As we begin the last quarter of 2019, it is worthwhile to look back and review the significant changes that have affected New Jersey’s employment law landscape in the last several months. Some changes were made by the courts and some by the legislature: All will make a difference in the way that New Jersey employees are treated.
Court Decisions About the New Jersey Law Against Discrimination
New Jersey has one of the nation’s most progressive laws prohibiting discrimination against those in protected classes, and two decisions made by the Appellate Division have given further strength to the law’s stated intentions.
In March the Appellate Division favored the employee in a case involving the legal and prescribed used of medical marijuana, writing that the Law Against Discrimination is an appropriate basis for a claim against employers that fail to accommodate their off duty use of medical marijuana.
In June the Appellate Division favored the employee in a case involving an employer’s refusal to provide reasonable accommodation of her medical condition. Though a trial court had ruled against the employee because she had not established that she’d suffered an “adverse employment action” as a result of her employer’s failure to accommodate, the appellate court decided that proof of adverse employment action was not needed where circumstances “cry out for a remedy.”
New Laws Expanded New Jersey Employee Rights
The state legislature passed several laws in 2019 with the intention of improving the lives and expanding the rights of the state’s workforce.
The legislature passed a new law aimed at increasing transparency in the settlement of LAD claims, making any confidentiality provisions unenforceable if they have “the purpose or effect of concealing the details relating to a claim of discrimination, retaliation or harassment.” Beyond that prohibition, the new law invalidates the waiving of rights or remedies involving discrimination, retaliation or harassment claims under LAD. This may have the effect of eliminating arbitration agreements and jury-waiver agreements in employment agreements. The only exception to the new law is where waivers exist as part of collective bargaining agreements.
The legislature expanded the state-wide paid sick leave policy, making it mandatory for all employers and extending sick leave to both full and part-time employees. Each employee will accrue an hour of earned sick leave for every thirty hours that they work, up to a required minimum of 40 hours of leave per year. The law does not require employers to provide more than that minimum of 40 hours of paid sick leave. Unused sick time does not need to be carried over into the next year and employers do not have to pay employees for unused sick leave upon termination as long as their employee policies make the lack of carryover and payment clear.
In July of 2018 the Diane B. Allen Equal Pay Act when into effect, providing New Jersey employees broader rights than the federal Equal Pay Act. It prohibits employers from paying employees in a protected class less than others not in that class for “substantially similar work, when viewed as a composite of skill, effort and responsibility.” The law does allow pay differentials, but employers must show that they’re based on a seniority or merit system, or that the difference is based on a “bona fide factor[] other than the characteristics of members of the protected class, such as training, education or experience, or the quantity of production.” The law is not retroactive to payments prior to its effective date, so employees cannot file legal claims for pay differentials that occurred prior to July of 2018.
Family leave was significantly extended in February of 2019, and so was Family Leave Insurance. As of June 30th, 2019, employers with 30 or more employees are required to provide family leave. This represents an expansion of the law, which had originally only applied to employers with 50 or more employees. The change to the law also broadened the definition of who qualifies as a “family member” care for, and allows for shorter advance notice to be given. A change to the state’s Family Leave Insurance Law will go into effect in July of 2020, increasing the duration of paid sick leave from six weeks to twelve weeks of consecutive leave, or from 42 intermittent days to 56 intermittent days. The amount to be paid also increased from 66.6% of weekly salary to 85% of salary, with a maximum of $859 per week (70% of the statewide weekly wage average).
One other change made to the Family Leave Act prevents employers from making their employees take two weeks of paid time off before using Family Leave Insurance, though an employee can choose to do so without reducing their Family Leave Insurance benefits.
The state introduced a progressive increase in the hourly minimum wage, from $8.85 per hour to $10 per hour on July 1, 2019, then adding another dollar per hour on the 1st of each year until January 1, 2024 when it will have reached $15 per hour. Businesses with six or fewer employees and those who employ seasonal workers will be able to introduce the increase more slowly, by just 80 cents per hour each year. This will make their end date for achieving the $15 per hour rate January 1, 2026.
New Jersey has prohibited employers from screening prospective employees by their salary history, including what wages, salaries or benefits they have received, and has prohibited employers from making employment decisions based on an applicant’s refusal to provide that information. Employers who violate this law will be subject to financial penalties.
The state has strengthened the rules and expanded the penalties for wage payment violations, requiring that employers who violate wage payment requirements pay liquidated damages equal to 200% of the owed wages as well as the wages themselves. Repeat offenders will pay increased fines, and administrative penalties will now be imposed at a rate of $250 for first time offenders and $500 for each additional violation. Corporate officers and employees responsible for the violations may now be subject to criminal penalty, as well as wage payment audits.
Employers who retaliate against an employee who files a wage payment complaint will be subject to fines, payment of wages lost as a result of the liquidated damages, 200% liquidated damages, and may be charged with a disorderly persons offense. Where an employee has lost their job as a result of filing the complaint, the employer will be required to offer reinstatement where legal. Finally, the statute of limitations for wage law violations have been extended to six years, and any employer that violates the laws will have their name posted on a public website.
New Jersey residents are fortunate to live in a state that makes the rights of its citizens a top priority. If you believe that you have been a victim of employment discrimination, call us today to learn how we can help.