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whistleblower-1764379__340-300x300New Jersey employment law has some of the strongest employee protections in the United States.  A recent unpublished decision by the Appellate Division of New Jersey’s Superior Court may have expanded those already strong protections.

New Jersey Whistleblower Laws

New Jersey has two main employment laws protecting whistleblowers.  The first is the common law rule established by New Jersey’s Supreme Court in the case of Pierce v. Ortho Pharmaceutical Corp. in 1980, which prohibits an employer from retaliating against an employee in violation of a “clear mandate of public policy” found in legislation; administrative rules, regulations and decisions; and judicial decisions.  Thus, an employer may not discipline an employee for disclosing, objecting to or refusing to participate in a practice which violated one of these policies.

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truck-3503831__340-300x200Selling a business can be an involved process.  However, selling an A901 licensed waste transportation business in New Jersey can be even more complex.

Waste hauling is a strictly monitored and regulated industry in New Jersey under the umbrella of the New Jersey Department of Environmental Protection (“DEP”).  In fact, while the waste transportation company may be owned by limited liability members or corporate shareholders, no owner may sell an A-901 licensed business without DEP approval and oversight.

Indeed New Jersey’s Administrative Code (“NJAC”)  contains the DEP’s regulations which provide that no solid waste transporter can sell, lease, or otherwise dispose of its property (including customer lists) without obtaining prior authorization from the DEP.   Therefore, anyone seeking to sell their waste collection business or the assets thereof, must file the appropriate notices with the DEP and obtain approval from the DEP before any closing or consummation of the sale or transfer may take place.

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construction-645465__340-300x200A recent decision in the case of Jacobs v. Mark Lindsay and Son Plumbing & Heating, Inc., by the Appellate Division of New Jersey’s Superior Court examined the interplay between two very important laws – New Jersey’s Consumer Fraud Act and the criminal “theft of services statute” in the context of a dispute between a contractor which wanted to get paid, and a homeowner who didn’t believe the contractor had earned his fee. It contains important lessons for residential construction contractors.

The Consumer Fraud Act and Theft of Services

New Jersey’s Consumer Fraud Act prohibits merchants from engaging in “unconscionable commercial practices.” The Consumer Fraud Act applies to “home improvement contractors,” and regulations issued by the Division of Community Affairs extend the Consumer Fraud Act’s protections to specific requirements for contracts for “home improvement” work, including having a signed, written contract in the first place. The New Jersey Criminal Code makes theft of services a criminal offense.

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girl-2607176__340-300x240There are many types of medical leave benefits which exist in New Jersey for employees, and they are ever-expanding and evolving. There is the federal Family Medical Leave Act of 1993 (“FMLA”) which allows an employee to take time off from work either for that employee’s own medical issues or to care for a seriously ill family member. The FMLA allows an employee to take up to twelve weeks of unpaid, job-protected leave each year as long as the employer has fifty or more employees.

To supplement this, in 2008 New Jersey enacted the Family Leave Act. That law provided up to six weeks of paid time off for employees to care for sick family members or newborn babies. The FLA did not cover time off for the employee’s own illness (because that is covered by New Jersey’s Temporary Disability Insurance laws (“TDI”)). Still, under the FLA, employees could take 6 weeks off to bond with or care for a family member and their jobs were protected during that period. The employee would receive up to 2/3rds of their normal weekly salary or wages (or approximately 66% of wages), up to a maximum of $650 per week. As with the FMLA, the FLA only applied to employers with fifty or more employees.

For an employee who had to be out for her own medical condition, pregnancy, or disability, that employee could file for TDI benefits. To qualify for TDI, an employee would need to be out of work for a medical reason for more than seven days. TDI benefits provide employees with up to 26 weeks of partial salary replacement. As with the 2008 FLA, the employee could receive up to 2/3rds of her normal wages. However, with TDI, that amount maxes-out at $637 per week.

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american-963191__340-300x200Background

On February 4, 2019, Governor Phil Murphy signed legislation which will raise the minimum wage in increments culminating in a minimum wage of $15 per hour on January 1, 2024.  The new law puts New Jersey at the forefront of the “living wage” movement, while the phase in is designed to lessen the impact on small businesses.  The new law amends the New Jersey Wage and Hour Law, which governs minimum wage and overtime requirements.

The legislation is the result of negotiations between the Governor and Legislature lasting more than a year.  The amendment was praised by labor unions and most Democrats in the state, but opposed by the New Jersey Chamber of Commerce and most Republicans.

 

The New Rates and Their Effective Dates

The new wages will be implemented according to the following schedule.

January 1, 2019 $8.85 per hour
July 1, 2019 $10 per hour
January 1, 2020 $ 11 per hour
January 1, 2021 $ 12 per hour
January 1, 2022 $ 13 per hour
January 1, 2023 $ 14 per hour
January 1, 2024 $ 15 per hour
January 1 of each subsequent year The then existing rate shall be increased by the increase in the consumer price index for all urban wage earners and clerical workers (CPI-W) for the 12 months preceding the prior September 20th.
January 1 of each subsequent year If the Federal minimum wage under the Fair Labor Standards Act is increased such that the increase would exceed the rate under the above schedules, then the New Jersey minimum wage rate shall be raised to match the Federal rate.

 

As with previous versions of the Wage and Hour Law (as well as the Fair Labor Standards Act), employers are still required to pay their non-exempt employees time and a half for all hours worked in excess of 40 per week.

 

Exceptions

The new legislation retains the previous exemptions to New Jersey’s minimum wage and overtime requirements, including most significantly the exemptions for executive, administrative and professional employees.

Full-time students employed by their colleges need only be paid 85 percent of the then current minimum wage rate.  New employees may be paid a “training wage” for their first 120 hours of work, the rate of which cannot be less than 90 percent of the minimum wage rate then in effect.

The minimum wage rate for employees of “small employers” (ie., those defined as having less than six employees) are phased in so that they do not reach those paid by employees with six or more employees until January 1, 2028.  Piece-rate or farm employees also receive a lesser minimum wage rate.

The amendment also establishes a new class of workers referred to as “Employee[s] with an impairment.”  These employees are defined as

an employee earning at least the minimum wage [then] effective… whose work capacity is significantly impaired by age or physical or mental deficiency or injury and who, based on a determination by the State, is found eligible for personal assistance services or prescribed drugs because without such services or drugs the individual would be unable to perform the essential functions of the employment position that the individual holds.

Employers who employ employees with an impairment can receive tax credits.

 

The Takeaway

Employers need to be aware of the amendment’s requirements.  They need to update their policies and pay practices accordingly.

Employees should be aware of their new rights under the legislation.

 

Contact Us

Our employment attorneys represent both employees and employers in the full range of employment law issues, including wage and hour issues.  Call us at (973) 890-0004.  We can help.

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contract-1464917__340-300x200Senator Marco Rubio recently introduced the Freedom to Compete Act. This proposed law would prohibit employers from entering into or enforcing non-compete agreements with lower level employees while simultaneously protecting employers’ trade secrets.

Non-Compete Agreements

Non-compete agreements are binding contractual restrictive covenants which limit an employee’s ability to compete with her employer after she leaves or while she is employed. These agreements normally prohibit the employee from forming a competing business, and also from directly or indirectly capacity by working for a competitor or soliciting their employer’s customers.

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macbook-336704__340-300x200The Benefits and Responsibilities of Ownership

Becoming the owner of a business has tremendous advantages:  Owners can rise or fall based on their own merits, and when expenses are paid the remaining profits belong to the owners.  However, there are also disadvantages, such as the risk that the business will lose money, and responsibility for the business’s payroll and debt.  In addition to this stands business owners’ duties to their co-owners, be they partners in a partnership, shareholders in a corporation, or members in a limited liability company.

Under New Jersey business law, owners are placed in a special position of trust vis a vis their fellow owners, and the law thus imposes special responsibilities on them.  These responsibilities are known as “fiduciary duties.”

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DunceEarlier this year the Enquirer published an embarrassing story with text messages and photos of Jeff Bezos, the owner of Amazon and the richest man in the world, with his mistress.  Bezos also owns the Washington Post, which has investigated the Enquirer’s relationship with President Trump, and published critical stories about the Enquirer.  The same day the story was published, Bezos and his wife, the author MacKenzie Bezos, announced their divorce.  Bezos tasked his security chief, Gavin de Becker, with investigating how the Enquirer obtained the text messages and photos.

Then, on February 7, Bezos posted a blog post accusing the Enquirer of threatening to post more embarrassing photos and text messages if Bezos did not drop the investigation.  Bezos claimed that the threats were made by a lawyer for the Enquirer through email.

And thus, if true, the National Enquirer has taught us all a great lesson about what not to do in negotiations.

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baby-2242638__340-300x210New Jersey’s Law Against Discrimination gives employees some of the strongest legal protections against discrimination and harassment in the nation.  However, these protections have recently been expanded.  In one of his last acts as governor, Chris Christie signed the Legislature’s amendment to the Law Against Discrimination its protections to include mothers who are breastfeeding.

The New Jersey Law Against Discrimination

The Law Against Discrimination was enacted in 1945, placing New Jersey at the forefront in protecting employees’ from workplace discrimination.  Indeed, the Law Against Discrimination was the first statewide civil rights enforcement law.  Since then it has been amended many times by legislation and court decisions, always expanding and strengthening New Jersey’s protections against discrimination.

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New Jersey solid waste transportation is highly regulated by the New Jersey Department of Environmental Protection (“DEP”). While most businesses in New Jersey require some level of truck-3503831__340-300x200regulation, licensing, and/or registration, garbage hauling is a particularly scrutinized industry.

Part of the authorization process (and ongoing regulation) of solid waste transporters includes obtaining a Certificate of Public Convenience and Necessity (“CPCN”). A CPCN provides the State with specific information regarding a hauler’s operations including hours of operations, owner information, exact fees and rates charged by that hauler to customers, territories (counties) served, and the financial condition of the company. Once a CPCN is obtained, the transporter must file annual reports (also known as utility reports) to update all of that information.

The requirement’s for a CPCN are set forth in the Solid Waste Utility Regulations.  These rules and regulations are quite specific and far-reaching into many of the operations of the transportation company.