Lex Mundi Labor and Employment Desk Book

Transcription

1 Lex Mundi Labor and Employment Desk Book CONTACT INFORMATION: Gregory C. Parliman Wendy Johnson Lario 200 Campus Drive 200 Campus Drive Florham Park, NJ Florham Park, NJ USA- State of New Jersey 1. Is there a Baby WARN Act in your state and, if so, what does it require? Yes. The New Jersey Worker Adjustment and Retraining Notification Act adopts the federal WARN Act s notice provisions, requiring employers with 100 or more employees to provide advance notice of a plant closing or mass layoff, and requires the same notice required under the federal WARN Act to also be provided to the State Dislocated Worker Unit. N.J.A.C. 12: Are there special rules on releases/waivers in your state? No

2 3. Are there protected categories beyond Title VII in your state? Yes. Like Title VII, the New Jersey Law Against Discrimination ( NJLAD ) prohibits discrimination in employment on the basis of national origin, sex, race, color, and creed/religion. However, the NJLAD also prohibits employment discrimination on the basis of age, atypical hereditary cellular or blood trait, genetic information or refusal to submit to genetic testing or provide genetic information, liability for service in the armed forces of the U.S., handicap (including AIDs and HIV), marital status, domestic partnership status, and affectional or sexual orientation. N.J.S.A. 10:5-1 et seq. 4. What are the minimum wage and overtime rules in your state, beyond FLSA? Minimum Wage: The minimum wage in New Jersey is $6.15 per hour. That rate will increase to $7.15 per hour as of October 1, N.J.S.A. 34:11-56a4. Overtime: New Jersey requires employers to pay employees time and a half for any time worked in excess of forty hours per week. N.J.S.A. 34:11-56a et seq. New Jersey s exemptions for administrative, executive and professional employees are similar to the Fair Labor Standards Act. 5. Is there employment-at-will, or some other rule, in your state? New Jersey is an employment-at-will state. Without an agreement establishing a fixed duration, the employment relationship may be terminated at any time by either party with or without cause. There are exceptions to this rule in the following areas: workers compensation (Lally v. Copygraphics, 173 N.J. Super. 162 (App. Div. 1960), aff d 85 N.J. 668 (1981) and N.J.S.A. 34:15-39:1); reporting health and safety violations (LePore v. National Tool & Mfg. Co., 115 N.J. 226 (1989)); violations of public policy (Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980)); discrimination (Velantzas v. Colgate-Palmolive Co., 109 N.J. 189 (1988) and N.J.S.A. 10:5-12(d)); whistle blowing (N.J.S.A. 34:19-1 et seq.); and jury duty (N.J.S.A. 2B:20-17). 6. What are the obligations upon terminating an employee in your state? Final paycheck: In New Jersey, when employment is terminated or suspended, employees must be paid all wages no later than the regular payday for the pay period. Employees who are paid in full or in part on the basis of an incentive system must be paid a reasonable approximation of the wages due until the exact amounts can be calculated. N.J.S.A. 34: Payout of vacation/sick pay: In New Jersey, employers are not required to pay vacation and/or sick days upon separation unless they maintain a policy or are otherwise contractually bound to pay accrued, but unused, vacation and/or sick days upon separation. See Chrin v. Cambridge Hydrodynamics, Inc., No. A T5 (App. Div. Dec. 30, 2003); see also References: New Jersey does not have a law relating to employee references. 7. Are there Family and Medical Leave laws in your state beyond the FMLA and if so, what do they require? Yes. The New Jersey Family Leave Act ( FLA ) applies to all employers with 50 or more employees, regardless of whether some of the employees are located outside the state. N.J.S.A. 34:11B-1 et seq.; see - 2 -

3 also Callari v. Rehau Inc., 14 F. Supp. 2d 620 (D.N.J. 1998). The FLA requires covered employers to provide up to 12 weeks of leave in a 24 month period for the birth or adoption of a child or the serious health condition of a child, spouse, or parent. FLA leave need not be paid. The most significant differences between the federal Family and Medical Leave Act and the FLA are: (a) the FLA doesn t cover an employee s own serious health condition; and (b) in order for employees to be eligible for the FLA, they must be employed for at least 12 months within the state and for 1,000 base hours in the 12-month period immediately preceding the leave. 8. Please list any miscellaneous, interesting, or oddball laws in your state, and describe under what circumstances they pertain. a. Temporary Assignment for Injured Workers The New Jersey Workers Compensation Act does not specifically require an employer to provide temporary assignments to an injured worker. However, case law indicates that when an employee is under active medical treatment and has been released for restricted or light duty work, the employer is required to provide such work or pay the employee temporary disability benefits. Williams v. Topps Appliance City, 239 N.J. Super. 528 (App. Div. 1989). An employee who decides to reject light duty work offered by the employer is not eligible for temporary disability benefits. Harbatuk v. S & S Furniture Systems Insulation, 211 N.J. Super. 614 (App. Div. 1986). b. Meal or Rest Break No minor under 18 years of age may be employed or allowed to work for more than five continuous hours without an interval of at least 30 minutes for a lunch break. No period of less than 30 minutes shall be deemed to interrupt a continuous period of work. N.J.S.A. 34: c. Breast feeding and Expressing Breast Milk No state law specifically governs employers, but New Jersey law provides that mothers are entitled to breastfeed their babies in any place of public accommodation. N.J.S.A. 26:4B-4. d. Weekly Payment of Wages New Jersey law requires employees be paid the full amount of their wages at least twice a month on regular paydays designated in advance. N.J.S.A. 34: Each regular payday must be no more than 10 working days after the end of the pay period for which payment is made. If a regular payday falls on a non-work day, payment may be made on the next following work day, unless (a) a collective bargaining agreement provides otherwise, or (b) the employer has utilized the statutory provision permitting it to wait 10 working days after the end of the pay period to make payment. In the latter circumstance, if a regular payday falls on a non-work day, payment must be made on the preceding work day. N.J.S.A 34: Paydays for bona fide executive, supervisory and other special classifications of employees may be less frequent than twice a month; however such employees must be paid in full at least once each calendar month on a regularly-scheduled basis. N.J.S.A. 34: e. Criminal History in Job Applications The New Jersey Division on Civil Rights ( DCR ) takes the position that a private employer may not inquire into an applicant s arrest record. DCR, A Guide for Employers to the LAD, p. 13 (1989)

4 However, a private employer may inquire into an applicant s conviction record and may use the conviction record to determine a person s qualifications for employment, volunteer work, or other performance of services if the conviction record is related to the position sought. DCR, A Guide For Employers to the LAD, p. 13 (1989); N.J.A.C. 13: et seq. If a conviction record is used to disqualify a person from employment or the performance of services, whether compensated or not, the applicant must be provided adequate notice, and a reasonable period of time, to complete or challenge the accuracy of the information in the conviction record. N.J.A.C. 13:59-1.6(b). f. Notice of Electronic Surveillance Recording conversations in New Jersey requires only one party s consent. N.J.S.A. 2A:156A-4(d). Furthermore, the New Jersey Wiretapping and Electronic Control Act ( Act ) excludes from its definition of "electronic, mechanical, or other device" devices that are furnished to, and used by, employees in the course of business. N.J.S.A. 2A:156A-1 et seq. Thus, employers that intercept employee communications in the course of their business are not subject to liability under the Act. N.J.S.A. 2A:156A-2(d) (1). The Act specifically provides that it is lawful for an employee to intercept the communication of another employee, customer, supplier, or contractor if interception "is a necessary incident to the rendition of [the employee s] service or to the protection of the rights or property of the provider of that service." N.J.S.A. 2A:156A-4(a). The Act does not apply to videotaping. See State v. Diaz, 308 N.J. Super. 504 (App. Div. 1998). The New Jersey Board of Public Utilities ( NJBPU ) issued a series of orders regarding the use of monitoring and recording equipment. To monitor phone calls, employers must: (1) be a business subscriber and notify the NJBPU of its intention to monitor in writing; (2) use the monitoring and/or service observing equipment only for training, retraining, supervisory assistance, and/or measurement of service levels; (3) inform all employees in writing that they are subject to monitoring before the employer begins monitoring; (4) label the telephone instruments being monitored with notification stickers. (5) arrange through the telephone companies providing service in New Jersey for notification in telephone directories to potential callers of the use of monitoring equipment by the employer. Board of Public Utilities, Decision and Order, Docket No Note that New Jersey courts recognize the common law privacy tort of intrusion upon seclusion, and [o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992). g. No Smoking Laws The New Jersey Smoke Free Air Act bans smoking in workplaces, restaurants, bars, and other indoor areas. Building owners and operators are required to ensure that everyone on the premises complies with the smoking ban. Any person having control of an indoor public place or workplace must order a person who is observed smoking to stop. If the smoker refuses, the person having control of the premises is required to order the smoker s departure and removal from the property. Furthermore, smoking is prohibited within 25 feet of any opening to an indoor public place or workplace. This provision applies to smoke break areas outside of buildings, as well as outdoor patios and decks that are attached to buildings. N.J.S.A. 26:3D-55 et seq

5 h. Identity Theft Prevention The New Jersey Identity Theft Prevention Act ( ITPA ) prohibits any person, including any public or private entity (regardless of the number of employees), from: Publicly posting or displaying the Social Security number of employees, contractors, customers, vendors and anyone else with whom the employer does business; Printing or displaying a Social Security number on the outside of materials that are mailed; Printing a Social Security Number on any card required for the individual to access products or services; Requiring an individual to transmit his or her Social Security Number over the Internet, unless the connection is secure or the Social Security Number is encrypted; and Requiring an individual to use a Social Security Number to access an Internet web site, unless a password or other authentication device is also required to access that web site. N.J.S.A. 56: The ITPA also requires businesses to destroy all paper and electronic records containing personal information. Personal information includes an individual s first name or first initial, and last name combined with the person s: (1) Social Security Number; (2) driver s license number or State identification card number; or (3) credit or debit card account number in combination with any required security code, access code, or password permitting access to the individual s financial account. N.J.S.A. 56:8-161 and 56: Finally, the ITPA requires any business that compiles or maintains computerized records containing personal information to notify any person whose personal information is reasonably believed to have been accessed by an unauthorized person. N.J.S.A. 56: Does your state have a law requiring employers to give employees access to their personnel records? Employees do not have a statutory right to access their personnel files, but employees may have a cause of action under state law if they request access to personnel files to investigate possible discrimination and are discharged in retaliation. Velantzas v. Colgate-Palmolive Co., 109 N.J. 189 (1988). Employees and former employees are entitled to access to records of their exposure to toxic materials. N.J.S.A. 34:6A Does your state outlaw or restrict drug tests, alcohol tests, genetic tests or any other kind of testing? Drug and Alcohol Testing: Drug testing by employers is not regulated by statute, but the New Jersey Supreme Court has concluded that mandatory random drug testing by private employers may be an invasion of privacy sufficient to constitute a violation of public policy. Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992). However, when employees hold safety-sensitive positions that are so fraught with hazard that the public interest outweighs individual privacy rights, employers may conduct mandatory drug and alcohol testing. Id. at 102. Genetic Testing: The Genetic Privacy Act states that [n]o person shall obtain genetic information from an individual, or from an individual s DNA sample, without first obtaining informed consent from the individual or the individual s representative... As such, employers may only conduct voluntary genetic testing of employees after having obtained express informed consent. See N.J.S.A. 10:5-45. AIDS Testing: The New Jersey Division on Civil Rights regulations prohibit the use of employment tests that, in fact or in effect, screen out handicapped persons unless the test is shown to be job-related

6 Individuals with HIV or AIDS are determined to be handicapped under New Jersey law. See N.J.A.C. 13: and N.J.S.A. 10:5-5(q). 11. Does your state have any special rules on the payment of sales commissions? Commissions are included in the definition of wages under New Jersey s Wage & Hour Law. As such, all private employers must pay eligible employees their commissions at least twice a month. Further, each payday must be no more than ten (10) working days after the end of the pay period. N.J.S.A. 34: and What are the basic rules on enforcing non-competes and related agreements in your state? Non-compete agreements will be enforced if they are reasonable under all circumstances. A determination of what constitutes reasonableness generally requires an analysis of whether the non-compete (1) protects the legitimate interests of the employer; (2) imposes an undue hardship on the employee; and (3) is injurious to the public. The New Jersey Supreme Court has ruled that geographic and time restrictions that exceed the boundaries necessary to protect the employer may be modified by a court. Whitmeyer Bros., Inc. v. Doyle, 58 N.J. 25 (1971); Solari Industries, Inc. v. Malady, 55 N.J. 571 (1970)