The speed in which the Congress and various federal agencies have acted in response to the coronavirus outbreak has caused confusion among employers about what they must do to comply with these new laws and regulations.  To assist employers we have compiled a list of fact sheets, Q&As and FAQs produced by several governmental agencies that will hopefully provide some clarity.

As always, you can contact Lindabury’s Labor & Employment group with any questions you may have.

US DOL Employee Rights Under the FFCRA poster required to be posted by employers:   The FFCRA mandates that employers prominently display this poster in the workplace by April 1, 2020.  The poster can be downloaded here.

On March 19, 2020, Governor Murphy signed a new law that grants immediate protection to employees who have or are likely to have an “infectious disease” caused by “a living organism or other pathogen, including a fungus, bacteria, parasite, protozoan, virus or poison, which may or may not be transmissible from person to person, animal to person, or insect to person.”  The coronavirus is an infectious disease within the meaning of the law.

Employer Mandates: The law mandates that an employer may NOT terminate the employment of any employee who requests or who takes time off from work based on a written or electronically transmitted recommendation from a New Jersey medical professional that the employee should take time off for a specified period because the employee has or is likely to have an infectious disease.  Additionally, the employer may NOT refuse to reinstate the employee to work after the expiration of the leave specified by the medical professional. Reinstatement must be to the same position held when the leave commenced without any additional penalties.

Violations: Any employer violating this new law will be compelled to reinstate the employee to his/her prior position and is subject to a fine of $2,500 for each violation.

I. Where We Are

A. What Are Restrictive Covenants in the Employment Setting in New Jersey?

Generally speaking, restrictive covenants in an employment setting take one of three forms: a covenant not to compete, a non-solicitation covenant, and/or a non-disclosure covenant.

Employers doing business in New Jersey have been subject to both the federal and state Worker Adjustment and Retraining Notification Act (“WARN”) for more than ten years.  Under the prior laws, if an employer were to close a facility employing more than 50 fulltime employees, it was required to provide those employees with at least 60 days’ advanced notice of the closure or face a penalty that required the employer to pay severance compensation to each of the terminated employees.   Amendments to the New Jersey legislation signed into law by Governor Murphy in January 2020 not only require employers to provide more notice to employees, but will also impose new economic burdens upon the employers.

These amendments to New Jersey’s WARN Act require employers who plan to close one or more establishment(s) within the state that will result in the layoff or termination of 50 or more employees (fulltime and/or part-time employees) from that establishment(s), are required to provide the affected employees with at least 90 days advanced notice of the layoff or termination of employment.  Additionally, employers will be obligated to pay severance compensation to each of the affected employees in an amount equal to one week of severance compensation for each year of service. The severance compensation must be paid on or before the last day of employment. If an employer fails to pay the appropriate severance compensation, the employer will fact a penalty obligating it to pay an additional four weeks of compensation to each employee not correctly paid.

Amendments to the Act also define severance compensation as compensation due for back pay associated with the termination in an apparent attempt to characterize the severance compensation as wages for the purposes of bankruptcy.

New Jersey has one of the most progressive laws prohibiting discrimination in the workplace, as well as in places of public accommodation.  That law’s protections against race discrimination have been further expanded under recent legislation signed into law by Governor Murphy. The new act is commonly known as the “Crown Act.”

Under the new law, it is now illegal to discriminate against anyone because of their race, inclusive of traits historically associated with race “including but not limited to, hair texture, hair type, and protective hairstyles.”  The new law further defines protective hairstyles to include “such hairstyles as braids, locks and twists.” In short, you cannot refuse to continue to employ any current employees or refuse to employ prospective employees if they are sporting hairstyles that are characteristically associated with a particular race of people.

Although the new law was clearly adopted as a result of last year’s debacle involving a high school wrestler’s hairstyle, it goes beyond hairstyles.  It prohibits discrimination against race, inclusive of “traits historically associated with race.” The law does not further define such traits. Unless and until the Division of Civil Rights adopts regulations which further define such traits, or court decisions provide employers with some direction with respect to defining such traits, employers will be compelled to make those decisions as they arise. For example, could it be argued that beards, piercings or tattooing are traits historically associated with race?   Since there may be numerous historic traits that are associated with different races, we suggest that employers move slowly and consult their employment counsel before making a potentially incorrect decision.

How many of us remember the iconic holiday party in the movie “Scrooged?”  As Bill Murray is passing out mail, the staff is drinking more than they should, employees are groping each other, and how can anyone forget the employee who is copying their bottom while sitting on the Xerox machine? “Enjoy yourself, it’s the Christmas party.”

How many of us have attended such events?  Probably more than we would like to admit.

Regardless of your point of view, times have changed.  Sexual harassment is the law. Drunk driving jeopardizes public safety and can cause you and/or your employees to end up in jail.  Social mores no longer condone the conduct demonstrated in that now famous “Scrooged” party.

Effective Monday, January 8, the New Jersey Law Against Discrimination was amended to include breastfeeding as a protected status. As a result, an employer cannot refuse to hire, cannot discharge, and cannot treat someone adversely with regard to the terms, conditions or privileges of their employment because that employee is breastfeeding and needs workplace accommodations.

Additionally, the new law requires employers to provide reasonable accommodations to an employee who is breast feeding her infant child, including reasonable break time each day and a suitable, private room other than a toilet stall, in close proximity to the employee’s work area in which the employee can express breast milk for the child.

Lindabury’s Labor and Employment Law partner, John H. Schmidt, was interviewed by New Jersey Business Magazine‘s Editor-in-Chief Anthony Birritteri for the article published in the May 2017 issue. Their discussion focused on the fine lines of major issues employers face regarding diversity and discrimination in the workplace and in the hiring process.

New Jersey’s Law Against Discrimination (NJLAD) is among the strongest anti-discrimination laws in the country and according to John Schmidt, “The New Jersey LAD is much broader than the provisions of Title VII because the latter deals with race and sexual discrimination. On the federal level, there is a separate statute for disability discrimination, as an example. In fact, since the mid-to-late 1980’s, most plaintiff attorneys have decided it is to their advantage to bring claims under the NJLAD”

Most companies claim they are equal opportunity employers and have been recognized by the top diversity lists. John Schmidt cautions; “If you select a particular class of individuals [a certain minority group] to hire – giving preference to them- you could be in violation of the NJLAD and federal laws.”

Although it is presently illegal under the New Jersey Law Against Discrimination (the “LAD”) to pay people different wages for performing the same work under similar working conditions because of their gender, there is currently pending in both the State Senate and Assembly legislation “concerning equal pay for women and employment discrimination, requiring public contractors to report certain employment information.”

Implications for All Employers: As proposed, the new legislation will make it an illegal act of discrimination to pay any employee at a rate of pay, including benefits, which is less that the rate paid by the employer to employees of the other sex for substantially similar work, when viewed as a composite of skill, effort and responsibility. Unlike prior legislation in this area, the proposed legislation codifies five circumstances justifying a pay differential between the sexes, but the employer bears the burden to prove that any of those circumstances exist. In so doing, the bill materially changes the legal standard for establishing wage discrimination.

The proposed legislation also adopts recent New Jersey Supreme Court jurisprudence by specifying that an unlawful employment act occurs each time an individual is adversely affected by a discriminatory compensation practice and paid less because of their sex. Contrary to the federal Lilly Ledbetter Fair Pay Act and current New Jersey law, however, the new legislation does not limit the amount of back pay the aggrieved employee can receive for violations that occur within the applicable statute of limitations period. Rather, under the new bill there is no statute of limitation, and an aggrieved employee can collect back wages retroactive to the date that discriminatory compensation first occurred, so long as the violation continues into the applicable two year statute of limitation of the LAD. Moreover, the proposed legislation prohibits employers from requiring individuals to agree to a shortened statute of limitation as a condition of employment.

As the State legislature continues to debate the merits and the provisions of a comparable state law governing paid sick leave, Morristown has moved forward.  Morristown now becomes the 13th municipality in New Jersey to adopt a paid sick leave ordinance that is applicable to all non-union, non-governmental employers operating within its city limits.

The Morristown ordinance is very similar to one that was earlier adopted by the City of Newark.  It provides that all employers who have employees working in Morristown for at least 80 hours in a given benefit year, except any governmental employees or members of a construction union covered by a collective bargaining agreement, are obligated to comply with  the ordinance that provides:

  • Employees accrue one hour of paid sick time for every 30 hours worked.
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