New Jersey Governor Phil Murphy recently signed S2374 into law, expanding the New Jersey Family Leave Act (“NJFLA”) and New Jersey Temporary Disability Benefits Law (“NJTDBL”) and providing additional employee protections during the coronavirus COVID-19 pandemic and future epidemics, including (1) the expansion of reasons for leave; (2) certification changes; (3) intermittent use of such leave; (4) changes related to highly compensated employees; and (5) the expansion of the scope of compensable leave under NJTDBL. These changes are effective immediately and apply retroactively to March 25, 2020.
NJFLA—Expanded Reasons for Leave
During a state of emergency declared by the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority, due to “an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of a communicable disease,” an employee may use NJFLA leave for the following new reasons:
Childcare—to care for a child due to a school or daycare closure;
Mandatory quarantine— to care for a family member subject to mandatory quarantine; and
Voluntary self-quarantine—to care for a family member whose doctor recommends a voluntary self-quarantine.
Effective January 1, 2020, private employers in New Jersey are prohibited from asking job applicants about their salary, wage, and benefit history and are not permitted to make hiring decisions based on that information. Employers will also be prohibited from requiring that an applicant’s salary history satisfy certain minimum or maximum requirements.
There are notable exceptions to this prohibition, which include the following:
If an applicant “voluntarily, without employer prompting or coercion,” discloses salary or wage information, the employer may verify whether the information was accurate and use the information to determine compensation to be paid to the applicant;
An employee is applying for internal transfer or promotion with a current employer;
Actions taken by an employer pursuant to a federal law or regulation that expressly requires the disclosure or verification of salary history for employment purposes; and
After an offer of employment has been made that includes an explanation of the overall compensation package, an employer may confirm an applicant’s salary history upon the applicant’s written authorization.
Employers who violate the law can be fined up to $1,000 for a first offense, $5,000 for a second offense, and $10,000 for violations thereafter.
Please contact a member of Blank Rome’s Labor & Employment practice group if you have any questions about compliance with New Jersey’s salary and wage ban or any other employment issues.
Earlier this month, a three-judge panel for the Appellate Division of the Superior Court of New Jersey affirmed a 2018 trial court decision granting summary judgment against a self-described obese former bus driver for defendant Community Bus Lines, Inc. (“Community”), and dismissing the driver’s claim for violation of the New Jersey Law Against Discrimination (“NJ LAD”). In doing so, the appellate court held that “obesity alone is not protected under the NJ LAD as a disability unless it has an underlying medical cause.” Because plaintiff, in part, failed to present any direct or circumstantial evidence that defendants perceived the driver as disabled due to a medical condition that caused him to be overweight, the appellate court found his claim was without merit.
The plaintiff in this matter worked as a bus driver for Community for 10 years during which time he weighed between 500 and 600 pounds. To maintain his status as an active bus driver, he was required to undergo a medical examination every two years and obtain medical certification verifying his fitness to drive. In 2015, a doctor certified by the United States Department of Transportation (“DOT”) conducted plaintiff’s examination and temporarily disqualified him from driving a bus pending further testing. The plaintiff never followed through to complete the required additional testing and was therefore placed “out of service.” Despite his failure to schedule the follow-up testing, plaintiff’s supervisor referred him for a second opinion to another doctor, who confirmed the prior conclusions and found that further testing was needed before a medical certification could be issued. Neither doctor who examined plaintiff determined that he was disabled but only that further testing was required before he could be certified. Plaintiff again did not pursue the required testing and remained on leave. Continue reading ““Obesity Alone” Is Not a Disability under the New Jersey Law against Discrimination”
The bill (NJ A3975), revamping the New Jersey Family Leave Act (“NJFLA”) and Family Leave Insurance (“FLI”), was passed in both houses of the New Jersey Legislature on January 31, 2019. Governor Murphy is expected to sign the bill today, with some changes effective immediately.
As a reminder, NJFLA provides job-protected leave for workers at large employers to care for family members. On the other hand, FLI provides wage-replacement benefits to workers during a leave used to care for a family member. FLI applies regardless of the size of the employer and is funded by employee payroll deductions.
As we reported last week in Blank Rome Workplace, New Jersey employers need to get ready for minimum wage increasing to $15 per hour. The bill, which passed on party lines last Thursday, was signed into law today by Governor Murphy. It provides the following timetable to raise the minimum wage:
$15 per hour by 2024, for most minimum wage earners;
$15 per hour by 2026, for minimum wage earners at seasonal businesses and small businesses;
$12.50 per hour by 2024, for agricultural minimum wage earners; and
New Jersey’s minimum wage will increase by 25 cents, from $8.60 to $8.85 per hour, effective January 1, 2019. For non-exempt employees making the minimum wage, employers will be required to pay an overtime rate of $13.28 for every hour worked over 40 in a work week, to comply with the State’s minimum wage requirements.
Employers should be aware that one of Governor Phil Murphy’s top legislative priorities is to increase the minimum wage to $15 per hour. Although the Legislature passed a $15-an-hour minimum wage bill in 2016, which was vetoed by then-Governor Chris Christie, neither Governor Murphy nor the Legislature has communicated a path forward to get another bill on the table.
As wage payment violations carry significant penalties in New Jersey, you should contact a member of Blank Rome’s labor & employment practice group if you have any questions about compliance with New Jersey’s minimum wage increase or any other wage and hour issues.
In an earlier Blank Rome Workplace post, we provided a preview of the New Jersey Paid Sick Leave Act. The Act goes into effect on October 29, 2018. Last week, the Department of Labor and Workplace Development, the state agency responsible for interpreting the Act, published a “Notice of Employee Rights” under the Act and a copy of that Notice/Poster is available here. The Notice must be posted by employers in conspicuous locations in every worksite in New Jersey and must be distributed to all New Jersey employees by November 29 and at the time of hiring for all new employees hired after October 29.
The Act imposes significant obligations on employers in New Jersey. You can contact a member of Blank Rome’s labor & employment practice group if you have any questions about what needs to be in your policies.
In Vitale v. Schering-Plough Corp., A-20-16 (Dec. 11, 2017), the New Jersey Supreme Court ruled that an employment contract that limits a worker’s right to sue a third party after an injury is unenforceable because it contravenes public policy.
Allied Barton Security Services (“Allied”) hired Plaintiff as a security guard. As a condition of employment, Allied required Plaintiff to sign an agreement entitled “Worker’s Comp Disclaimer” (the “Disclaimer”). Under the Disclaimer, Plaintiff released all rights he may have had against “any customer…of Allied Security to which [Plaintiff] may be assigned, arising from or related to injuries which are covered under the Workers’ Compensation statutes.” Continue reading “New Jersey Supreme Court Voids Waiver of Third-Party Liability in Employment Contracts”
A New Jersey Appellate Division panel—in Blake v. Board of Review, Dep’t of Labor, No. A-2940-15T3—held that a 2015 amendment to New Jersey’s Unemployment Compensation Law (“UCL”) does not authorize unemployment benefits to an employee who accepts a job offer from another employer but has that offer rescinded prior to commencing the new employment. The opinion, which was approved for publication on September 28, 2017, conflicts with another Appellate Division panel that came to the opposite conclusion just one month prior in McClain v. Board of Review, Dep’t of Labor, No. A-4319-15 (approved for publication on August 29, 2017). Both panels believed that the amendment’s plain language supported their respective interpretations. Continue reading “Panel Creates Split in Appellate Division over 2015 Amendment to New Jersey’s Unemployment Compensation Law”
The Third Circuit Court of Appeals recently held that a single isolated use of a racial slur may be sufficient to establish unlawful workplace harassment.
Background and Analysis:
On July 14, 2017, a three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled that a single racial slur may be sufficient to state a claim for unlawful workplace harassment.
In Castleberry v. STI Group, the plaintiffs—two African American general laborers working on a pipeline project—alleged that they were subjected to a hostile work environment when they were told by a supervisor that they would be fired if they “[n-word]-rigged” a fence that they had been instructed to remove. Defendants argued there was no precedent for a finding that a single racial epithet could be enough to create a hostile work environment. Judge Thomas Ambro, writing for the panel, rejected the defendants’ position, holding that the United States Supreme Court’s adoption of the “severe or pervasive” standard in harassment claims suggested that a “supervisor’s single use of a racial slur could be adequately ‘severe’ and sufficient to state a claim” for harassment.
The Third Circuit’s ruling clarified case law within the circuit (covering Delaware, New Jersey, and Pennsylvania) that has been somewhat in conflict for decades. Between 2001 and 2012, district courts within the circuit have used a number of different standards for determining whether a plaintiff has adequately pled workplace harassment. Some used the “severe or pervasive” standard, at least three used the “pervasive and regular” standard, and at least one case used the “severe and pervasive” standard. In its decision, the Court in Castleberry made clear that the proper standard for evaluating hostile work environment cases is whether the conduct is “severe or pervasive.”
In reversing the U.S. District Court for the Middle District of Pennsylvania’s dismissal of the plaintiffs’ claims, the Court held that the racially charged slur used in the presence of non-African American coworkers, coupled with threats of termination, could constitute sufficiently severe conduct that could result in the creation of a hostile work environment.
The Castleberry decision reminds employers that even a single isolated incident, such as a repugnant comment, can result in legal liability for discrimination or harassment. Employers should take affirmative steps to train employees, especially management personnel, that slurs and epithets based on any protected category (for example, race and/or color) are not appropriate in the workplace.
Employers should do the following:
Clearly communicate through employee handbook policies that discrimination and harassment will not be tolerated, and ensure that all employees receive a copy of the handbook and sign an acknowledgement.
Immediately and thoroughly investigate any complaints of discrimination (including harassment) and implement prompt remedial measures, which are designed to correct any prior issues and prevent similar conduct from occurring in the future.
Periodically train all supervisors and employees regarding discrimination and harassment recognition and prevention.