have taken the same unfavorable personnel action in the absence of that behavior.” This burden of proof was a significant part of the dispute before the Supreme Court in Murray.
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March 22, 2024

Bill in New Jersey Legislature Would Codify Legal Standard for Workplace Harassment Claims

by Resnick Law Group, P.C.

Workplace harassment based on a protected category, such as sex, race, or religion, violates New Jersey employment laws. Under current state law, the legal standards for asserting harassment claims are mostly based on caselaw rather than statutes. A bill pending in the New Jersey Legislature, A2443, would amend the New Jersey Law Against Discrimination (NJLAD) to add a definition of workplace harassment and the legal standard for making a claim. The bill would codify much of the New Jersey Supreme Court’s hostile work environment standard and disavow several court rulings on harassment claims under the NJLAD. It would also set new requirements for employers, including harassment policies and staff training.

The pending bill primarily addresses hostile work environment claims. It includes legislative findings that cite three New Jersey Supreme Court decisions from 1993, 1998, and 2007. These decisions established a test for proving a hostile work environment claim:
– The conduct was based on a protected category.
– It was “severe or pervasive.”
– A reasonable person who belongs to the affected category would believe that the workplace is hostile enough to alter the conditions of employment.
The bill also cites Justice Ginsburg’s concurring opinion in the U.S. Supreme Court’s 1993 decision in Harris v. Forklift Systems. She stated that a plaintiff does not need to prove that the harassment negatively impacted their work performance. They only need to show that it became “more difficult to do the job” because of the harassment.

The bill also disapprovingly cites three decisions that limit the “severe or pervasive” standard. In 2008, the New Jersey Supreme Court held that harassment claims should be “described in sterile terms, stripped of the overlay of [the plaintiff’s] subjective reactions.” It further held that the alleged conduct “was one of the socially uncomfortable situations that many women encounter in the course of their lives.” In a 2011 decision, the Third Circuit Court of Appeals affirmed a lower court decision holding that repeated unwelcome romantic calls, texts, and emails by a supervisor did not create a hostile work environment. The Third Circuit ruled in 2013 that intentional groping by a supervisor did not meet the “severe or pervasive” standard.
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March 15, 2024

New Jersey Lawsuit by Former University President Alleges Discrimination, Sexual Harassment, and Retaliation

by Resnick Law Group, P.C.

Employment disputes can often become quite complicated. Multiple issues and complaints can combine to create an untenable situation, or one grievance can turn into many. Workplace discrimination, for example, can lead to retaliation for opposing or reporting that discrimination. New Jersey employment law protects workers against numerous types of adverse actions by employers. A lawsuit filed in a New Jersey state court last month presents a complicated series of allegations, including sexual harassment, hostile work environment, and retaliation. It also alleges discrimination based on association with an individual who reported alleged wrongdoing.

The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination based on sex and numerous other factors. This includes sexual harassment that creates a hostile work environment. The law protects people who have experienced unlawful acts but fear for their jobs if they come forward. Employers may not retaliate against someone because they “opposed any practices or acts forbidden under this act.” Employees have similar protections in the Conscientious Employee Protection Act (CEPA). This law prohibits retaliation against employees for reporting suspected wrongdoing by an employer.

The lawsuit described above also alleges “associational discrimination.” This cause of action derives from a 1995 decision by the New Jersey Supreme Court. The plaintiffs in that case were co-workers and relatives of an employee who had previously sued their employer under the NJLAD for retaliation. They alleged that the employer had retaliated against them because of their association with that individual. The court held that this was a valid NJLAD cause of action.
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March 8, 2024

How Federal Law Protects New Jersey Servicemembers’ Employment Rights

by Resnick Law Group, P.C.

Service in the U.S. military and other uniformed services can mean a great deal of uncertainty. People who serve in the National Guard or Armed Forces Reserves have training obligations and may find themselves called to active duty. This can cause difficulties with employment in both the private sector and non-military government jobs. New Jersey employment law prohibits employers from discriminating based on military service obligations, but its protections only cover mandatory service in the Armed Forces. Federal law goes further by addressing servicemembers’ ability to return to their jobs after their service ends. The Uniformed Services Employment and Reemployment Rights Act (USERRA) turns thirty this year, having become law in October 1994. It offers important protections for New Jersey servicemembers.

Who Does USERRA Cover?

USERRA applies broadly to people on active or inactive duty in any of the uniformed services of the United States. This includes the six branches of the Armed Forces: the Air Force, Army, Coast Guard, Marine Corps, Navy, and Space Force. It also includes the Commissioned Corps of the Public Health Service and the National Oceanic and Atmospheric Administration. The Surgeon General, for example, is an officer with the Public Health Service.

In contrast, New Jersey’s antidiscrimination law only applies to mandatory active duty service in the Armed Forces. This includes service in a National Guard or Reserve unit and induction through a draft.
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