The New Jersey Employment Law Firm Blog

January 9, 2024

New Tax Law Could Affect Remote Employees of New Jersey Employers

Employee paychecks are subject to some quite complicated regulations, particularly when it comes to what employers may, may not, and must withhold from employee pay. Perhaps the most well-known form of withholding is for Social Security and Medicare, commonly known as payroll taxes, and federal income tax. States that maintain their own income tax may require employers to withhold that as well. New Jersey is among those states. When employment relationships cross state lines, withholding requirements can get even more confusing. New Jersey employment laws give workers some remedies for unlawful paycheck deductions, but this does not necessarily cover errors involving tax withholding. A new law passed by the state legislature addresses New Jersey income tax withholding for out-of-state remote workers based on a rule known as the “convenience of the employer.”

New Jersey employers may withhold money from employee paychecks when required to do so by state or federal law, such as for federal income tax. They may withhold funds from paychecks for any other purpose only when the employee has authorized it in writing. Authorization can come from an individual employee or a collective bargaining agreement with an authorized representative.

Unauthorized deductions from employee paychecks can result in penalties that include fines and jail time. Employees may also bring a civil lawsuit to recover the amounts unlawfully withheld, plus three times that amount as liquidated damages, court costs, and attorney’s fees. This provision of New Jersey law does not apply to tax withholding errors made by an employer. An employee whose employer fails to withhold the correct amount of income tax will be liable to pay the correct amount. It might, however, be possible to raise the employer’s error as a defense to the assessment of late payment penalties.
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January 5, 2024

Bill in New Jersey Legislature Would Require Pay Transparency

by Resnick Law Group, P.C.

Employment discrimination can take many forms, some of which are practically invisible to anyone who does not have access to an employer’s books. Pay disparities based on factors like sex or race are still common in many workplaces. Laws like the federal Equal Pay Act (EPA) attempt to address gender-based wage gaps, and antidiscrimination laws can help take on pay disparities based on other factors. Some employers maintain policies that make addressing wage gaps difficult, such as by leaving pay information out of job listings. Advocates for fair pay need this information to identify where wage gaps are occurring. Pay transparency laws attempt to rectify this issue by requiring disclosure of wage rates. New Jersey employment law currently does not include pay transparency provisions, but a bill pending in the state legislature could change that.

Many wage gaps are not intentional, meaning they did not result from conscious decisions by current managers to pay certain employees less than other employees who work the same or similar jobs. Instead, many pay disparities reflect a long history of discrimination that goes back to a time when employers did make conscious decisions to discriminate. Women, for example, often received lower pay than men based on gender stereotypes. This created a longstanding practice of paying women less than men for the same work that persists to this day. Race-based wage gaps are also very common, resulting in pay disparities that affect women of color more than most other groups.

The EPA and the New Jersey Law Against Discrimination (NJLAD) both prohibit pay discrimination based on factors like sex. The NJLAD goes further and covers every protected category, including race, color, and national origin. It also protects employees from retaliation for asking other employees how much they make or disclosing their pay rate to others.
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December 22, 2023

White House Declares Policy Regarding Use of AI in Employment Decisions in New Jersey and Nationwide

by Resnick Law Group, P.C.

Employers are increasingly relying on tools that use artificial intelligence (AI) for various employment-related purposes. AI tools can be useful for tasks that require sifting through large amounts of information, such as the hiring process. New Jersey employment laws set limits on employers when they are making hiring decisions. Employers may not, for example, screen job candidates based on protected categories like disability, genetic history, or pregnancy. Employers are liable for these types of hiring decisions even when they outsource them to someone else. This includes AI tools, but the law in New Jersey remains unclear on how laws against employment discrimination apply to virtual decision-makers. The White House recently issued an executive order (EO) providing directives to various executive agencies regarding AI. These include instructions to agencies that enforce federal employment laws to review current AI practices with the goal of “ensur[ing] that AI deployed in the workplace advances employees’ well-being.”

The New Jersey Law Against Discrimination (NJLAD) prohibits employers from taking various adverse actions against job applicants and employees solely based on factors like race, religion, sex, sexual orientation, disability, and others. This includes refusing to consider someone for employment because of a protected category. Many of the categories identified by the NJLAD have historically served as the basis for countless adverse hiring decisions.

One concern about the use of AI in screening job applicants and assisting in hiring decisions is that human biases, whether consciously held or not, could become part of the software’s algorithms. Neither federal nor New Jersey employment laws currently address this concern. New York City enacted a bill several years ago that requires periodic “bias audits” for AI-based tools that employers use in the hiring process. This process involves reviewing AI tools to see if they have any sort of disparate impact on members of protected categories. Lawmakers introduced a similar bill in the New Jersey Assembly in December 2022, but it has not advanced beyond its initial committee assignment.
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December 15, 2023

NLRB Complaint Alleges Unlawful Firing by Social Media Company

by Resnick Law Group, P.C.

Employees’ ability to communicate with one another about working conditions and other workplace concerns is essential to their ability to assert their legal rights. Both federal and New Jersey employment laws prohibit employers from interfering with employee efforts to organize and communicate about important work-related matters. In late 2022, a major social media company fired an employee after he posted a message to the company’s platform that related to a change in management that was ongoing at the time. In October 2023, the National Labor Relations Board (NLRB) filed a complaint alleging that the company broke the law by firing the employee. The case could impact New Jersey employee rights, depending on how far it goes in the administrative law system. At a minimum, the case offers a useful look at how social media usage affects workers’ rights.

The National Labor Relations Act (NLRA) has protected workers’ right to organize themselves for collective bargaining purposes for almost ninety years. Section 7 of the statute goes beyond collective bargaining to protect a much wider range of “concerted activities for the purpose of…mutual aid or protection.” Under § 8(a)(1) of the NLRA, employers may not “interfere with, restrain, or coerce employees” who are exercising their § 7 rights.

Workers who believe their employer has violated their rights under the statute can file a charge with the NLRB. The agency will investigate the charge and decide on its merits. If it finds that a charge has merit, it will attempt to get the parties to agree on a settlement. The NLRB’s regional directors have the authority to file complaints when parties cannot reach settlements.
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December 8, 2023

How Religion, Race, and National Origin Can Intersect in New Jersey Employment Discrimination Cases

by Resnick Law Group, P.C.

New Jersey employment law protects workers from discrimination on the basis of numerous factors, such as race, religion, sex, disability, and national origin, to name only a few. In some cases, an employer’s unlawful actions clearly violate someone’s legal rights based on one of the protected categories identified in state and federal law. The categories can blur together in other cases, though. This can create confusion. It can also lead people to overlook claims that they might have under state and federal antidiscrimination laws. Some types of bias and discrimination can span multiple categories, including race, color, religion, and national origin. New Jersey employees should be aware of their rights when it comes to these types of issues.

Both the New Jersey Law Against Discrimination (NJLAD) and Title VII of the Civil Right Act of 1964 specifically identify race, color, religion, and national origin as protected categories. This means that employers may not take adverse actions against employees or job applicants on the basis of any of these factors. This includes refusing to hire someone, demoting them, firing them, or denying them opportunities to advance their careers. Employers may have to make reasonable accommodations for employees’ religion observances, as long as doing so does not create an undue burden.

Title VII does not provide definitions for the terms “race,” “color,” or “national origin.” It defines “religion” as including “all aspects of religious observance and practice.” The NJLAD does not define “religion,” “color,” or “national origin.” Its definition of race includes the common understanding of that term along with “traits historically associated with race,” such as hairstyles and types of hair.
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November 30, 2023

How “Quiet Firing” Might Violate New Jersey Employment Laws

by Resnick Law Group, P.C.

The term “quiet quitting” gained traction on social media in 2022, and debates over whether or not it is a real phenomenon have continued throughout 2023. It generally involves employees who are unwilling to do more than what their job description specifically requires. A related concept, “quiet firing,” has also emerged. It involves an employer that, rather than directly firing an employee, takes adverse actions that drive the employee to the point of resigning. While “quiet firing” might be a new term, it is not a new concept in New Jersey employment law. Constructive discharge, in which an employer makes working conditions so intolerable that an employee feels they have no choice but to quit, may violate laws against wrongful termination, discrimination, harassment, and retaliation.

What Is “Quiet Firing”?

The Harvard Business Review (HBR) defines “quiet firing” as the practice of “intentionally creat[ing] a hostile work environment that encourages people to leave voluntarily.” This arguably saves the employer money on severance and unemployment benefits.

This is hardly new to the workplace. Individual managers and supervisors have long used these kinds of tactics to drive out employees for various reasons. The HBR, however, suggests that some employers are now being more systematic about it. It notes studies from the past few years that show growing numbers of employees who leave their jobs for reasons like “feeling disrespected.”
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November 17, 2023

New Jersey Attorney General Settles Disability Discrimination Claim Related to COVID-19

by Resnick Law Group, P.C.

Workers who suffer injuries or illnesses may have protection against losing their jobs if they are temporarily unable to work. New Jersey employment laws prohibit discrimination on the basis of disability. The definition of this term under state law includes many temporary conditions that can arise from injury or illness. During the COVID-19 pandemic, thousands of people nationwide were unable to work at any given moment because of COVID infections. Emergency state and federal laws provided some forms of paid sick leave for people dealing with COVID. It largely fell to antidiscrimination laws to address disparate treatment because of COVID infections. The New Jersey Attorney General (AG) recently announced that his office had settled a disability discrimination claim against a community college district that allegedly fired an employee suffering from COVID rather than granting him accommodations to allow him to continue working. The settlement requires the employer to re-hire the employee and pay him damages.

The New Jersey Law Against Discrimination (NJLAD) provides a broad definition of “disability.” A person must have a condition that either “prevents the typical exercise of any bodily or mental functions” or “is demonstrable…by accepted clinical or laboratory diagnostic techniques.” COVID-19 meets this definition of “disability” since, among other effects, it can severely impact the respiratory system, leaving a person with limited ability to exert themselves.

Employers may not discriminate against employees or job seekers based on disability, as defined by the NJLAD. This means that an employer may not fire or refuse to hire someone based primarily on a disability. It also means that employers must provide reasonable accommodations that would allow employees with disabilities to do their jobs. “Reasonable” means that the requested accommodation may not be too much of a burden on the employer or their business.
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November 7, 2023

Lawsuit Seeks to Hold Retail Clothing Company Liable for Alleged Harassment and Abuse of Models

by Resnick Law Group, P.C.

Sexual harassment in the workplace violates New Jersey employment laws at the federal and state levels. A common type of sexual harassment involves demands for sexual activity as a condition of employment. This could mean that a person must submit to a sexual demand in order to get preferable shift assignments or other benefits. It can also mean that the demands are a condition for getting a job in the first place. Certain jobs, such as modeling, are particularly prone to abuse by people in positions of power. Since models do not always have a clear “employment” relationship with the person making sexual demands, employment laws dealing with sexual harassment are not always available. A recent lawsuit filed by a model against a major clothing retailer accuses the company of enabling and benefitting from sexual harassment and abuse by the former CEO. Instead of employment statutes, it asserts claims under a federal law aimed at human trafficking.

Laws like the New Jersey Law Against Discrimination (NJLAD) and Title VII of the Civil Rights Act of 1964 allow employees and job applicants to file civil claims alleging sexual harassment. In the modeling industry, it is unfortunately not uncommon for people to abuse their power in order to get models to engage in sexual behavior. Using sexual demands as a condition of employment violates New Jersey employment laws. When further coercion is involved, including threats of violence or restraint, other statutes may apply, either in addition to or instead of employment statutes.

The New Jersey Human Trafficking Prevention, Protection, and Treatment Act (HTPPTA) prohibits the use of physical restraint, violence, or threats of violence to induce someone “to engage in sexual activity…or to provide labor or services.” While sex trafficking might be the most familiar form of human trafficking, it can also be a factor in industries like food service, manufacturing, and retail. The federal Trafficking Victim Protection Act (TVPA) addresses numerous forms of “forced labor.”
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October 27, 2023

Lawsuit by New Jersey Train Conductor Alleges Sexual Harassment

by Resnick Law Group, P.C.

Despite many advances in the past few decades, workplace sexual harassment remains a pervasive problem throughout the country. New Jersey employment law considers sexual harassment to be a form of sex discrimination in violation of the New Jersey Law Against Discrimination (NJLAD). At the federal level, Title VII of the Civil Rights Act of 1964 views sexual harassment the same way. A recent lawsuit by a New Jersey train conductor alleges extensive sexual harassment and other forms of offensive conduct. It is one of many such lawsuits and complaints brought in recent years against the state’s public transportation system.

The NJLAD and Title VII prohibit employment discrimination based on sex and various other factors. The U.S. Supreme Court recognized sexual harassment as a form of sex discrimination in Meritor Savings Bank v. Vinson in 1986. New Jersey courts have generally followed federal courts’ interpretation of employment discrimination laws concerning sexual harassment.

The Equal Employment Opportunity Commission (EEOC), which has the authority to investigate discrimination complaints under Title VII, identifies two general categories of unlawful sexual harassment:
– Quid pro quo sexual harassment: Agreeing to some sort of sexual demand is a condition of employment.
– Hostile work environment: Unwelcome sexual behavior at work is so “severe or pervasive” that it interferes with an individual’s ability to do their job.
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October 23, 2023

NLRB Affirms Ruling Against New Jersey Employer for Interfering with Union Activities

by Resnick Law Group, P.C.

The National Labor Relations Act (NLRA) protects workers’ rights to organize themselves and engage in collective bargaining. Employers may not interfere with employee activities related to self-organization. Once employees have chosen to join a union or form one of their own, employers must negotiate in good faith with union representatives. Both federal and New Jersey employment laws state that employers may not retaliate against employees who participate in union organizing or various other legally-protected activities. The National Labor Relations Board (NLRB) investigates complaints about alleged violations of the NLRA. It also adjudicates disputes arising from many complaints. A recent NLRB ruling found that a New Jersey employer violated two provisions of the NLRA related to interference with organizing and refusal to negotiate.

Section 8 of the NLRA identifies “unfair labor practices” by employers and unions. Under § 8(a)(1), an employer violates the NLRA if it “interfere[s] with, restrain[s], or coerce[s] employees” with regard to their rights to engage in organizing. An employer violates § 8(a)(5) if it “refuse[s] to bargain collectively with the [employees’] representatives.” Employees may file complaints with the NLRB alleging violations of these and other provisions. The NLRB’s General Counsel (GC) may bring administrative cases against employers. These cases may go before an administrative law judge (ALJ), followed by review by a panel of NLRB members.

The case before the NLRB originated with efforts to negotiate a new collective bargaining agreement (CBA) in 2018. The union represented about 165 employees at a facility in Annandale, New Jersey. It had filed unfair labor practice charges against the employer in 2016 and 2017 over disputes related to policies for personal time off and Paid Parental Time Off (PPTO). The employer reportedly revoked supervisors’ discretion over requests for personal time off, which the union claimed was in retaliation for an earlier complaint. A new policy initiated in 2017 gave eight weeks PPTO to non-union members, and none to union members. The union’s charges resulted in either dismissals or settlements.
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