Last Updated: January 2012 NEW JERSEY EMPLOYMENT LAW Day Pitney LLP Gregory C. Parliman Table of Contents 1. Overview 2. General Issues 3. Employment Policies and Employee Handbooks 4. Hiring Process 5. Compensation and Benefits 6. Termination of Employment 7. Immigration 8. Federal Law 9. Other State Specific Considerations 10. Employment Law Resources 1. Overview It is critical that social sector organizations familiarize themselves with relevant employment laws that affect their employees and their organization. Often social sector organizations begin with like-minded persons informally coming together for the purpose of addressing a challenging social problem. However, regardless of the ties that bind those who work together on a social mission, the social sector organization must comply with applicable employment laws and implement relevant policies and procedures. The following provides an overview of federal and New Jersey employment laws that could apply to social sector organizations and their employees located in New Jersey. This overview does not provide a complete and comprehensive analysis of all potentially applicable employment laws in New Jersey and the U.S. and it should not be acted upon without specific legal advice based on particular situation. Employment laws can differ greatly by state; if your organization and employees are located in another state, you should consult the employment law pages of LawForChange for that state.
2. General Issues a. At Will Employment The conventional relationship between an employer and an employee hired for an indefinite period of time is called employment at will. Under this arrangement and setting aside the potential applicability of a number of special laws, either the employer or the employee may terminate the employment relationship at any time, with or without cause, and with or without advance notice. In the absence of a written contract or other evidence indicating that an employee may be terminated only for cause, employment is generally presumed to be at will. It is important to remember, however, that there are a number of special laws, both federal and state, that limit an employer s unfettered right to terminate traditional at will employees. These laws, many of which are identified and discussed below, prevent employers from firing any employee, whether at will or not, for illegal reasons (e.g., discriminatory reasons, whistleblowing, or engaging in certain activities protected by law). b. Temporary Employment and Consulting Relationships In addition to traditional at will employees or contract employees, many employers may use the services of temporary employees, independent contractors, or consultants (and employees of independent contractors or consultants). When an employer hires an employee for a temporary period or for a season, the temporary employee is still an at will employee of the employer, and the relationship is governed by the same laws as those applicable to at will employees. As with permanent employees, legally mandated benefits, such as workers compensation insurance and unemployment insurance, must be offered to temporary employees. Optional benefits, such as 401(k) plan and medical plan coverages, may not need to be offered to temporary employees (but in all cases such determination must be based on the governing plan documents, as well as other factual scenarios (including the hours worked and length of the temporary employment relationship)). An independent contractor or consultant is not considered an employee of the employer. Instead, an individual independent contractor is self-employed, and payments made to the independent contractor are considered contract payments rather than wages. The U.S. Internal Revenue Service ( IRS ) and other governmental agencies have a variety of tests for determining whether a worker is an employee or an independent contractor, which, despite variations among the tests, tend to share the same primary factors. Essentially, workers who are performing the same job and performing under the same supervision as
regular employees are usually deemed to be employees. Additional factors shared by the various tests include: the degree of control the employer exercises over the worker s hours and manner of performance; whether the employer provides the worker s tools and/or employee benefits (e.g., medical insurance, vacation pay); the length of service; and the method of payment (e.g., is the worker paid hourly or on a project basis); and whether the worker is in the business of performing such services for others or holds him/herself out as offering such services to others. The consequences of incorrectly classifying an employee as an independent contractor can be far-reaching and expensive (e.g., liability for unpaid payroll taxes and penalties, administrative claims for employee benefits provided to regular employees (as well as potential loss of tax-qualification of certain employee benefit plans), liability for unpaid unemployment insurance and workers compensation premiums, increased exposure to governmental audits, and potential exposure to employment-related civil suits and administrative claims). c. Employment Agreements While it is not required or necessary to enter into an employment agreement with any employee, social sector organizations may wish to enter into written employment agreements with one or more key leaders. If an organization chooses to enter into an employment agreement with a particular employee, such agreements typically spell out the term of employment (even if it is at will ), duties, compensation and circumstances under which the agreement may be terminated by either party. In addition, such agreements often contain provisions requiring key employees to keep information confidential even after they leave employment and barring them from becoming employed by certain competing organizations for a limited period of time following termination. The provisions of these agreements and whether any such agreement should be used should be discussed with an employment attorney before they are presented to an employee or prospective employee. d. Government Contractors A number of laws impose specific requirements on employers that contract with the government or a government-funded agency and on employers who receive grants or other funding from the government. These laws include special equal opportunity laws, affirmative action laws, prevailing wage laws, and drug-free workplace laws. The application of the laws depends on the value of the contract or funding and/or the number of employees in the company.
e. Employee Records Under New Jersey employment laws, an employer is either required to or should maintain the following records on each employee: Every employer is required to keep wage and hour records which include the name of each employee, the employee's birth date if the employee is under 18, the total hours worked each day and each week, earnings, regular hourly wage, gross wage, net wage, itemized deductions, and the basis on which wages are paid. Every employer is also required to maintain records containing each employee's full name, address, and social security number, total remuneration paid each pay period, which includes commissions and bonuses, special payments, date hired, information to determine weekly wage for each calendar week, the number of base weeks worked, and the wages paid. These records should be kept for 6 years. Employers must retain copies of injury, illness, and fatality records. Employers must provide information about hazardous substances including chemical abstract service number and chemical name, use of each substance, quantity of each substance produced, stored, used or shipped to or from facility, methods of storage and/or disposal of substance, and total amount of each substance discharged into the environment. In addition, employers must forward copies to Department of Environmental Protection and update them bi-annually. An Emergency Services Information Survey must be kept regarding each hazardous material in facility including name of material, Employers must also keep track of their Department of Transportation identification number and hazard class designation, approximate range of maximum inventory quantity, units of measure, major methods of storage or types of containers; and the level of concentration of the hazardous chemical in the mixture. Employers who employ minors under the age of 18 must keep a record of the employment certificate or special permit for each minor. In addition, every employer is required to keep the following information for all employees under 19 years of age: name, date of birth, number of hours worked each date, start and end time for each day worked, the start and end time for each meal period, and the amount of wages paid. The information must be kept for at least one year after the entry of the record. Every employer is required to maintain records for each employee that takes leave under the New Jersey Family Leave Act for at least two years. In general, under federal laws, an employer is either required to or should maintain the following records on each employee:
1 year documents related to hiring, accommodations, promotions, discipline, and discharge, including: job applications, resumes, or any other form of employment inquiry whenever submitted in response to an advertisement or notice of job opening, including records pertaining to failure or refusal to hire any individual; records relating to promotion, demotion, transfer, selection for training or apprenticeship, layoff, recall, or discharge of any employee; job orders submitted to an employment agency or labor organization for recruitment of personnel; test papers completed by applicants or candidates for any position; results of any physical examination if such is considered in connection with a personnel action; advertisements or notices relating to job openings, promotions, training, or opportunities for overtime work; requests for reasonable accommodation for disability or religious observance and what accommodation, if any was granted. This will cover the limitations period of claims under Title VII of the Civil Rights Act of 1964 ( Title VII ), the Americans with Disabilities Act ( ADA ) and the Age Discrimination in Employment Act ( ADEA ) (see Section 8 below for summaries of these and other federal laws). 6 years Payroll records listing employee s full name, home address, date of birth, sex, occupation/job title, time of day and day of week on which workweek begins, regular rate of pay, the basis for determining regular rate of pay (including any payments excluded from the regular rate of pay), straight-time earnings, overtime premium earnings, additions/subtractions from wages for each pay period, total wages for each pay period, and date of payment and pay period covered by each payment. 2 years Supplementary payroll records such as basic time sheets or production records that contain the daily starting and stopping times of individual employees and/or amount produced that day, wage rate tables for computing piece rates or other rates used in computing straight-time earnings, wages, salary, or overtime, and any records needed to explain the wage rate differential based on sex within the establishment (e.g., production, seniority, or other bona fide business criteria). Such information may be necessary in responding to claims under the FLSA, including the Equal Pay Act. 1 year after plan terminates Employee benefit plan records including: pension plans, insurance plans, seniority systems, merit systems You should be aware that certain payroll records should be kept indefinitely for purposes of qualified pension and 401(k) plans. This includes benefit plans covered by ERISA as well as set plans for advancement, layoff, or reinstatement based on seniority, merit, or some other formula which will be pertinent to either an issue under a collective bargaining agreement or claims of age or other discrimination. 3 years Records related to qualified family and medical leave including: basic payroll and employee data (used to determine qualification for protection under the Family and
Medical Leave Act ( FMLA )), dates and hours FMLA leave is taken, hours worked in 12 months prior to start of leave, copies of employee notices furnished to employer, copies of notices provided to employee of rights and responsibilities under FMLA, employer polices applicable to use of family and medical leave, documents verifying premium payments of employee benefits (both employer paid and employee portion of premium), records of any disputes with employees over use of FMLA leave. These documents will assist in supporting compliance with FMLA. 30 years Records of employee exposure to toxic substances. Such records are required by the Occupational Safety and Health Act ( OSHA ). 5 years Occupational illness or injury records. These records, required by OSHA, should be kept for 5 years after the year in which the injury was sustained or treatment ended, whichever is longer. 3 years or 1 year after termination I-9 Employment Eligibility Verification Form. These forms must be kept for a minimum of 3 years or 1 year after the employee s employment ends, whichever is longer. 4 years Tax records related to income and employment tax withholdings. This is required by the Federal Insurance Contribution Act and the Federal Unemployment Tax Act. At a minimum, social sector organizations should maintain one or more personnel files for each employee, containing any offer letters and agreements signed by the employee, required wage and hour records, records regarding promotion, additional compensation, termination, disciplinary action, and any documents used to determine the employee s qualifications for employment. Medical records, immigration information, and other confidential documents, such as reference checks and investigative files for harassment claims, should be kept separately from an employee s regular personnel file and should be kept confidential. 3. Employment Policies and Employee Handbooks Every employer, except perhaps for those with only two or three employees, should have written employment policies. Written policies serve to clarify expectations, reduce risk and, in some cases, comply with statutory requirements such as those in the Family and Medical Leave Act ( FMLA ). In addition, both state and federal law require that certain laws be posted in an area accessible to all employees. There are several services that provide updated posters containing these notices. Most concern compliance with the FMLA, Title VII, the Uniformed Services Employment and Reemployment Rights Act ( USERRA ), workers compensation, the organization s anti-harassment policy and state and federal wage and hour laws.
Policies for any employment manual or handbook should include: a. Nondiscrimination Under federal law, employers are prohibited from discriminating on the basis of race, color, religion, sex, national origin, veteran status, pregnancy, age, or disability. New Jersey law also prohibits discrimination on the basis of certain additional categories including marital status, familial status, civil union status, affectional or sexual orientation, gender identity or expression, atypical cellular or blood trait, genetic information. The discrimination laws prohibit an employer from making employment related decisions, such as hiring, firing, promotions, pay increases, or conditioning other terms and conditions of employment on a person s protected status. Some local communities may have ordinances that provide for even greater protections, so it is important to check those local laws for any additional requirements. Failing to comply with discrimination laws can result in expensive lawsuits or administrative investigations. In general, these laws require that all employees be treated equally without regard to their protected status. In addition, employers may not retaliate against employees who seek to further or enforce employment discrimination laws. Employers also should be aware of their obligations to make reasonable accommodations for employees where the employees disabilities or religious beliefs conflict with employment requirements. These obligations, which exist under both federal and state law, are unlike other equal employment opportunity laws in that treating all employees equally will not satisfy the obligations. Instead, employers must take positive steps to reasonably accommodate employees with disabilities and specific religious practices. See federal laws regarding discrimination in Federal Law section below. See New Jersey laws regarding discrimination in Other State Specific Considerations section below. b. Harassment Both federal and New Jersey laws also prohibit harassment in the workplace against any of the classes of employees protected under federal and state discrimination law. Two types of conduct constitute harassment in the workplace. The most obvious occurs when a supervisor makes a job promotion or benefit dependent on the receipt of sexual favors (often called quid pro quo harassment). The other type occurs when an employee has to endure comments, physical contact, physical gestures, or other behavior that creates an offensive atmosphere for that employee (often called hostile environment harassment). While sexual harassment is most often thought of, harassment on the basis of race, disability, age, national origin, etc. is also prohibited.
An employer is required to take all reasonable steps necessary to prevent the occurrence of either type of harassment, which includes having an appropriate and comprehensive policy against harassment. For this reason, a harassment policy that both expressly prohibits harassment and provides avenues for employees to report harassing behavior are a must in any workplace. Employees should be encouraged to report any harassing behavior to their supervisor and/or a human resources person or senior manager should be designated to investigate such claims. Reasonable steps to prevent harassment would also include periodic dissemination of the harassment policy, harassment training (particularly for supervisors), investigations of any complaints, and, when harassment occurs, prompt and effective remedial action. As with discrimination, employers cannot retaliate against an employee who complains about harassment. c. OSHA Injury and Illness Prevention The Occupational Safety and Health Act ("OSHA") regulates work place safety for employers in businesses which affect commerce. Under OSHA, employers are required to furnish their employees with a place of employment free from recognized hazards that are causing, or are likely to cause, them death or serious physical harm. Employers must also comply with occupational safety and health standards which are issued under the Act. "Right to know" regulations issued under OSHA require that employees in certain industries be warned about hazardous materials and chemicals to which they may be exposed. OSHA sets forth a detailed procedure for adopting safety and health standards and provides for inspection, investigation and enforcement. Citations issued for noncompliance can result in civil and criminal penalties, including fines and, for violations causing the death of an employee, imprisonment. States are allowed to develop and enforce their own plans setting and enforcing occupational safety and health standards. Some industries have specific statutes which regulate employee safety and health. d. Workplace Violence Employers should take steps to prevent violence in the workplace. This may include policies against bringing weapons into the workplace, taking prompt and appropriate action against any acts or threats of violence, and creating an environment that will reduce the likelihood of violence in the workplace. 4. Hiring Process The hiring process involves receiving and reviewing applications, interviewing potential candidates, and selecting the employee. Several federal and New Jersey laws limit what employers can ask during the process.
Generally, employers that devote substantial time and attention to the hiring process have fewer employee problems. They are more likely to (1) hire and retain qualified employees, (2) be aware of the potential problem areas, and (3) avoid or reduce their exposure to wrongful discharge, discrimination, and other employment-related lawsuits. In general, an employer may hire whomever it desires, as long as the decision does not discriminate on the basis of protected characteristics. Characteristics that are protected under federal employment discrimination laws and/or the New Jersey Law Against Discrimination ( NJLAD ) are race, color, religion, sex, national origin, ancestry, age, disability, marital status, familial status, civil union status, or sexual orientation, gender identity or expression, atypical cellular or blood trait, genetic information and liability for service in the armed forces. Discrimination may occur in one of two ways. First, the employer's hiring system may be set up in a way which discriminates, e.g., by eliminating certain groups of persons from employment consideration on the basis of a protected characteristic. Second, the hiring system itself may not be discriminatory, but the individuals who administer it may discriminate when dealing with a particular person or category of people. For example, an individual interviewer may decide not to hire women because he or she feels they could not meet the necessary physical requirements or the preferences of customers. The Equal Employment Opportunity Commission ( EEOC ) has issued Uniform Guidelines on Employee Selection (the "Guidelines") to address selection procedures that are facially neutral but have an adverse impact upon persons of a particular race, color, religion, sex or national origin. While the Guidelines are not legally binding upon employers, courts look to them in determining whether neutral employee selection procedures have had an adverse impact on the employment opportunities of protected groups. If a neutral selection procedure is found to have an adverse impact, an employer must demonstrate that it is justified by business necessity. Under the Guidelines, this usually means the employer must validate the selection procedure by demonstrating a relationship between the criteria used in the selection procedure and job performance. a. Recruiting Newspaper ads, brochures and other solicitation forms should be screened for wording that could later be the basis of a wrongful discharge or discrimination case. These materials must be free of language that could arguably constitute evidence of race, sex, religious, national origin, age or disability discrimination. They also should be free of language that implies a fixed duration of employment. Generally, an employer is not required to state that it is an equal opportunity or affirmative action employer, or that women and minorities are encouraged to apply.
Inclusion of these phrases will not prove the absence of discrimination, if an advertising program is otherwise discriminatory. It is a good idea, however, to include equal opportunity language at the bottom of a job advertisement: "The X Company Is An Equal Opportunity Employer." Employers under the jurisdiction of the U.S. Department of Labor's Office of Federal Contract Compliance Programs ( OFCCP ) have specific equal opportunity employment hiring requirements. Employers with 50 or more employees and federal government contracts of $50,000 or more, and subcontractors with government contracts of $10,000 or more, must undertake affirmative steps to encourage the recruiting and hiring of women, minorities, veterans and handicapped persons. In addition, equal employment opportunity language must be contained in such an employer's job advertisements. b. Interviewing It is important for interviewers, like recruiters, to know how to properly conduct an interview. They should avoid "over selling" and know precisely what they can and cannot say to applicants. Interviewers should never promise "permanent employment" or state that "employment will last as long as the job is satisfactorily performed" or "that an employee will be terminated only for just cause." Interviewers should specifically mention that employment is "at will." Likewise, when discussing the employer s employee benefit scheme, interviewers should be clear that the scheme that they are describing is the current program only. Many employers have found that their ability to end or terminate certain expensive programs (such as employer-provided pension plans or retiree medical programs) is hampered by past promises made in employment agreements, offer letters, or recruiting scripts. Companies should provide interviewers with written instructions listing what they should and should not discuss. After each interview, the interviewer should complete written documentation or an evaluation sheet, verifying that the employment at will status of all employees was communicated to the candidate during the interview. This documentation can later be used as evidence if a lawsuit occurs. Employers should also be cautious about failing to disclose business plans during the interview process that will affect the jobs of new hires. Courts in New Jersey have held that employers have an affirmative obligation to disclose any material facts, such as an upcoming reduction in force that might affect the job in question, when recruiting new hires.
c. Testing The use of tests to measure the qualifications of applicants can be a valid means of evaluating job ability and fitness. Employment tests have, however, been the subject of considerable criticism in recent years due to the possibility that they might be discriminatory. If a larger percentage of persons scoring below the cutoff mark belong to a protected class (minorities, females, older applicants, etc.), a test may be found to be unlawfully discriminatory. If an employer cannot demonstrate that a test is related to the ability to perform the job for which the test is given, its use may be deemed a pretext for unlawful discrimination. Once an employer decides to utilize a testing procedure, it should consider using professionally developed tests. Aside from the fact that these tests are frequently better prepared, the test's developers, who are professionals in the field, are usually available to testify as experts about the validity of the test if it is challenged. Most homemade tests are difficult to validate unless they qualify as per se valid, e.g., typing tests. The EEOC s Uniform Guidelines On Employee Selection Procedures are pertinent in testing matters. Under the Guidelines, the three principally accepted methods for determining the validity of a test are criterion-related, content and construction validity. "Criterion-related validity" means that the test accurately predicts work behavior or other criteria of employee competency, as evidenced by actual work proficiency. "Content validity" is established if the content of the test closely duplicates the actual duties performed in a particular position. "Construction validity" requires identification of general mental and psychological traits believed necessary to the successful performance of the job in question. An employer should periodically review the results of any preemployment test to ensure that its use is not excluding applicants in one or more of the protected classes. d. Immigration Reform and Control Act The Immigration Reform and Control Act and some state laws prohibit the employment of "unauthorized aliens," penalizing employers who hire them. The law requires every employer to verify the employment eligibility and identity of every candidate after November 6, 1986. Once an employee is hired, the INS Form I-9 must be completed by the employee and employer. In addition to completing the Form I-9, the employee must provide a document or documents that establish his or her identity and his or her employment eligibility. The employer should review the document(s) provided by the employee to ensure that they appear to be genuine and to relate to the individual. If an employee is unable to provide the required document(s) within three business days of
being hired, he or she must at least produce a receipt showing they have applied for the necessary document(s). The employee must produce the document(s) within 90 days of being hired. (In addition, certain employers are now required by other state and/or federal laws to use the E-verify system to verify employment authorization of applicants.) e. Employment Applications Generally The questions asked on the employment application and in applicant interviews should be the product of careful consideration. Generally, they should include only questions which are job related and elicit the applicant's qualifications for the position involved. Some employers have different types of employment applications for different classes of jobs, because the job requirements vary for each class. Other employers use the same employment application for all applicants. Even if an employer has several classes of employees, it is possible to design an acceptable employment application for use with all classes of jobs by using a very limited number of questions on the application. Where there are different classes of employees with different job requirements and one application form is used, applicants should be instructed not to answer any questions which are unrelated to the job for which the applicant is applying. Employers should remember that the use of questions in an employment application or a job interview unrelated to the job for which a person is applying can form the basis of a discrimination claim. The EEOC has suggested that an employer consider the following three questions in deciding whether to include a particular question on an employment application or in a job interview: (1) Does this question tend to have a disproportionate effect in screening out minorities and females? (2) Is this information necessary to judge this individual's competence for performance of this particular job? (3) Are there alternative non-discriminatory ways to secure necessary information? In addition, to assist employers in complying with the NJLAD, the New Jersey Division on Civil Rights has issued a guide to pre-employment inquires. f. Employment Application Questions Questions in the following categories can pose problems when included in an employment application or interview. Age, date of birth -- The federal Age Discrimination in Employment Act (ADEA) protects applicants for employment who are 40 years of age or older. The NJLAD does not specify a protected age group and protects employees from age discrimination at any
age. Generally, age is considered to be irrelevant in most hiring decisions and, therefore, date of birth questions are improper. Also considered improper are questions that indirectly elicit age, e.g., the date of graduation from high school. If you need the date of birth for internal reasons, e.g., computations with respect to a pension or profit-sharing plan, this information should be obtained after the person is hired. Race, religion, national origin, ancestry -- Generally, questions should not be asked about these matters, either on employment applications or during job interviews. The requirement that an applicant furnish a picture has been used to support a claim for race discrimination when it was demonstrated that an employer had never hired a minority applicant, the inference being that the picture was required so that the that employer would remember which applicants were minorities. Ordinarily, Title VII requires employers to make reasonable accommodation for their employees' religious practices. This eliminates, in most situations, the need to ask whether an applicant's religious beliefs would prohibit working at certain times or on certain days. Such questions should be avoided in employment applications and interviews in order to avoid claims that an applicant's religious practices influenced hiring decisions. If an employer has a legitimate business reason for seeking applicants to work specific days or hours of work, it can simply identify these job requirements early in the application process. If applicants notify the employer that their religious beliefs may conflict with these job requirements, the employer may then determine whether a reasonable accommodation can be made that eliminates the conflict without causing undue hardship. Physical traits, disabilities -- Minimum height and weight requirements have been found to violate the law because they eliminate disproportionate numbers of women and Asian-Americans and Hispanics. Therefore, height or weight requirements should not be imposed unless the physical standards are directly related to the ability to perform the applied-for job. The Americans with Disabilities Act prohibits employers from asking whether an applicant or employee has a disability, or requesting information concerning the nature or severity of a known disability. In addition, employers are prohibited from making any medical inquiry (e.g., regarding medical history, workers' compensation claims, etc.) and from requiring medical examinations prior to extending an offer of employment. Employers are permitted to ask an applicant about his or her ability to perform job-related functions, and may request that an applicant describe or demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions. Employers are also permitted to provide information on attendance requirements and ask if an applicant can meet those requirements. Post-offer medical
inquiries and examinations are permitted if they are required of all new employees in the same job classification regardless of disability. Education -- If a job for which application is being made does not require a particular level of education, it is improper to ask questions about an applicant s educational background. Applicants can be asked about educational background, schools attended, degrees earned, and vocational training when the performance of a job requires a particular level of education. For example, inquiring into the English language proficiency and educational background of a secretarial candidate is proper, while the same inquiry would probably be improper for a janitorial applicant. The EEOC and some courts have looked closely at an employer's educational requirements to determine whether they are being used to exclude from employment minorities who, generally speaking, have obtained lesser levels of education. Sex, marital, family status -- Generally, questions relating to these matters should not be asked on an employment application or in a job interview. For example, questions about child-care arrangements and the likelihood of pregnancy are improper and should be avoided. If information concerning sex, marital and family status is needed for social security, income tax, and other purposes, it should be obtained after the applicant has been hired. Arrest, conviction records -- The New Jersey Division on Civil Rights takes the position that questions concerning arrests are impermissible and that questions about an applicant's conviction record are permitted only if they are in some way related to the job. These positions have been taken because of statistics which show that minorities are arrested and convicted at higher rates than non-minorities. Garnishment -- Questions concerning whether an applicant has been the subject of garnishment proceedings should be eliminated from employment applications and job interviews. The EEOC and many courts take the position that using the garnishment history of an applicant as a hiring criterion is discriminatory, because more minority members have their wages garnished than non-minorities. New Jersey employers must also remember that, under N.J.S.A. 2A:17-56.12, an employer may not discharge or discipline an employee or refrain from hiring an applicant because his or her wages have been subject to garnishment. Citizenship -- The New Jersey Division on Civil Rights prohibits any inquires into whether an applicant is now or intends to become a U.S. citizen or any other inquiries related to the aspect of citizenship. Qualification to work in the United States should be determined by Form I-9 following an offer of employment.
Drugs, smoking -- It is permissible to ask an applicant if he or she uses illegal drugs. The application also affords an employer the opportunity to obtain the applicant's agreement to be bound by the employer's drug policies and to obtain the applicant's agreement to submit to drug testing. New Jersey law prohibits discrimination in employment against a person because that person does or does not smoke tobacco, unless the employer has a rational reason for doing so that is reasonably job-related. The Smokers' Rights Law does not limit an employer from restricting or prohibiting smoking on company premises or from requiring employee compliance with its policy. Other problem areas -- Questions concerning whether an applicant has friends or relatives working for the employer may be improper, particularly if an employer which has a predominantly non-minority work force gives a preference to such applicants. Questions concerning credit rating or credit references may be problematic because employers are required to comply with specific notice and disclosure obligations if they seek this information. In addition, questions concerning credit rating or credit references have also been found to discriminate against minorities and women. Questions concerning whether an applicant owns a home have been determined to be improper since a greater number of minority members are not homeowners. While questions about military experience or training are permissible, questions concerning the type of discharge received by an applicant have been held to be improper, because minorities receive a high proportion of other than honorable discharges. Believe it or not, there are still questions which can be safely asked on an employment application. Proper questions can relate to the applicant's name, present address, telephone number, present employment, former employment, and job references. Certain of the "problem areas" identified above may still be proper if the job-relatedness requirement is met. It is important to remember that questions which cannot be asked on the application for employment are also unacceptable during the job interview. g. Employment Applications -- Conditions of Employment An employment application gives an employer the opportunity to state conditions of employment. The prospective employee who signs the application acknowledges his or her consent to these conditions. The following statements are conditions of employment that may be included in an employment application: I hereby declare the information provided by me in this application is true and complete, and I understand that falsification of this information is grounds for refusal to hire, or if hired, termination.
I authorize any of the persons or organizations referenced in this application to give you any and all information concerning my previous employment, education, or any other information they might have, personal or otherwise, with regard to any of the subjects covered by this application, and I release all such parties from all liability for any damage which may result from furnishing such information to you. I authorize you to request, receive and verify all information given in this application. In consideration for my employment by your company, I agree to conform to the rules and regulations of the company and acknowledge that these rules and regulations may be changed, interpreted, withdrawn, or added to by the employer at any time, at the employer's sole option and without any prior notice to me. I further acknowledge that if I am employed by the employer, my employment will be at will, and may be terminated with or without cause at any time by me or by the employer. I understand that no representative of the company has any authority to enter into any agreement for employment for any specified period of time or to assure any benefits or terms and conditions of employment other than those set forth in the employee handbook, either prior to commencement of employment or after I have become employed. I consent to a physical examination (after a job offer) and to a drug test (either prior to commencement of employment or after I have become employed) as deemed necessary by the employer. The above list is only a sample of possible conditions. There are obviously numerous other conditions which can be included in an employment application, depending on an employer's specific circumstances. h. Pre-employment Physical Pre-employment physicals are often required as the last step in the selection process. Under the ADA and the NJLAD, pre-offer medical examinations and medical history questionnaires are prohibited. Employers may ask questions regarding the ability of an applicant to perform job-related functions. The ADA and the NJLAD allow employers to require a medical examination or medical history after an offer of employment has been made to a job applicant and prior to the commencement of employment. Thus, the ADA permits an employer to condition an offer of employment on the results of a medical
examination or information revealed on a medical history questionnaire. The use of postoffer medical examinations must meet certain requirements, however, including: (1) requiring all new employees in the same job category to submit to medical examinations, regardless of disability; (2) maintaining medical information on separate forms and in files separate from the regular personnel file; and (3) maintaining the confidentiality of medical records. Currently, in order to use pre-employment physical examinations (at the post-offer stage) to the best possible advantage and avoid potential legal problems, employers should be able to demonstrate that: There is a relationship between the medical examination and the essential functions of the job in question. The company acted in good faith in seeking and using an informed medical opinion about an applicant's health status. The examination reveals a current physical impairment that would prevent the prospective employee from performing the job even with a reasonable accommodation. (Employers should exercise caution in using physicals to predict future risk of injury or inability to perform a job.) Refusal to employ a person who cannot pass a physical does not reflect bias against the applicant in particular or against "disabled" individuals in general. After employment begins, under the ADA, employers may not require a medical examination or make medical inquiries of employees unless such examinations or inquiries are job-related and consistent with business necessity. i. Drug Testing of Applicants In private, non-union represented employment, there are generally no legal restrictions on drug testing of applicants. In fact, employers may be subject to certain governmental regulations, based on being a government contractor, that mandate employee testing, or be required to test applicants and employees holding certain transportation positions. In a union represented work force, both federal labor law and the terms of the applicable collective bargaining agreement may affect the employer's ability to impose drug testing and utilize test results in making employment-related decisions. Public employers considering drug testing must be prepared to address challenges arising under the Fourth Amendment to the U.S. Constitution, the New Jersey Constitution, and various federal statutes and regulations that apply to drug testing.
Legal problems in drug testing can be reduced by establishing a written policy, using qualified labs with chain of custody for collected specimens, and confirmatory testing of results using gas chromatography/mass spectrometry. The ADA specifically provides that tests for the use of illegal drugs are not considered medical examinations. Thus, New Jersey employers may prohibit the use of illegal drugs and alcohol in the workplace, and may test applicants for illegal drugs to the extent that such a test is otherwise lawful. Testing of employees for illegal drug use is not prohibited by statute in New Jersey. However, the New Jersey Supreme Court has suggested that random employee drug tests may be limited by privacy rights where employees do not work in safety sensitive positions. Where employers are justified in randomly testing their employees, the least intrusive testing measures should be used. These measures include providing notice to employees about the implementation of drug testing, the selection process, the effects of certain drugs on the body, the analysis method used, and the consequences of failing or refusing to take the test. j. Credit and Background Checks Many employers have relied on credit and background checks as a hiring tool and a means of maintaining a responsible and efficient work force. However, recent changes in the law impose new obligations on employers, significantly affecting the way credit and background information is obtained. Amendments to the Fair Credit Reporting Act ( FCRA ) impose notice and disclosure obligations on employers who seek information about an applicant s or employee s credit history, criminal background, medical history, workers compensation history, or motor vehicle record. Employers are required to notify prospective and current employees at the outset if they intend to use a credit check. The notification must be in writing and must be contained in a document that consists only of the notification. Employers must also obtain the individual s written authorization to release credit information. If, however, applicants or employees fail or refuse to execute an authorization, the employer maintains the right to refuse to consider them for hire until they authorize access to credit information. Once written authorization is given, the employer must forward the authorization to the consumer reporting agency with its own certification about how the information will be used. The employer must also certify that it will not use the information in violation of any federal or state equal opportunity law or regulation and that it will not take any adverse action against the applicant before providing him or her with a copy of the report and a written summary of his or her rights under the FCRA. If an employer is inclined to make an adverse employment decision based in any part on credit information, the employer must provide the job applicant or employee with (1) notice of the adverse action; (2) the identity of the consumer reporting agency that
provided the credit information; (3) a statement that the consumer reporting agency did not make the decision to take adverse action; and (4) notice of the individual s right to obtain a free copy of his/her report from the consumer reporting agency within 60 days and to dispute the accuracy or completeness of the information with the consumer reporting agency. The result of this procedure is that if an applicant is turned down for a job, he or she conceivably could correct the credit information and reapply. An investigative consumer report which contains information about an applicant s or employee s character, general reputation, personal characteristics, and mode of living, is broader in scope than a consumer report, and additional protections are provided under the law. Within three days of the date an employer requests such a report, the employer must disclose in writing to the applicant or employee that an investigative consumer report has been requested. The disclosure must include a description of what an investigative consumer report contains and advise the applicant or employee that he or she may obtain information about the nature and scope of the investigation. If an applicant or employee requests information about the investigation, the employer must provide the information within five days of the request. Such disclosures and notices are in addition to those that are given for ordinary consumer reports. For reports containing medical information about the job applicant or employee, an employer must obtain explicit consent for the release of medical information. Such consent is in addition to the written authorization necessary to obtain a consumer report. k. Negligent Hiring The number of "negligent hiring" lawsuits being filed against employers is rapidly increasing. This type of lawsuit usually arises when a third party is injured by an unfit employee who was hired by an employer. Ordinarily, the third party claims that the employer failed to conduct a thorough background check on the employee before hiring him or her and that, if there had been such an investigation, the employee would have never been hired. To prevail in New Jersey, the third party must show that the employer knew or had reason to know of the particular unfitness, incompetence, or dangerous attributes of the employee, that the employer could reasonably have foreseen that those qualities created risk of harm to other persons, and that the employee's unfitness proximately caused injury. Examples of these lawsuits are: (1) negligence in hiring and retaining a ranger who was known by the employer to keep guns on the premises; (2) a company s failure to discover a security guard's prior record of sex crimes -- filed by a customer allegedly molested by the security guard; (3) an apartment owner's failure to discover prior burglary convictions of a maintenance employee who had a pass key to all apartments -- filed by a tenant allegedly burglarized by the employee; and (4) the hiring of an employee by a security firm which handled large sums of money without doing a
thorough investigation of the employee's job history -- filed by a client from whom the employee allegedly stole a substantial sum of money. Despite the increasing use of this theory, it is unlikely that an employer will be required to do a detailed background investigation on every employee. For example, employees who have little contact with the public, have nothing to do with the operation of vehicles or hazardous machinery, have no access to sensitive records, have no responsibility for the security or safety of third parties, or have no duties involving money or financial information pose very little risk for employers under the theory of negligent hiring. However, most employers have some employees who perform these job duties and are, therefore, subject to potential liability under this theory. Since a thorough background check is usually the best defense against a negligent hiring lawsuit, employers should consider the following guidelines: Carefully review all information provided by a job applicant. Pay special attention to gaps between jobs and the failure of an applicant to answer certain questions. Obtain a consent and release to gather information from former employers, and even if the former employers have a policy against releasing personnel information, it can be demonstrated that, at the very least, an effort was made to obtain it. Contact personal references provided by the applicant. Verify prior residences given by an applicant to make sure that one has not been omitted or changed for some reason. Document the information that was obtained and what efforts were made to obtain additional information. 5. Compensation and Benefits Several different federal and New Jersey laws regulate various forms of compensation and benefits. Each social sector organization should adopt a compensation scheme that is compatible with the organization s mission and furthers its human resources goals. a. Wages Most employers regardless of size are governed by both federal and state wage and hour laws. Federal and state wage and hour laws differ slightly, and employers must follow both. On July 24, 2009, the both the federal and the New Jersey minimum wage was increased to $ 7.25/hr.
The two major requirements in both federal and New Jersey wage and hour laws concern: (1) payment of the minimum wage and (2) payment for overtime hours. Under the minimum wage laws, employers must pay employees an amount that is at least the statutory minimum wage multiplied by the number of hours that the employee worked in any given work week. Under the laws governing overtime, employers must pay most employees additional compensation for overtime hours. Minimum wage and overtime laws are not limited to hourly employees. Employees who are paid in other ways, such as by salary or commission, may also be entitled to minimum wages and overtime pay. The minimum wage laws apply to all employees and the overtime laws apply to all employees except those who fall into one of the exempt classifications under federal law. New Jersey law requires employees be paid the full amount of their wages at least twice a month on regular paydays designated in advance.. 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. 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. 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. b. Bonuses Bonuses can improve employee retention and provide extra incentives for reaching certain targets. Employers who provide bonuses (other than gift bonuses like holiday bonuses) should have a written bonus plan to ensure clarity, and to avoid unintended implied bonuses in contracts. Furthermore, how bonuses are determined and whether they are guaranteed (for example, for hitting certain production goals) or discretionary will also have an effect on calculating an employee s overtime. c. Taxes Employers are required to withhold federal income tax and social security tax from taxable wages paid to employees. Under federal law, funds withheld must be deposited in
certain depositories accompanied by a Federal Tax Deposit Coupon (IRS Form 8109) or through the Electronics Federal Tax Payment System (EFTPS). An Employer s Quarterly Federal Tax Return (IRS Form 941) must then be filed before the end of the month following each calendar quarter. Willful failure on the part of the employer to collect, account for, and pay withholding taxes will subject the employer to a significant monetary penalty, and in some cases will impose personal liability on those responsible for remitting the withholding taxes. Most employers, including nonprofit organizations that are not 501(c)(3) organizations, must also file an Employer s Annual Federal Unemployment (FUTA) Tax Return (IRS Form 940) and pay any balance due on or before January 31 of each year. Details may be found in IRS Circular E, available at http://www.irs.gov/publications/p15/index.html. Employers who are 501(c)(3) organizations, however, are not required to file a FUTA Tax Return. If payment of tax is required, any balance is due on or before January 31 of each year. Details may be found in IRS Circular E, available at http://www.irs.gov/publications/p15/index.html and in Publication 15A, available at http://www.irs.gov/pub/irs-pdf/p15a.pdf. d. Mandatory Benefits i) Workers Compensation All employers with four or more employees (one or more employees for construction industry employers) must provide workers compensation insurance for their employees. There are some limited exemptions from this requirement, but the workers compensation benefits are the only benefits available for an employee injured in an on the job accident. What this means for employers is that an employee who is injured while performing work for the employer, with rare exception, cannot sue the employer for his/her injury, but is compensated through workers compensation. ii) iii) Unemployment Insurance Employers must contribute to an unemployment compensation fund. When an employee is granted unemployment compensation benefits, whether those payments are counted against the employer s account depends on several factors, one of which is how long the employee worked for the employer. Employees terminated within 90 days of hire may receive unemployment benefits, but those payments are not taxed to the employer. Other New Jersey Laws New Jersey law does not require any particular job benefits beyond wages. The law does not require that employees receive a certain amount of paid time off, whether for vacation, holidays, or sick leave. If benefits are provided, there is no requirement on how they are administered as long as they are not administered in a non-discriminatory fashion. New Jersey law also does not
require that employers provide medical insurance benefits. However, if such benefits are provided, the plans may be subject to ERISA, COBRA or HIPAA. See summaries of those laws in Federal Law section below. New Jersey mandates that all employers participate and give their employees through the State Temporary benefits Program, which permits a private plan option, coverage through the State Plan. The State plan is covered by special rules for non-profit and public employers. iv) Federally Mandated Benefits See summaries of ERISA, COBRA and HIPPA in the Federal Law discussion below. If applicable, these federal laws mandate certain specified benefits. e. Mandatory Leave of Absence Several federal and New Jersey laws either require or govern leaves of absence, depending upon the reason for the leave. Although these leave laws can be very complicated, application of the laws usually depends on the size of the employer, and some of the more complicated laws do not apply to small employers. Various special leave provisions are discussed in the Federal Law section and New Jersey Law sections below With certain exceptions, the federal Family and Medical Leave Act ( FMLA ) requires employers with 50 or more employees to provide unpaid family or medical leave of up to 12 weeks in a 12-month period for the birth or adoption of a child, for the serious health condition of the employee or spouse, parent or child of the employee, or for a qualifying exigency arising out of the fact that a spouse, child or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in the support of a contingency operation. A serious health condition includes inpatient hospitalization and subsequent treatment therefore and continuing treatment by a health care provider, including pregnancy. To be eligible for FMLA leave, the employee must have worked 12 months or longer, performed at least 1,250 hours of service for the employer in the 12 months prior to the date of leave, and must work at a site within 75 miles of which the employer has 50 or more employees. If the employee s need for leave is foreseeable, the employee must provide his or her employer with 30 days notice before taking leave. When the need for leave is unforeseeable, the employee is required to provide notice as soon as practicable. An individual who believes his or her FMLA rights have been violated is entitled to file a lawsuit. Remedies include lost compensation, liquidated damages, other out of pocket expenses, equitable relief, and attorneys fees.
f. Voluntary Benefits The benefits listed below are not required by law. However, many employers choose to provide employees with such benefits in order to attract and retain the most qualified workers. An employer is not required to provide employees with retirement benefits, welfare plans, severance pay, or other voluntary benefits. If an employer does establish such plans, however, they are governed by a federal law called the Employee Retirement Income Security Act ( ERISA ). See Federal Law section below. Under ERISA, employee benefit plans must comply with numerous and complex procedural requirements. An employer is not required to provide employees with vacation pay. If an employer elects to provide such benefits, however, they should be uniformly applied in conformity with a written policy. This will provide protection against claims of discrimination and may be necessary to ensure the employer complies with the pay provisions of the Fair Labor Standards Act ( FLSA ) as it relates to exempt employees. Although it is not uncommon to do so, employers are not required to give employees paid holidays. Indeed, except in cases where accommodation of religious holidays might be required, employers are not even required to give employees time off during holidays. Employers are not required to offer paid sick leave to employees. Traditional sick leave is often limited to time off for dealing with the employee s own illness or possibly to care for a sick child or spouse. Upon termination, the employer has no legal obligation to pay out unused sick leave, which means the employer s written policy will control. Many employers choose to combine vacation, sick leave, personal days, and floating holidays into a single paid time off or PTO policy. This makes it easier to administer employee time off and a single policy for accumulating and using PTO will often suffice. Paid leaves of absence, such as paid maternity or paternity leave, are not required by law. 6. Termination of Employment Absent an employment contract that provides otherwise, an employee of a social sector organization may ordinarily be terminated with or without cause provided there is no violation of applicable anti-discrimination laws. Prior to termination, social sector organizations should thoroughly review all records concerning the employee or employees in question and carefully assess the risks of litigation. Normally, advance notice of termination should be given. In most cases, employment counsel should be consulted before terminating one or more employees.
a. Pay All wages earned and unpaid at the time of discharge are due and payable upon the termination of employment and must be paid at the next regular pay date. b. Severance Agreements / Releases Generally, employers are not required to provide severance pay, unless they have agreed to do so. If the employer wants to offer severance to an employee, the employer may ask the employee to sign a release in exchange for the severance, in which the employee waives all legal claims the employee may have against the employer. If an employer seeks a release, the employee must be provided severance or other consideration in addition to any payments the employee was already entitled to receive. Federal law contains specific statutory requirements for waivers of age discrimination claims and prohibits the waiver of certain wage claims. c. Unemployment Insurance/Compensation Employees who are terminated involuntarily by their employers are eligible to receive unemployment compensation benefits. An employee is not eligible if he or she leaves employment voluntarily or is unemployed because of a work stoppage in a labor dispute in which the employee participated. An employee who is discharged for certain types of misconduct related to his or her employment is denied benefits for six weeks; if the employee engaged in gross misconduct, he or she is denied unemployment compensation altogether. The amount of the compensation, and the duration for which it will be paid, is determined by the earnings of the employee and the length of time the employee has worked. Employers contribute to the unemployment compensation fund based upon their total payroll and the number of employees claiming unemployment compensation benefits who have been terminated by that employer. d. Health Care Continuation (COBRA) Requirements The Consolidated Omnibus Budget Reconciliation Act of 1985 ( COBRA ) requires employers who provide employee health and medical benefits to provide notification to employees of their COBRA rights at the time of a qualifying event such as a resignation or an involuntary termination of employment. COBRA applies to employers with more than 20 employees. See Federal Law section below. In addition, New Jersey has a state version of COBRA that generally applies to employers with 20 or fewer employees.
7. Immigration With globalization and the increasing benefits of a diverse workforce, social sector employers located in the U.S. often seek to employ foreign personnel. This is particularly true with social sector organizations that are already working and addressing problems not just in the U.S. but around the world. A variety of permanent and temporary visas are available depending on various factors such as the job proposed for the alien, the alien s qualifications, and the relationship between the U.S. employer and the foreign employer. Permanent residents are authorized to work for any employer in the United States. Temporary visa holders have authorization to remain in the U.S. for a temporary time, and often their employment authorization is limited to specific employers, jobs, and even specific work sites. When planning to bring foreign personnel to the U.S., U.S. employers should allow several months for processing by United States Citizenship and Immigration Services ( USCIS ), as well as the Department of State and Department of Labor. (although in some cases premium processing is available). Furthermore, employers should be aware that certain corporate changes, including stock or asset sales, job position restructuring, change of job sites, and changes in job duties, may affect (if not invalidate) the employment authorization of foreign employees. a. Permanent Residency (the green card ) Permanent residency is commonly based on either family relationships, such as marriage to a U.S. citizen, or an offer of employment. Permanent residence gained through employment often involves a time-consuming process that can take several years. Therefore, employers considering the permanent residence avenue for an alien employee should consider the requirements for that immigration filing, and temporary status options to allow employment in the near-term, prior to bringing the employee to the U.S. b. Temporary Visas. The following are the most commonly used temporary visa categories: i) B-1 Business Visitors and B-2 Visitors for Pleasure These categories are commonly utilized for brief visits to the U.S. of six months or less. Neither status authorizes employment in the U.S. B-2 visitors are admitted for tourism/visiting. B-1 business visitors are often sent by their overseas employers to negotiate contracts, to attend business conferences or board meetings, or to fill contractual obligations such as repairing equipment for brief periods in the U.S. B-1 visitors generally cannot be on the U.S. payroll or receive U.S.-source remuneration.
ii) iii) iv) F-1 Academic Student Visas Including Practical Training Often foreign students come to the U.S. in F-1 status for academic training or M-1 status for vocational training. Students in F-1 status can often engage, within certain constraints, in on-campus employment and/or off-campus curricular or optional practical training for limited periods of time, though advance approval from USCIS is required for some of these pursuits. Students in M-1 status may be eligible for limited post-completion practical training with USCIS approval. J-1 Exchange Visitors This category is for academic students, scholars, researchers, and teachers and others traveling to the U.S. to participate in an approved exchange program. Training, not employment, is authorized. Potential employers should note that some J-1 exchange visitors and their dependents are subject to a two-year foreign residence requirement abroad before being allowed to change status and remain or return to the U.S. TN Professionals Under the North American Free Trade Agreement, certain Canadians and Mexicans who qualify and fill specific defined professional positions can qualify for TN status. Such professions include some medical/allied health professionals, engineers, computer systems analysts, and management consultants, among others. TN holders are granted stays in increments of up to three years at a time to work for specific employers and other employment is not allowed without prior USCIS approval. Canadians have the option to apply for TN status in person at the Canadian border or airport, with minimal paperwork required. v) E-1 Treaty Traders and E-2 Treaty Investors These are temporary categories for persons in managerial, executive or essential skills capacities who individually conduct, or are employed by companies that engage in, substantial trade with or investment in the U.S. E status is commonly used to transfer managers, executives or employees with specialized knowledge about the proprietary processes or practices of a foreign company to assist the company at its U.S. operations. Generally, E visa holders are admitted for a period of two years, and extensions of stay can be granted in two-year increments. vi) E-3 Treaty Alien in a Specialty Occupation Visas for Australian Citizens E-3 status is available to Australian citizens who will be employed in the U.S. in specialty occupations that require at least a bachelor s degree. Like H-1B visas, the U.S. employer must pay the E-3 worker the higher of the actual wage paid by such employer to U.S. workers or the prevailing wage paid to U.S. workers
in the same geographic area as determined by Department of Labor online wage library or other valid salary survey. This temporary status is generally granted for a period of 2 years, and is renewable indefinitely. vii) H-1B Specialty Occupations H-1B status is available to persons in specialty occupations that require at least a bachelor s degree. Examples of such professionals are computer programmers, engineers, architects, accountants, and, on occasion, business persons, among many others. Initially, H-1B temporary workers are given threeyear temporary stays with possible extensions up to an aggregate of six years. H-1B status is employer-and job-specific. A U.S. employer must pay H-1B workers the higher of the actual wage paid by such employer to U.S. workers or the prevailing wage paid to U.S. workers in the same geographic area as determined by Department of Labor online wage library or other valid salary survey. viii) L-1 Intra-company Transferees Most often utilized in the transfer of executives, managers or persons with specialized knowledge from international companies to U.S.-related companies, L-1 status provides employer-specific work authorization for an initial threeyear period with possible extensions of up to five or seven years, depending upon the category. L-1A status is designed for the transfer of executives and managers, while L-1B status is for specialized knowledge persons. As in the case of certain E visa capacities, L managers or executives may have an advantageous route to permanent residence. ix) O-1 and O-2 Visas for Extraordinary Ability Persons O-1 and O-2 visas are for persons who have extraordinary abilities in the sciences, arts, education, business or athletics and sustained national or international acclaim. Also included in this category are those persons who assist in such O-1 artistic or athletic performances. Persons who meet the extraordinary ability standard also may qualify for an advantageous route to permanent residence. x) P-1 Athletes/Group Entertainers and P-2 Reciprocal Exchange Visitor Visas These temporary visas allow certain athletes who compete at internationally recognized levels or entertainment groups who have been internationally recognized as outstanding for a substantial period of time, to come to the U.S. and work. Essential support personnel can also be included in this category. xi) Others There are a number of other non-immigrant visa categories that may apply to specific desired entries.
c. Immigration and Nationality Act ( INA ) The Immigration and Nationality Act ( INA ) includes provisions addressing employment eligibility, employment verification and nondiscrimination. Employers may hire only persons who may legally work in the U.S. (i.e., citizens and nationals of the U.S.) and aliens authorized to work in the U.S. The employer must verify the identity and employment eligibility of anyone to be hired, which includes completing Employment Eligibility Verification Form (I-9). Employers must keep each I-9 on file for at least three years, or one year after employment ends, whichever is longer. d. Immigration Reform and Control Act ( IRCA ) The Immigration Reform and Control Act ( IRCA ) requires that employers, regardless of size, inspect and verify documentation establishing the identity and eligibility to work in the U.S. of every newly hired employee, and makes it unlawful to hire an alien who is ineligible for work in the U.S. Employers are subject to significant fines and penalties for failure to comply with documentation requirements under IRCA, as well as for hiring unauthorized workers. IRCA also prohibits employers of four or more workers from discriminating against lawfully admitted aliens. 8. Federal Law Described below are some of the more significant federal laws and regulations, not including immigration, affecting the employment relationship. a. Title VII of the Civil Rights Act of 1964 ( Title VII ) Title VII of the Civil Rights Act of 1964 ( Title VII ) prohibits employment discrimination based on race, sex, color, national origin, or religion. Title VII applies to all employers with 15 or more employees and prohibits discrimination in areas of advertising, recruiting, hiring, promotion, compensation, benefits administration, and termination. Title VII also prohibits harassment based on an individual s protected characteristics, as well as retaliation for engaging in conduct protected by Title VII. To recover damages, any individual who has suffered such discrimination must file a complaint with the Equal Employment Opportunity Commission ( EEOC ) within 180 days of the alleged discrimination. In New Jersey, however, this time period is extended to 300 days from the alleged discrimination. Once the EEOC investigates the allegations and makes a determination regarding the sufficiency of the evidence to prove the alleged discrimination, the EEOC will notify the employee in writing of his or her right to bring a civil action. Regardless of the EEOC s determination, the employee may, within 90 days of receipt of the notice, bring a legal action based on his or her allegations. An individual s possible remedies under Title VII include compensatory and punitive damages, back pay and front pay, reinstatement, and attorneys fees.
b. Age Discrimination in Employment Act ("ADEA") The Age Discrimination in Employment Act ("ADEA") makes it unlawful for employers to fail or refuse to hire, to discharge, limit, segregate or classify protected employees, or otherwise discriminate against them with respect to their compensation, terms, conditions or privileges of employment because of their age. The ADEA protects employees who are at least 40 years old and applies to all employers with 20 or more employees employed in an industry affecting commerce. There are limited exceptions to the ADEA where age is a "bona fide occupational qualification" necessary to the particular business, or where the differentiation is based on reasonable factors other than age. Employees must first file charges of discrimination with the EEOC, which enforces the ADEA. The employee or the EEOC may then sue in federal court for damages and other relief. Remedies under the ADEA include reinstatement or front pay, back pay, liquidated damages, and attorneys fees. c. Americans with Disabilities Act ( ADA ) The Americans with Disabilities Act ( ADA ) makes it unlawful for employers to discriminate against a qualified individual with a disability based on the existence of a disability, a record of a disability, or on the employer s perception that an employee is disabled. The ADA requires that employers take reasonable steps to accommodate disabled individuals in the workplace unless such measures would constitute an undue hardship on the employer. The ADA applies to employers engaged in interstate commerce that have 15 or more employees. The procedures for pursuing a claim under the ADA, as well as the available remedies, are similar to those provided by Title VII. d. The Pregnancy Discrimination Act of 1978 ( PDA ) The Pregnancy Discrimination Act of 1978 ( PDA ) explicitly prohibits discrimination based on pregnancy and its related conditions. e. Employee Polygraph Protection Act ( EPPA ) Employee Polygraph Protection Act ( EPPA ) generally prohibits the use of polygraph machines by an employer in determining whether to hire, promote or terminate an individual. Some private employers, including those within the security field, those involved in the protection of the public, those involved in operations impacting national security, and those authorized to manufacture, distribute, or dispense any controlled substance, are exempt from the EPPA. The EPPA also permits the use of a lie detector by any employer when the employer sustains an economic loss, the employee to be tested had access to the property that is the subject of the investigation, the employer has a reasonable suspicion that the employee was involved in the incident being investigated, and the employer obtains a statement from the employee authorizing the test. Even in
these limited situations where use of a lie detector is permissible, an employee being tested can terminate the examination at any time. Either the Secretary of Labor or an aggrieved employee can bring an action against an employer for violating the EPPA. Remedies include reinstatement, promotion, back pay, and attorneys fees. The Department of Labor may also impose a fine up to $10,000. f. The Equal Pay Act of 1963 ( EPA ) The Equal Pay Act of 1963 requires employers to pay men and women equal wages for equal work. Equal pay is required for any jobs "the performance of which require equal skill, effort and responsibility and which are performed under similar working conditions." There are exceptions for seniority systems, merit systems, pay systems based on quantity or quality of production, or other pay differentials based on factors other than sex. The Equal Pay Act applies to employers who have two or more employees engaged in interstate commerce, in the production of goods for interstate commerce, or in handling or working with goods and materials in interstate commerce. An employee who believes his or her employer has violated the EPA may bring an action in federal court or file a charge with the EEOC. The employee need not first bring the claim before the EEOC in order to sue. Remedies include back pay, attorneys fees, and court costs. g. The Federal Fair Labor Standards Act ("FLSA") The Federal Fair Labor Standards Act ("FLSA") regulates wages and hours of certain covered employees. Employers must keep accurate records of hours worked by covered employees and those employees must receive a regular rate of pay for each hour they work up to 40 hours in a week. The regular rate must be at least equal to the required "minimum wage," which was increased to $7.25 on July 24, 2009. All hours over 40 in a week are considered "overtime." Generally, an employer must provide compensation to any covered (i.e., non-exempt) employee who works in excess of 40 hours in a week at an amount not less than one and a half times the worker s regular rate of pay for each hour of overtime. These protections may not be eliminated by individual agreement or by union contract. While appearing simple, the FLSA is subject to many regulations, exceptions, interpretations and exemptions and is not capable of short summary. For example, professional, executive and administrative employees, as defined by regulations, are exempt from both the minimum wage and overtime pay requirements and some occupations and industries have special minimum wage provisions. Employers who violate the FLSA are subject to civil penalties, including fines, and prevailing employees may recover unpaid wages, unpaid overtime compensation, liquidated damages, and attorneys fees.
h. The Family and Medical Leave Act ( FMLA ) The Family and Medical Leave Act ( FMLA ) requires that eligible employees working for organizations with 50 or more employees be allowed to take up to 12 weeks of unpaid leave per year for the birth or adoption of a child, for the serious health condition of the employee or spouse, parent or child of the employee, or for a qualifying exigency arising out of the fact that a spouse, child or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in the support of a contingency operation. A serious health condition includes inpatient hospitalization and subsequent treatment therefore and continuing treatment by a health care provider, including pregnancy. To be eligible for FMLA leave, the employee must have worked 12 months or longer, performed at least 1,250 hours of service for the employer in the 12 months prior to the date of leave, and must work at a site within 75 miles of which the employer has 50 or more employees. If the employee s need for leave is foreseeable, the employee must provide his or her employer with 30 days notice before taking leave. When the need for leave is unforeseeable, the employee is required to provide notice as soon as practicable. An individual who believes his or her FMLA rights have been violated is entitled to file a lawsuit. Remedies include lost compensation, liquidated damages, other out of pocket expenses, equitable relief, and attorneys fees. i. The Federal Employee Retirement Income Security Act of 1974 ("ERISA") The Federal Employee Retirement Income Security Act of 1974 ("ERISA") regulates employee benefit plans maintained by employers engaged in commerce or in an industry or activity affecting commerce. ERISA contains specific requirements governing the creation, modification, maintenance and reporting of employer pension and retirement plans as well as other plans relating to employee health and welfare benefits. Welfare plans include, for example, plans providing medical, hospital, death or other insurance benefits, vacation and severance benefits. ERISA sets out a detailed regulatory scheme mandating certain reporting and disclosure requirements, providing exemptions for religious institutions, setting forth fiduciary obligations and, in most types of retirement plans, coverage, vesting and funding requirements. ERISA does not prescribe any particular level of severance, insurance, pension or welfare benefits, nor does it require that they be provided at all. This is a matter to be decided by the employer and, if the employer is unionized, to be bargained between the employer and the union. However, if benefits are offered, they must comply with regulations prohibiting discrimination and must be administered strictly in conformance with the terms of the benefit plan. ERISA generally preempts state laws (other than state insurance laws) governing employee plans and arrangements.
j. The Consolidated Omnibus Budget Reform Act ("COBRA") The Consolidated Omnibus Budget Reform Act ("COBRA") requires employers with more than 20 employees who provide health and medical benefits to offer continuation of those benefits to former employees and their covered dependents ( qualified beneficiaries ) upon the occurrence of certain qualifying events. COBRA generally provides a maximum continuation period of 18 months. In certain circumstances where a qualified beneficiary is disabled at any time during the first 60 days of COBRA coverage, the period can be extended to 29 months. Also, if certain qualifying events occur during the original 18 months of COBRA coverage, qualified beneficiaries become entitled to receive 36 months of continuation coverage. Employers may require electing qualified beneficiaries to pay the entire premium for COBRA coverage plus a 2% administrative charge (in certain instances, the premium may be increased to 150% of the normal premium). COBRA contains very specific procedures for notifying qualified beneficiaries of their COBRA rights. COBRA applies whether employees leave voluntarily or involuntarily (and may apply in the absence of a termination of employment (such as when a beneficiary would otherwise lose coverage as a result of no longer satisfying the definition of beneficiary under the plan, and when a spouse would otherwise lose coverage as a result of divorce)). k. Health Insurance Portability and Accountability Act ( HIPAA ) The Health Insurance Portability and Accountability Act ( HIPAA ) establishes limitations on the use of preexisting condition exclusions (so-called portability rules). HIPAA prevents group health plans or health insurance issuers from imposing a preexisting condition exclusion of more than 12 months (18 months for late enrollees) for coverage of any condition that was present during the six-month period ending on the individual's enrollment date. In addition to various other provisions, HIPAA mandates that preexisting condition limitations generally may not be imposed upon newborns or adopted children under age 18, and may not apply to pregnancy. The preexisting condition exclusion period must be reduced by periods of creditable coverage, generally defined as periods of continuous coverage the individual has under other health plans. HIPAA also imposes various other requirements on employers and group health plan providers and insurers, such as nondiscrimination and disclosure requirements, special enrollment rights, and special notice obligations. The HIPAA privacy rules extend privacy protection to all types of protected health information held by covered entities. Covered entities include health plans, health care clearinghouses, and health care providers. The HIPAA security rules impose requirements with respect to safeguarding and protecting the confidentiality, integrity and availability of electronic protected health information.
l. The Occupational Safety and Health Act ("OSHA") The Occupational Safety and Health Act ("OSHA") regulates work place safety for employers in businesses which affect commerce. New Jersey has no counterpart regulating scheme to OSHA for private sector employees. New Jersey does have such a scheme for public sector employees. Under OSHA, employers are required to furnish their employees with a place of employment free from recognized hazards that are causing, or are likely to cause, them death or serious physical harm. Employers must also comply with occupational safety and health standards which are issued under the Act. "Right to know" regulations issued under OSHA require that employees in certain industries be warned about hazardous materials and chemicals to which they may be exposed. OSHA sets forth a detailed procedure for adopting safety and health standards and provides for inspection, investigation and enforcement. Citations issued for noncompliance can result in civil and criminal penalties, including fines and, for violations causing the death of an employee, imprisonment. States are allowed to develop and enforce their own plans setting and enforcing occupational safety and health standards. Some industries and occupants have specific regulations both at the federal and state level (e.g. Department of Transportation), which govern regulate employee safety and health. m. The Fair Credit Reporting Act ( FCRA ) The Fair Credit Reporting Act ( FCRA ) prescribes the extent to, and manner in which, employers may use credit information in making employment decisions, including hiring and termination. The FRCA imposes strict guidelines requiring employers to use such credit reports only for a permissible purpose, after disclosure to employment applicants or employees of the intent to seek and use credit information, and after obtaining the written consent of the employee/applicant. The disclosure/consent may not be made a part of the employer s application form. Additionally, employees/applicants must be notified of any adverse decision based in whole or in part upon credit information. Additional requirements apply to investigative consumer reports. n. The Uniformed Services Employment and Reemployment Rights Act ( USERRA ) The Uniformed Services Employment and Reemployment Rights Act ( USERRA ) prohibits discrimination against persons because of their service in the Armed Forces Reserve, the National Guard, or other uniformed services. USERRA prohibits an employer from denying any benefit of employment on the basis of an individual s membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services. USERRA also protects the right of veterans, reservists, National Guard members, and certain other members of the
uniformed services to reclaim their civilian employment after being absent due to military service or training. o. Genetic Information Nondiscrimination Act ( GINA ) The Genetic Information Nondiscrimination Act ( GINA ) prohibits an employer from discriminating against an individual in hiring, firing, compensation, terms, or privileges of employment on the basis of genetic information of the individual or family member of the individual. The law defines genetic information as (1) an individual s genetic tests; (2) an individual s family member s genetic tests; or (3) the manifestation of a disease or disorder in the individual s family member. Subject to a number of narrowly -defined exceptions, GINA prohibits an employer from requesting, requiring, or purchasing genetic information of the individual or family member. The EEOC has specifically interpreted this to mean that managers cannot make inquiries to employees regarding their family members conditions (other than, for instance, is your daughter okay? ), listen in on others conversations regarding the conditions of employees family members, or access social media posts to discovery more information regarding employees genetic information. An employer may engage in genetic monitoring of biological effects of toxic substances in the workplace but only in certain narrowly defined situations. Employees may sue in a court of competent jurisdiction for relief from violations of GINA and obtain back pay, front pay, compensatory and punitive damages and attorney s fees. p. Requirements Imposed Upon Government Contractors Executive Order 11246 requires employers doing business with the federal government to comply with certain equal opportunity and affirmative action regulations. These regulations are administered by the Office of Federal Contract Compliance Programs (OFCCP). There are two basic requirements imposed upon government contractors and subcontractors. First, each government contract must contain an equal opportunity clause which prohibits the contractor from discriminating against employees or applicants on the basis of race, color, religion, sex, or national origin. Government contracts under $10,000 are exempted from this requirement. In addition to the equal opportunity clause requirement, employers with 50 or more employees and government contracts or subcontracts worth $50,000 or more must develop and maintain an affirmative action plan. The employer is required to analyze its employment practices and to affirmatively hire, retain and promote women and members of minority groups. Noncompliance may result in debarment from government contracts.
q. Worker Adjustment and Retraining Notification Act ("WARN") The Act affects any business enterprise that employs 100 or more employees, excluding part-time employees. It requires written notice to employees 60 days before a plant closing or mass layoff. A mass layoff is defined in the Act as a reduction in force which is not the result of a plant closing and which results in employment loss at a single site of employment during any 30-day period for at least 33% of the employees (excluding any part-time employees) and at least 50 employees (excluding any part-time employees); or at least 500 employees (excluding part-time employees). Plant closing is defined as the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any 30-day period for 50 or more employees (excluding any part-time employees). The Act specifically exempts closings or layoffs as a result of a strike or lockout or closings of a temporary facility where the employees were hired with the understanding that their employment would be limited to the duration of the facility or project. 9. Other State Specific Considerations a. New Jersey Law Against Discrimination ( NJLAD ) The NJLAD prohibits employment discrimination based on race, creed, color, national origin, ancestry, age, marital status, familial status, civil union status, sex, affectational or sexual orientation, atypical cellular or blood trait, gender identity or expression, genetic information, or service in the armed forces. Employers are also prohibited from discriminating on the basis of disability unless the employee is not able to perform the essential functions of their job. The definition of a disability under the NJLAD is very broad and includes both physical and mental disabilities. All employers, employment agencies, and labor unions in New Jersey are required to comply with this statute. The NJLAD is similar in many respects to federal discrimination statutes such as Title VII and the ADA, although the protected categories are in some instances more extensive under New Jersey law. The New Jersey statute, unlike federal and most state statutes, also protects individuals from discrimination because of heterosexuality, homosexuality, or bisexuality. Also, unlike the ADEA, which only protects individuals over the age of 40, the New Jersey law does not specify a protected age group. Employees are protected from age discrimination at any age, and an employee discriminated against because of youth may seek relief under the statute.
Like Title VII, the NJLAD protects employees from harassment based upon a protected characteristic and the creation or tolerance of a hostile work environment is prohibited. Moreover, an employer may be liable for harassing conduct that takes places outside the workplace if the employer had notice of that conduct and the conduct occurs in a forum related to the workplace. The NJLAD is enforced by the New Jersey Division on Civil Rights pursuant to regulations adopted in accordance with the statute. New Jersey is recognized as a deferral state. Therefore, the federal EEOC may defer to the Division on Civil Rights in discrimination actions. If the employee wishes to proceed under the New Jersey Law Against Discrimination, the employee can either file a complaint with the Division or file a direct court action. b. Whistleblower Protection New Jersey has several statutes which protect whistleblowers from retaliation by their employers. The Conscientious Employee Protection Act (CEPA) protects employees who report, or refuse to participate in, conduct which they reasonably believe to be illegal, fraudulent or criminal. Employers are required to post notice of the CEPA statute at the workplace. The New Jersey Law Against Discrimination protects employees who file discrimination charges from retaliation. The Workers Compensation Act also protects employees who file for workers' compensation benefits from retaliation by the employer. Under certain circumstances, CEPA also protects employees who are retaliated against for reporting the alleged illegal, fraudulent or criminal activity of co-employees. c. The New Jersey Family Leave Act The New Jersey Family Leave Act provides employees with up to 12 weeks of unpaid leave in any 24-month period in connection with the birth or adoption of a child, or the serious health condition of an employee's child, parent or spouse. An employee must be restored to the same or an equivalent position when returning from leave. Employers can only deny family leave to certain highly paid employees when the requested leave would cause substantial injury to the employer's operations. Employers are required to post a notice of employees' rights under the Family Leave Act. The Act applies to employers with 50 or more employees. d. New Jersey Family Leave Insurance Program The New Jersey Family Leave Insurance Program ( FLI ) pays employees for up to six workweeks of leave to care for a new child or sick family member. The FLI is
administered by the New Jersey Division of Temporary Disability Insurance and funded by State-mandated withholdings from employee paychecks. The FLI begins providing payments to eligible employees on July 1, 2009. As of that date, eligible employees will be entitled to benefits equaling two-thirds of their average weekly wage, up to $524 per week, for up to six weeks of leave per year to care for a newborn child, newly adopted child, or family member with a serious medical condition. In the case of a new child, the six weeks of benefits are provided only if taken within twelve months of the birth or adoption. In the case of care for a family member with a serious medical condition, claims may be filed for six weeks of leave during a 12 month period beginning with the first date of the claim. A family member includes an employee s child, parent, spouse, domestic partner, or civil union partner. Any employee of the Company who has either (1) worked in New Jersey for 20 calendar weeks in the past year in which he or she earned $143 per week or more; or (2) earned $7,200 in New Jersey employment in the past year, is eligible to receive FLI benefits. An eligible employee is subject to a seven-day waiting period before qualifying for benefits; if the qualifying leave continues beyond that date, the first week will be covered retroactively. Employees intending to take leave to bond with a newborn or newly adopted child must provide the Company with a minimum of thirty (30) days notice prior to commencement of the family leave. Failure by the employee to provide this notice will result in a 2 week (14 day) reduction in the claimant's maximum FLI benefits entitlement for the applicable 12-month period, unless the time of the leave is unforeseeable or the time of the leave changes for unforeseeable reasons. Employees intending to take leave to care for a seriously ill family member on a continuous, non-intermittent basis must provide the Company with prior notice of the family leave in a reasonable and practicable manner, unless an emergency or other unforeseen circumstance precludes prior notice. Employees intending to take leave to care for a seriously ill family member on an intermittent basis must provide the Company with a minimum of fifteen (15) days notice prior to the commencement of the intermittent family leave unless an emergency or other unforeseen circumstance precludes prior notice. Any claim for FLI benefits for the serious medical condition of a family member must be supported by a medical certification provided by a health care provider. The Division of Temporary Disability Insurance may require the family member to undergo an examination by a health care provider designated by the Division.
Employees are required to use accrued but unused paid time off (i.e., vacation days, personal days, and sick days) up to a maximum of two weeks simultaneously with and at the outset of any FLI-qualifying leave of absence. Paid time off will count toward the six weeks of paid FLI eligibility, and employees will not receive any additional FLI benefits for those days. Employees may, but are not required to, use additional accrued paid time off beyond the two weeks, but that additional paid time off does not count towards FLI eligibility. FLI will run concurrently with leave taken under the Family and Medical Leave Act ( FMLA ) and the New Jersey Family Leave Act ( NJFLA ) where either or both of them apply. However, it is important to note that an employee may be eligible for leave and/or pay under one or more of these laws, but not qualify for the others. The eligibility criteria, employee notice and certification requirements, and other terms differ under the three laws. Also, unlike the FMLA and the NJFLA, FLI is not job-protected leave. Accordingly, where an employee is eligible for FLI but not FMLA or NJFLA, the decision as to whether to hold the position open during the leave will be based upon the needs of the business. e. New Jersey State Job Loss Notification Law (Federal WARN Counterpart) New Jersey adopted a state counterpart to the federal WARN statute effective December 20, 2007. In many respects, it parallels the federal WARN statute, but there are some significant differences, perhaps most significantly in the remedies provided for violation of the statute where New Jersey requires the employer to pay each full-time employee whose employment was terminated without the full 60 day statutory notice the greater of the penalty assessed under federal WARN in New Jersey that is 60 individual days of pay, or severance equal to one week of pay for each full year of employment. Also, New Jersey does not have and does not recognize WARN s exceptions to the notice requirement or have exceptions for asset purchase or transfer to job out of state. See the New Jersey Department of Labor website at http://lwd.state.nj.us.laborand click on mass layoff notification to view a chart which compares the federal and New Jersey WARN statutes and highlights the differences. f. Employment Protection for Jury Service New Jersey law prohibits employers from penalizing employees due to their attendance at court for jury service. Employers must provide re-employment to employees serving on juries regardless of the length of time of jury service. An employer who violates this law is guilty of a disorderly persons offense.
g. Prohibition Against Lie Detector Tests In New Jersey it is a criminal violation (a disorderly persons offense) to require an employee or job applicant to submit to a lie detector test as a condition of employment or continued employment. A limited exception exists for employers whose business involves legally distributed controlled dangerous substances. New Jersey's criminal statute is not preempted by the federal Employee Polygraph Protection Act. h. Access to Personnel Files New Jersey does not provide employees with a statutory right of access to their personnel files. However, an employee may have a cause of action under state law if the employee requests access to his or her personnel file to investigate possible discrimination and is discharged by an employer in retaliation. Employees and former employees are entitled to access to records of their exposure to toxic materials. i. New Jersey s Domestic Partnership and Civil Union Laws In 2003, the New Jersey Legislature passed the New Jersey Domestic Partnership Act. At the time it was enacted, the Domestic Partnership Act allowed same-sex couples and unmarried opposite-sex couples age 62 and over to form domestic partnerships with some of the rights and responsibilities of marriage. As of February 19, 2007, same sex couples can no longer form a domestic partnership in New Jersey; however, same-sex couples can now enter into a civil union (see below). Unmarried opposite-sex couples (where each partner is over 62 years old) can still form a domestic partnership. To qualify for benefits under the Domestic Partnership Act, the domestic partners must share a residence, agree to share living expenses, share a bank account, mortgage, deed, or other joint responsibility for each other s common welfare, and be involved in a committed relationship of mutual caring. The domestic partners cannot be married or related, nor can a prior partnership have terminated less than 180 days before an affidavit seeking domestic partnership is filed. To register for the partnership, an affidavit seeking domestic partnership must be filed with a local registrar with proof of joint financial arrangements. The Domestic Partnership Act allows private employers who sponsor health care plans to offer health care coverage to domestic partners of their employees. The Domestic Partnership Act also amends the New Jersey Law Against Discrimination to prohibit
employment and other discrimination against any person because of domestic partner status. The New Jersey Civil Union Law extends all of the civil rights, benefits, protections and responsibilities accorded to married couples to same-sex couples who enter into a civil union. To form a civil union the two individuals must be the same sex and at least 18 years of age. In addition, the individuals may not be a party to another civil union, domestic partnership or marriage. A civil union is formed in the same way that a marriage is formed in New Jersey. The New Jersey Civil Union Law also amends the New Jersey Law Against Discrimination to prohibit employment and other discrimination against any person because of civil union status. j. The New Jersey Identify Theft Prevention Act 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. 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. 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.
k. Smokers' Rights Law/Smoke Free Air Act New Jersey law prohibits employment discrimination against a person because that person does or does not smoke tobacco, unless the employer has a rational basis for doing so that is reasonably related to the job. The Smokers' Rights Law does not prevent employers from restricting or prohibiting smoking on company premises. In fact, 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. l. New Jersey Common Law i) General Principles Generally, if a person is employed without an employment contract for an indefinite period of time, the employment is at will and can be terminated by the employer or the employee at any time, without prior notice, and for any reason. There are, however, restrictions on the at will rule. An employer who terminates an employee in violation of public policy or in violation of an express or implied contract may be liable to the employee for wrongful discharge. ii) Violation of Public Policy The public policy exception to at will employment prohibits employers from terminating employees for reasons which violate public policy. Thus, a tort action may be based upon the alleged duty of an employer not to discharge or otherwise retaliate against an employee who refuses to perform an act that violates public policy. Sources of fundamental public policy upon which claims might be based include statutes, administrative regulations, judicial decisions, and codes of professional conduct. Circumstances where wrongful discharge claims based upon a violation of public policy have been successfully asserted include: alleged termination due to employee s voting as an elected member of a town council in favor of an ordinance that would ban public parking in front of his employer s client s building; alleged termination for filing a worker s compensation claim; retaliation against an employee pursuing information relevant to a charge of employment discrimination; and termination of a pharmacist who refused to
obey an order by his employer that would have resulted in the employee's violation of the State Code of Ethics for pharmacists. iii) Breach of Contract Even though employment is for an indefinite period and is otherwise terminable at will, an implied promise in an employee manual that employees will be fired only for cause may be enforceable. The employee manual may be viewed as an offer to form a unilateral contract; the employee's continued work is consideration for the contract. The manual should be read in accordance with the reasonable expectations of employees. Employees have stated a claim for breach of implied contract based on a manual distributed to all employees that specified job security provisions, including a probationary period and a progressive discipline policy, where the termination policy was definite and comprehensive; and a manual distributed to a substantial number of the employer s workforce which included an 11-page section on disciplinary procedures and a definite, comprehensive termination policy. An employer may avoid having policy manuals become contractually enforceable by including a clear, prominent disclaimer to negate any statement which could be construed as an implied promise. In order to be effective, disclaimers must be clear without confusing legalese so that employees could not reasonably believe that the manual was intended to create legally binding obligations. In addition, the disclaimer must be prominently placed in the manual. Some New Jersey courts have disregarded disclaimers that were buried or otherwise not prominently displayed in employee manuals. In addition, oral statements to individual employees can create binding employment contracts. To succeed, the elements of a contract must be present: a representation of no dismissal except for just cause, reasonable reliance, valuable consideration, and terms that are sufficiently clear and capable of judicial determination. Likewise, oral statements may create policies or procedures governing termination which will be binding upon the employer.
**************************************************************************** IRS Circular 230 Notice: Any tax advice provided herein (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of avoiding penalties that may be imposed on any taxpayer. ****************************************************************************
10. Employment Law Resources a. Federal i) Agencies US Dept. of Labor http://www.dol.gov National Labor Relations Board (NLRB), http://www.nlrb.gov U.S. Equal Employment Opportunity Commission (EEOC), http://www.eeoc.gov Dept. of Justice Civil Rights Division http://www.usdoj.gov/crt U.S. Citizenship and Immigration Services (USCIS) http://www.uscis.gov/portal/site/uscis ii) iii) Websites Code of Federal Regulations, http://www.access.gpo.gov/nara/cfr/cfr-tablesearch.html United States Code, http://www4.law.cornell.edu/uscode/ Department of Labor Employment Law Guide, http://www.dol.gov/compliance/guide/ Family and Medical Leave Act(FMLA) Compliance Guide, http://www.dol.gov/whd/regs/compliance/1421.htm Additional Materials Employment Law tips, http://employmentlawpost.com/ Society of Human Resources Management, http://www.shrm.org/pages/default.aspx Bureau of National Affairs (BNA) publications on employment Publications by the American Bar Association Section on Labor and Employment b. State i) Agencies New Jersey Division on Civil Rights, http://www.njcivilrights.org New Jersey Department of Labor and Workforce Development, lwd.state.nj.us/labor/index.shmtl ii) Websites New Jersey Statutes, http://www.njleg.state.nj.us/legislativepub/help.asp New Jersey Administrative Code, http://www.state.nj.us/oal/rules.html