The New Jersey Employment Law Firm Blog

August 25, 2023

New Jersey Court Denies Effort to Enjoin Temporary Workers Bill of Rights

In February 2023, the New Jersey governor signed a bill that creates a Temporary Worker Bill of Rights (TWBOR). Employment statutes typically only protect people who meet a fairly specific definition of an “employee” that often excludes temporary workers. The TWBOR expands the protections offered by many New Jersey employment laws to include temporary workers employed by staffing agencies. Its effective date was August 5, 2023, 180 days after the date the governor signed it. In May, several trade organizations that represent staffing agencies filed a federal lawsuit seeking to enjoin the TWBOR on constitutional and statutory grounds. A judge denied their request for a preliminary injunction in late July, allowing the TWBOR to take effect on schedule.

The TWBOR covers temporary workers in multiple industries, including security, building maintenance, personal care services, food preparation, construction, manufacturing, repair, and transportation. These workers are directly employed by staffing agencies and provide services to client businesses. According to the New Jersey Legislature, temporary workers receive significantly lower pay than other employees for the same work and are more vulnerable to abusive workplace practices.

The new law imposes disclosure and recordkeeping requirements on temporary staffing agencies. It limits agencies’ ability to charge temporary workers for expenses like transportation to and from worksites. The provisions of the TWBOR that took effect on August 5 include a requirement that temporary workers receive wages that are at least equal to “the average rate of pay and average cost of benefits” for employees of the client businesses that do “the same or substantially similar work.” Violations of many of these provisions may result in civil fines and liability for damages to aggrieved temporary workers.
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August 17, 2023

Supreme Court Changes Standard in Religious Discrimination Claims

by Resnick Law Group, P.C.

New Jersey employment laws prohibit employers from discriminating against employees and job applicants on the basis of religion. At both the state and federal levels, laws dealing with religious discrimination in employment have two components. First, employers may not make adverse decisions or take adverse actions based solely or primarily on an individual’s religious beliefs, practices, or identity. Second, employers must make reasonable accommodations for employee’s religious practices, as long as doing so does not impose an “undue hardship” on them. The U.S. Supreme Court recently revisited the current standard, established in 1977, for determining what constitutes an undue hardship for religious accommodations. The court’s June 2023 decision in Groff v. Dejoy places a greater burden on employers to demonstrate undue hardship. This potentially grants greater rights to employees with religious obligations.

Title VII of the Civil Rights Act of 1964 defines “religion” to include “all aspects of religious observance and practice.” It requires employers to “reasonably accommodate” employees’ religious observances or practices, with an exception for “undue hardship” to the employer. The statute does not define this term.

In 1977, the Supreme Court addressed the meaning of the term in Trans World Airlines v. Hardison. It held that anything “more than a de minimis cost” would pose an undue hardship for the employer. This effectively means that anything beyond an insignificant cost to the employer would be excused under Title VII.
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August 14, 2023

New Jersey Lawsuit Against Internet Company Alleges Employee Misclassification

by Resnick Law Group, P.C.

New Jersey guarantees a minimum wage for all non-exempt employees in the state. In order for an individual to claim a right to minimum wage, they must establish that they are, legally speaking, an “employee.” Some employers try to avoid this obligation by misclassifying employees as independent contractors. This type of practice is considered a minimum wage violation. The federal and state definitions of “employee” differ slightly from one another, but both are based on the extent to which an employer controls how an individual does their job. A lawsuit pending in a Newark federal court alleges misclassification of online workers under both federal and New Jersey employment laws.

New Jersey has developed a concise definition of “employment” for the purposes of determining whether an employer has misclassified an employee as an independent contractor. A court must presume that an individual is an employee unless the employer can establish all three of the following elements:
A. The employer does not have direct control over how the worker does their job, both under the terms of a written contract and in actual practice.
B. The worker’s service is either not part of the employer’s usual business, or they do much of their work off-site.
C. The worker regularly works in their own trade or occupation separate from the employer.

At the federal level, the definition of “employment” in this context is also based on how much control an employer exerts, and how much independence a worker exercises. It is not as specific as New Jersey’s definition, so it tends to be less favorable to employees. The U.S. Department of Labor has stated that it is working on revising the definition.
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August 4, 2023

New Jersey Plant Closure Violated Employees’ Labor Rights, NLRB Rules

by Resnick Law Group, P.C.

For far too many workers in New Jersey and throughout the country, employment can be uncertain or even precarious. Decisions made by employers far above an employee’s level can lead to them being out of a job through no fault of their own. New Jersey employment laws protect against wrongful termination, such as a decision to fire someone because of a protected category like race or religion, or termination in retaliation for legally protected activity. State and federal laws do not prohibit employers from laying workers off for non-discriminatory or retaliatory reasons, but they might set some limits. In the case of certain mass layoffs, for example, employers must provide advance notice and severance pay. Many collective bargaining agreements (CBAs) also contain provisions requiring negotiation prior to plant closures. Federal labor law requires employers to negotiate with authorized unions in accordance with their CBAs. The National Labor Relations Board (NLRB), which enforces the main federal labor statute, recently ruled that an employer violated the law by closing a facility and laying employees off without notifying the union.

The National Labor Relations Act (NLRA) prohibits employers from interfering with workers’ rights, as defined by § 7 of the statute, to engage in various protected activities. This includes organizing themselves for the purpose of collective bargaining, as well as other activities related to promoting employees’ well-being. The statute identifies a range of “unfair labor practices.” Many involve actions taken by employers, while others involve refusals to act.

Once a union has met the NLRA’s requirements for becoming the authorized representative of a group of employees, the employer must negotiate with that union in good faith. Section 8(a)(5) makes it an unfair labor practice for an employer to refuse to participate in collective bargaining with its employees’ representative. Under § 9(a) of the NLRA, the union is the employees’ “exclusive representative,” in most situations, with regard to negotiations with management for “rates of pay, wages, hours of employment, or other conditions of employment.” This often includes negotiation over decisions that could lead to employee layoffs, such as the closure of a plant or other facility. The union has the right to negotiate regarding the terms and effects of these kinds of decisions.
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July 27, 2023

How the U.S. Supreme Court’s Affirmative Action Ruling Might Affect Employment Discrimination Claims in New Jersey

by Resnick Law Group, P.C.

The U.S. Supreme Court’s recent ruling in Students for Fair Admissions v. Harvard made significant changes to how many colleges and universities will handle their admissions processes. The court essentially found that race-based affirmative action programs violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. This has led to questions about whether the ruling could affect New Jersey employment discrimination claims that rely on Title VII of that statute. It is possible that the Harvard decision will impact how employers approach recruitment, particularly with regard to diversity, equity, and inclusion (DEI) efforts. This could affect broader patterns in hiring, but it is too early to say how — or if — the decision will impact individual hiring decisions.

Title VII prohibits discrimination on the basis of five broad categories: race, color, sex, religion, and national origin. Statutes and Supreme Court decisions have expanded the definitions of some of these terms. For example, the Pregnancy Discrimination Act of 1978 added discrimination based on pregnancy and childbirth to the definition of sex discrimination. The Supreme Court’s 2020 ruling in Bostock v. Clayton County held that sex discrimination under Title VII includes discrimination based on sexual orientation or gender identity.

The Harvard ruling specifically addresses claims of discrimination on the basis of race under Title VI. Over the years, the Supreme Court has identified numerous forms of workplace race discrimination that violate Title VII. This includes both overt and subtle forms of discrimination. In 1971, the court ruled in Griggs v. Duke Power Co. that an employer can violate Title VII even if it had no intent to discriminate based on race. The case involved an employment policy that had a disparate impact on Black job applicants. The aspects of the policy that created the disparity had no reasonable relationship to job duties or performance.
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July 21, 2023

EEOC Addresses Best Practices for Avoiding Sexual Orientation and Gender Identity Discrimination in New Jersey Workplaces

by Resnick Law Group, P.C.

In New Jersey, employment laws prohibit workplace discrimination on the basis of factors like sex, race, religion, disability, age, sexual orientation, and gender identity, to name but a few. This state was ahead of many other states in adding the latter two categories to its anti-discrimination statute. At the federal level, the Equal Employment Opportunity Commission (EEOC) determined some time ago that discrimination based on sex includes sexual orientation and gender identity discrimination. This conclusion, however, did not have the force of law. Federal anti-discrimination law did not include these categories until the U.S. Supreme Court reached essentially the same conclusion as the EEOC in 2020. Earlier this year, the EEOC published an article tracing the history of LGBTQI+ rights in the workplace and discussing best practices for employers under federal law.

According to the EEOC, only twenty-two states and the District of Columbia have employment laws that specifically prohibit discrimination based on sexual orientation or gender identity. New Jersey is among them. Significant improvements in LGBTQI+ rights probably began in 1973, when the American Psychiatric Association (APA) removed “homosexuality” from its list of psychiatric disorders. Two years later, Pennsylvania enacted the first state law against sexual orientation discrimination in employment. New Jersey followed with an amendment to the New Jersey Law Against Discrimination (NJLAD) in 1991.

A 2006 amendment to the NJLAD added “gender identity or expression” to the list of protected categories. New Jersey was actually ahead of the APA in this case. The organization did not remove “gender identity disorder” from its manual until 2012, replacing it with the diagnosis of “gender dysphoria.” Both the New Jersey Legislature and the APA remained ahead of the federal government on these issues.
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July 13, 2023

NLRB and CFPB Announce Collaboration to Protect Workers in New Jersey and Nationwide

by Resnick Law Group, P.C.

Numerous government agencies investigate alleged violations of employees’ workplace rights. On occasion, they pursue enforcement actions on workers’ behalf. State agencies handle claims under New Jersey employment law, while federal agencies address alleged violations of statutes like Title VII of the Civil Rights Act of 1964 or the National Labor Relations Act (NLRA). Agencies may collaborate with one another in order to further their own missions and provide better service to the public. Two federal agencies announced a new collaboration in March 2023. The National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CFPB) will share information and resources in order to address several issues of concern. These include employment practices that have adverse impacts on employees’ privacy, data security, and financial well-being.

In its press release announcing the new collaboration, the NLRB states that despite “hav[ing] two distinct missions,” both agencies “share an interest in protecting American workers.” The NLRB is responsible for investigating alleged violations of workers’ labor rights under the NLRA, such as interference by an employer with efforts to self-organize or join a union for collective bargaining purposes. The NLRB’s General Counsel may file administrative actions against employers seeking compensation for workers and other types of relief.

While the NLRB came into existence nearly nine decades ago in 1935, the CFPB came into existence just over a decade ago in 2011. Congress established both agencies in the wake of major financial crises: the Great Depression and the 2007-08 financial crisis, respectively. The CFPB promulgates and enforces regulations affecting financial institutions and other businesses that may impact consumers’ financial interests. It may initiate administrative proceedings or file civil lawsuits in federal court. Enforcement actions by the CFPB might involve deceptive or abusive practices by banks, mortgage lenders, or payday loan companies. The agency has also investigated employment practices that “may leave employees indebted to their employers.”
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July 5, 2023

U.S. Supreme Court Sets Limit on New Jersey Workers’ Rights During Strikes

by Resnick Law Group, P.C.

New Jersey employment laws at both the state and federal levels protect a wide range of workers’ rights. When federal and state laws seem to conflict with one another, federal law often supersedes state law, although, this is not always the case. The U.S. Supreme Court recently ruled on a preemption question related to labor rights. A group of workers and their union argued that the National Labor Relations Act (NLRA), which guarantees workers’ right to self-organization for collective bargaining purposes, preempted a property damage claim that the employer brought against the union. Unfortunately, the court ruled in the employer’s favor in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174, meaning that the court set a limit on the protection that the NLRA offers.

The NLRA protects the rights of workers to organize themselves into unions or join existing unions, and to engage in activities related to organizing, collective bargaining, and “other mutual aid or protection.” Workers also have the right to refrain from union-related activities. The statute prohibits both employers and unions from interfering with employees’ rights or coercing them. Once employees have formed or chosen a union to represent them, their employer must negotiate with that union in good faith on employment issues.

Because the NLRA is a federal statute, its provisions might preempt some state law claims. The doctrine of federal preemption is based on the Supremacy Clause of the U.S. Constitution, which states that federal law is “the supreme Law of the Land,” regardless of whether state laws say something different.
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June 29, 2023

EEOC Joins Other Federal Agencies to Warn About Potential Bias in Use of AI in Employment Decisions

by Resnick Law Group, P.C.

Artificial intelligence (AI) has received a large amount of media coverage recently, largely due to applications that use AI to create visual or written works. Businesses have been using AI tools for a variety of purposes for some time, including the hiring process. Since AI is a relatively new technology, New Jersey employment laws have not caught up to many of its latest functions. The Equal Employment Opportunity Commission (EEOC) has taken notice of numerous risks posed by AI, including implicit bias in hiring. Last year, it issued guidance regarding the use of AI as a decision-making tool. It joined with several other federal agencies in April 2023 to issue a joint statement about potential legal liabilities from relying on AI. A bill pending in the New Jersey Legislature would regulate AI tools that could contribute to employment discrimination. A similar law is set to take effect in New York City in July.

Multiple state and federal statutes prohibit discrimination in hiring, firing, and other features of employment based on certain factors. The New Jersey Law Against Discrimination (NJLAD) specifically protects workers against discrimination on the basis of race, religion, sex, sexual orientation, gender identity, disability, age, genetic information, and other protected categories. Federal laws like Title VII of the Civil Rights Act of 1964 and the Americans With Disabilities Act (ADA) of 1990 also deal with workplace discrimination.

Discrimination does not have to be overt or intentional to violate the law. The U.S. Supreme Court has held that employment policies or practices are unlawful if they have a discriminatory impact. Much of the concern over the use of AI in hiring decisions stems from the fact that it might use data from past hiring practices to guide decisions in the present. This can lead to disparate impact discrimination, even if no one intended to discriminate.
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June 15, 2023

U.S. Supreme Court Rules in Employee’s Favor in FLSA Claim

by Resnick Law Group, P.C.

Federal and New Jersey employment laws require employers to pay minimum wage and overtime compensation to workers, subject to numerous exemptions. This includes employees who work in an “executive” capacity. While the federal Fair Labor Standards Act (FLSA) does not define this term, regulations provide a working definition that includes a baseline weekly rate of pay. The U.S. Supreme Court recently ruled on a dispute between an employer and an employee who earned significantly more than this amount. The parties disagreed over whether the exemption for executives applied to him. The court ruled in the employee’s favor in Helix Energy Solutions Group, Inc. v. Hewitt, finding that he is entitled to overtime compensation.

Section 7 of the FLSA requires employers to pay non-exempt employees one-and-a-half times their regular wage for hours worked over forty in a week. Section 13(a)(1), however, exempts employees who work “in a bona fide executive…capacity.” Regulations issued by the Wage and Hour Division (WHD) of the U.S. Department of Labor provide a four-part definition of an “employee employed in a bona fide executive capacity”:
1. Weekly pay of at least $684 per week on a “salary basis”;
2. Management as a “primary duty”;
3. Authority to “direct[] the work of two or more other employees”; and
4. Authority or influence over decisions regarding hiring and firing.

The regulations define “salary basis,” in essence, as payment of a predetermined amount no more frequently than once a week. At the time of the events at issue in Helix Energy, the minimum weekly pay amount was $455. The WHD amended the regulation in 2019 to raise it to $684.
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