- What’s in the Works for New Jersey Employers
- April 6, 2016 | Authors: Richard C. Mariani; Evan J. Shenkman
- Law Firm: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Morristown Office
- Since the beginning of 2016, the New Jersey Legislature has been busy introducing bills that would impose new requirements on New Jersey employers and employees. Those new bills are described below.
Tax Credits for Hiring the Unemployed
New Jersey Senate Bill S889, introduced on January 12, 2016, and referred by the Senate Labor Committee to the Senate Budget and Appropriations Committee on February 8, 2016, would establish a program under which employers of 100 or fewer full-time employees would be eligible for a tax credit for each eligible individual employed by the employer. The bill defines eligible individuals as someone, who was not previously employed by the employer and who did not have full-time employment for 30 or more days prior to being hired as a full-time employee. S-889 applies to employers where the average number of full-time employees during the tax year for which the tax credit is provided exceeds the average number of full-time employees employed by the employer during the previous tax year. If passed, this law would apply to tax years 2016, 2017, and 2018.
Punitive Damages Against Public Entities and Employees
Senate Bill S905, introduced on February 4, 2016 and referred to the Senate Judiciary Committee, would amend the Law Against Discrimination (LAD) and the Conscientious Employee Protection Act (CEPA) to expressly prohibit the award of punitive damages against either a public entity or a public employee acting within the scope of his or her employment in any action under the LAD or CEPA.
Reporting Child Pornography Found on Computers
Assembly Bill A2505, introduced on February 4, 2016, would require information technology professionals employed by private entities—and all employees of public entities—who know or have reasonable cause to believe that a file containing an image depicting child pornography has been transmitted to, or is stored on, an electronic communication system to report that information immediately to an investigative or law enforcement officer. The law would permit public employees to report the matter to their supervisor as an alternative to reporting the matter to law enforcement. The bill also provides that any person who reports information pursuant to the bill would be immune from civil and criminal liability arising from the report, unless the person acted in bad faith or with malicious purpose. The bill would also prohibit employers and individuals from taking any discriminatory or retaliatory action against an employee who in good faith makes a report or causes a report to be made.
A person who violates the law would be liable for a fine of up to $1,000. The bill provides that an employee who is discharged from employment or discriminated against because he or she made a report may sue in the Superior Court and seek reinstatement with back pay or other legal or equitable relief. While the bill does not require employees of private entities (other than information technology professionals) to report child pornography, it does extend all of the protections of the law to employees of private entities if they do make such a report.
Reporting Terminations to the State
Assembly Bill A2534, introduced on February 4, 2016, would, if enacted, expand employers’ obligation to report personnel actions to the New Jersey Department of Human Services to include reporting terminations. Under existing law, employers are required to report relevant information only as to persons who were hired, rehired, or returned to work after a leave without pay.
Jurisdiction Over Breach of Duty of Fair Representation Cases
Assembly Bill A2541, introduced on February 4, 2016, would grant to the New Jersey Public Employment Relations Commission (PERC) exclusive jurisdiction over all claims against labor organizations for breaches of the duty of fair representation. According to the bill, courts or administrative agencies other than PERC would not have jurisdiction over any such claim, except for appeals made to courts from commission determinations, decisions, rulings, or orders.
LAD Protections for Persons Having Liability for Service in the Armed Forces
A bill introduced in the New Jersey Senate on January 12, 2016 (S726) would extend full protection under the LAD to persons having liability for service in the Armed Forces of the United States. Currently, only some of the protections of the LAD apply to such persons. The bill would also amend an existing law that already requires contractors and subcontractors on state construction contracts to guarantee equal employment opportunity to Vietnam veterans, making it apply instead to all veterans.
Interns Employed in New Jersey
Two bills reintroduced in 2016 (S625 and A1456), collectively designated the New Jersey Intern Protection Act, would extend to interns the protections of the LAD, the CEPA and the Worker Freedom from Employer Intimidation Act. Prior versions of the bill failed to pass. Under all three laws, an intern would be defined as an individual who performs services for an employer on a temporary basis whose work:
- provides training or supplements training given in an educational environment such that the employability of the individual performing the work may be enhanced;
- provides experience for the benefit of the individual performing the work; and
- is performed under the supervision of existing staff.
State Minimum Wage Increase
On February 4, 2016, a bill was proposed for introduction in the New Jersey Assembly (A15) that would raise the state’s minimum wage from $8.38 per hour to $15 per hour, with future annual increases tied to the consumer price index. New Jersey’s minimum wage was most recently raised to its current rate in 2015 by New Jersey voters (by a 3to2 margin), but did not increase in 2016. If the bill becomes law, it will go into effect immediately upon passage.
State Minimum Wage for Tipped Employees
Two bills introduced in January 2016 (S838 and A1123) would effectively increase the minimum hourly wage for employees who customarily and regularly receive gratuities or tips to at least 69 percent of the minimum wage, with the remainder of the compensation comprising tips and gratuities. The bills would also require every employer to provide substantial evidence that the amount claimed for the credit of gratuities or tips was actually received by the employee and that no part of the amount claimed was returned to the employer. Prior versions of these bills were unsuccessful.
The Healthy Workplace Act Reintroduced
The Healthy Workplace Act (S868) was reintroduced in the New Jersey Senate on January 12, 2016. If enacted, it would dramatically alter the landscape of labor and employment law in New Jersey by offering legal protection to employees alleging an “abusive work environment” unrelated to any protected category—and from retaliation for complaining about the same. The Healthy Workplace Act defines an “abusive work environment” as any workplace in which an employee is subjected to abusive conduct severe enough to cause physical or psychological harm. It broadly defines “abusive conduct” as conduct that a reasonable person would find hostile, including threatening, intimidating, or humiliating verbal or physical conduct, gratuitous sabotage or undermining of an employee’s work performance, attempts to exploit an employee’s known psychological or physical vulnerability, or repeated infliction of verbal abuse such as the use of derogatory remarks, insults, and epithets. Remedies include injunctive relief, reinstatement, removal of an individual who engages in abusive conduct from the workplace, lost wages and benefits, compensation for medical expenses and emotional duress, and costs and attorneys’ fees. Punitive damages may also be awarded if the violation includes an adverse employment action or results in lost work time, earnings, or other benefits. Versions of this bill were unsuccessfully introduced in prior legislative sessions.
Equal Pay for Equal Work and Discriminatory Pay Practices
On February 4, 2016, the New Jersey Senate Labor Committee approved a bill (S992)—which the Senate passed on February 11—that would amend the LAD in several important ways:
- It would make it unlawful for employers to pay employees of one sex less than they pay employees of the other sex for “substantially similar” work, unless the employer satisfies a multipart test (demonstrating that there are legitimate factors other than sex to account for the disparity, there was reasonable application of those factors, and so on).
- It would prohibit employers from retaliating against employees who disclose information about job titles; rates of pay; or the race, gender, age, national origin, or other protected characteristics of employees or former employees.
- It would restart the statute of limitations for discriminatory pay claims each time a paycheck is issued in furtherance of discrimination, reflecting language in the federal Lilly Ledbetter Fair Pay Act of 2009. Further, it would allow back pay for the entire period of time during which the violation continued (in contrast, the federal law has a two-year cap on back pay).
- It would prohibit employers from requiring employees to agree to a reduction of any applicable statute of limitations.
- It would require employers contracting with the state to provide certain equal employment opportunity and compensation information.
- It would provide for the award of treble damages for violations of its provisions.
A parallel bill (A2750) was introduced in the Assembly on February 8, 2016.
Violations of the New Jersey Wage Payment Law
A bill introduced on January 27, 2016 (A862) would strengthen the enforcement powers of the New Jersey Department of Labor and Workforce Development (NJDOL) and would expand the remedies available to aggrieved workers. Among other changes, it would extend the statute of limitations for wage claims to six years; would create a rebuttable presumption in favor of the employee against an employer lacking sufficient payroll records; would require employers found to owe wages to pay not only the wages due, but also liquidated damages equal to 200 percent of the wages owed; and, if it were found that an employer owed $5,000 or more in wages to an employee, it would prompt an audit by the NJDOL and a recommendation to the Division of Taxation in the New Jersey Department of the Treasury that the Division conduct an audit of the employer with respect to the withholding and payment of payroll and other taxes.
Time Off to Attend Functions at Public Schools
Another bill (A904), introduced on January 16, 2016, would require employers to allow employees who have a child in public school to take up to eight hours of leave time in any 12-month period to attend school conferences, meetings, functions, or other events. This bill is intended to remove a potential barrier to parents who seek to become more actively involved in their children’s schooling and academic careers. This bill does not reduce an employee’s right to leave under the New Jersey Family Leave Act, the federal Family and Medical Leave Act, or any collective bargaining agreement or other employer policy. Employers would be required to post notice of employees’ rights and obligations under the law. If enacted, the law would be enforced by the Division on Civil Rights or by private action in the Superior Court. Prior school activity leave bills did not survive past legislative sessions.
LAD May Include Breastfeeding
On February 4, 2016, another bill was introduced in the New Jersey Assembly (A2294) seeking to amend the LAD to prohibit employers from firing or otherwise discriminating against women because of breastfeeding or expressing breast milk during breaks. The bill also would require an employer to provide reasonable break time each day and a suitable location for an employee who is breastfeeding to express her milk in private. Similar bills were unsuccessful in past legislative sessions.
Employees Affected by a State of Emergency
A New Jersey bill (S1562), introduced On February 16, 2016, aims to protect workers unable to work due to a state of emergency. First, it would prohibit an employer from taking any adverse employment action against an employee unable to actively work or perform regular duties at an employer’s place of business due to a governor-declared declared state of emergency. Next, it would prohibit an employer from requiring an employee to use any sick, personal, or other leave, paid or unpaid, for an absence from work due to a state of emergency. Certain key medical personnel and employees and contractors of public safety agencies, public emergency services, and public utility employees are excluded from the bill’s coverage. Violations of the law would be subject to a civil penalty of up to $5,000 for the first violation and $10,000 for each subsequent violation, collectible by the Commissioner of the NJDOL in a summary proceeding.
Discrimination Against Unemployed Applicants
On February 16, 2016, a bill (S1617) was introduced seeking to prohibit employers from discriminating against an applicant for employment because the applicant is currently unemployed. Violations of the law would result in civil penalties of up to $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation. The bill would not prohibit an employer from inquiring into an applicant’s employment history and the circumstances surrounding the applicant’s separation from prior employment or considering any job-related qualifications. The bill also expressly allows employers to consider (or give priority to) only internal job candidates.