Articles Tagged with “New Jersey Employment Lawyers”

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Gender discrimination is one of the most heavily litigated areas of New Jersey Employment Law. The United States Third Circuit Court of Appeals recently issued an opinion involving the issue of “sex plus” gender discrimination which will apply equally to New Jersey’s state and federal courts.

What is “Sex Plus” Discrimination?

Although it didn’t call it that, the concept of “sex plus” discrimination was first adopted by the United States Supreme Court in a 1971 decision involving Title VII of the Civil Rights Act of 1964, in the case of Phillips v. Martin Marietta Corp. In that case a woman applied for a job in which three quarters of the employees were female, and thus it was clear that the employer did not discriminate against women. However, it did not accept applications from women with pre-school age children, while at the same time it accepted and employed men with pre-school age children. The Supreme Court found that this was sex discrimination because it placed barriers to work on women that it did not place on them.

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medical-marijuana-300x300While the sale and possession of marijuana are flatly illegal under federal law, and the illegal status of recreational marijuana under New Jersey law has not changed yet, the medical use of marijuana is legal under New Jersey’s Compassionate Use Act for ALS, anxiety, certain chronic pain conditions, migraine headaches, MS, opioid addiction, terminal cancer, muscular dystrophy, inflammatory bowel disease, Crohn’s disease, terminal illness with less than twelve months of life expectancy, and Tourette’s Syndrome. It may also be used to treat HIV, acquired immune deficiency syndrome and cancer if severe or chronic pain, severe nausea or vomiting, cachexia or wasting syndrome result from treatment.  Additionally, seizure disorder, epilepsy, Intractable skeletal muscular spasticity, glaucoma and PTSD qualify for medical marijuana treatment if the patient is intolerant of or resistant to conventional therapy.

The Interplay of Medical Marijuana and Disability Protections under New Jersey Employment Law

The Compassionate Use Act contains the language that “Nothing in this act shall be construed to require… an employer to accommodate the medical use of marijuana in any workplace.”  On the other hand, New Jersey’s Law Against Discrimination does require employers to make reasonable accommodation for an employee’s disability if the accomodation would allow her to work without causing undue hardship for the employer.  The conditions which allow for the use of medical marijuana under the Compassionate Use Act would in all likelihood constitute “disabilities” under the Law Against Discrimination.  These two laws, both of which laudably aim to protect vulnerable people, thus appear to be in conflict.

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New Jersey’s Law Against Discrimination makes it illegal for employers to discriminate against employees because they have a “disability.”

Law Against Discrimination also requires employers to make “reasonable accommodations” so that employees can do their jobs despite their disabilities.  New Jersey’s Workers Compensation Act requires employers to carry workers compensation insurance which provides for medical coverage and compensation for employees who are injured on the job.  However, there are relatively few cases examining the interplay of these two important New Jersey employment laws.  However, New Jersey’s Supreme Court recently issued an important decision on just this interplay in the case of Caraballo v. City of Jersey City Police Department.

Disability Discrimination and Reasonable Accommodation Under New Jersey Employment Law

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office-2009693__340-300x200New Jersey employment law generally recognizes that employees have a limited right to privacy in the workplace, including in their digital life.  However, a recent federal appellate decision limited the reach of employee privacy.  It is an unpublished decision, and therefore not binding.  However, it is a troubling outcome.

The New Jersey Supreme Court Finds Employees Have Privacy Rights

People generally have a right to privacy which they do not lose when entering the work force.  The New Jersey Supreme Court explained in the 1992 case of Hennessey v. Coastal Eagle Point Oil Co. that the source of this right in New Jersey Employment law comes from the New Jersey Constitution and the common law.  However, in that same case, the Supreme Court ruled that the right to privacy in the workplace is not absolute, and may yield to legitimate public policy concerns such as public and employee safety.

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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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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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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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the-dollar-3125419__340-300x200Some of the areas in which businesses make their largest investments of time and expense are trade secrets (including customer lists) customer relations and client development, and employee development.  However, these interests may conflict, especially when highly placed employees leave a firm.  This is an area of potentially bitter dispute in New Jersey business law and employment law.

Businesses have many trade secrets, but the most important of these is often information regarding its customers.  Because of intense competition, and the time, effort and expense which businesses invest in cultivating their clients, customer lists, especially customer lists in service industries, are protected by the common law and New Jerseys Trade Secrets Act.

Businesses also invest significant expense in training and developing their employees, even aside from salary and benefits.  Thus, New Jersey business law and employment law imposed a duty of loyalty on employees, even those who do not have a restrictive covenant.  This duty of loyalty prohibits employees from competing with their employers while they are employed.  An employee may not induce her employer’s employees or customers to leave her employer, nor may she appropriate her employer’s trade secrets.  The employee may plan to leave, and if the employee does not have a restrictive covenant she can even seek employment with competitors or even set up a business entity which will compete with the employer after she leaves. However, the employee cannot go beyond the planning stage while still employed.

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agreement-300x200The Appellate Division of New Jersey’s Superior Court recently issued an instructive decision about arbitration agreements in employment law disputes.  The case does not invalidate arbitration agreements – they are protected by both federal and New Jersey law – but it does show that the trend is that arbitration agreements are being construed strictly against the employers which drafted them.

The Skuse Case

In the case of Amy Skuse v. Pfizer, Inc., the Appellate Division invalidated an electronic arbitration agreement used by Pfizer for all its employees.  The “agreement” was not on paper, but an electronic “training module.”  Employees received an email which instructed them to complete the “electronic training.”  Even if they didn’t, complete the training module, the employees would have be deemed to have agreed to the arbitration provision by continuing to work for Pfizer for another 60 days.  The module allowed them to scroll past the text of the provision, and did not provide for the employees to indicate their agreement to arbitration, only their “acknowledgement” of the policy.  The module then thanked the employee for “reviewing” the policy, but not for agreeing to it.