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Timothy K. Giordano, Esq.

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2019 Trend Alert: Employment Law (NJ)

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With the countless developments in workplace law last year in New Jersey, responsible organizations of all sizes are continuing to review policies and practices to ensure compliance. They are also looking ahead to what’s next, and we examine below the most significant legal issues facing employers in the new year.

WORKING ‘OFF THE CLOCK’

These days most everyone has remote access to work, via email, e-files, text and more, but it’s something to keep an eye on for your hourly employees, to avoid unexpected payroll demands for “off the clock” work.

Remote access policies should be in writing, distributed to all employees, and access restricted where it makes sense.

It is also good practice to train managers on the issue. For example, managers need to understand that while those off-hour questions posed to staff might seem de minimus, courts have showed an increased willingness to compensate employees for any and all off-the-clock work, even remote and by the minute.  A little planning now can avoid these misunderstandings, which are perfect fodder for costly and protracted class action lawsuits.  

PAID SICK LEAVE

New Jersey is one of 11 states leading the pack on mandating paid sick leave for employees, as of October of last year.

Employers in NJ will be wise to revise or establish a comprehensive leave management program in compliance with the new law, if they haven’t already, as we expect the plaintiffs bar to monitor this evolving area of law closely.

It’s worth noting that many employers who have yet to themselves directly notify staff of the new law are already in violation of the law.

Further, these new requirements apply regardless of organization industry, sector, or size. That means you still may need to act now, even if you have only a single employee.

NOTICE & POSTING REQUIREMENTS

A big theme for workplace rights and responsibilities for 2019 will be transparency.

The list of legal notices that must be posted, and in many cases distributed directly to staff, has steadily grown under New Jersey law, and we expect this year will be no different.

Now is the perfect time to doublecheck, and refresh as necessary, the myriad notice requirements under a litany of state regulations: (i) New Jersey Law Against Discrimination (NJLAD); (ii) New Jersey Security & Financial Empowerment Act (SAFE); (iii) New Jersey Smoke-Free Air Act; (iv) New Jersey Right-to-Know Law; (v) Conscientious Employee Protection Act (CEPA); (vi) New Jersey Family Leave Act; and (vii) New Jersey Family Leave Insurance Law.

Other required notices relate to gender-equality, child labor laws, unemployment and temporary disability benefits, and the new paid sick leave law, among other things.  

While a proper notice compliance plan this year will require comprehensive planning, most pressing in coming weeks is the annual CEPA and gender-equality notices, which must be distributed to employees by January 31.

NURSING MOTHERS

Nationally and locally in 2018 there was a lot of attention in the area of expanding workplace rights for nursing mothers. That will continue in the new year.   

In New Jersey, the NJLAD has been amended to provide that all nursing mothers must be given lactation breaks (in every workplace no matter the size). Further, if employees are otherwise compensated for breaks, then they must also be paid for their lactation breaks.  Finally, employers must provide a suitable private location for mothers to nurse, and it must be in close proximity to the workplace.

ARBITRATION AGREEMENTS

The legal limits of employer “mandated” arbitration agreements will continue to be tested, facing more challenges in 2019.

For example, in light of the “Me Too” movement, there is a growing desire to limit the enforceability of arbitration agreements in matters alleging sexual harassment. As a matter of policy, traditional court remedies may indeed be a better deterrent; at the very least, remedies in a court of law may more fairly compensate victims.   

Still, arbitration agreements are generally a good, valid mechanism for employers to avoid costly and protracted proceedings, especially class actions. Indeed, the United States Supreme Court held that mandatory class actions waivers in arbitration agreements are enforceable, in the Epic Systems case last May.

Nonetheless, New Jersey courts will scrutinize even seemingly valid arbitration agreements to ensure there was a “meeting of the minds.” For example, in Flanzmann v. Jenny Craig, the Appellate Division recently held that an arbitration agreement was not enforceable because it failed to include the forum for the arbitration. As a result, the Court reasoned, the agreement lacked sufficient detail under applicable contract law.

PAY EQUITY

Equal pay for equal work remains a hot-button issue.

It is unwise, and illegal in many situations, to prohibit your employees from discussing pay among themselves, a once-common prohibition.  The current thinking is that these conversations may bring to light pay differentials that should be addressed.

But New Jersey is taking an even more direct stance to tackle the pay gap. Under the new Diane B. Allen Equal Pay Act, the NJLAD has been amended to provide that it is illegal to pay any protected class employee less than any other nonprotected (majority) class, for substantially similar work.

Against this legal and moral backdrop, the most responsible employers of all sizes are at a minimum reviewing their compensation policies; many will also undertake comprehensive salary reviews in 2019 to detect and address any possible issues.

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As employee rights continue to expand in 2019, we remain ready to help protect business and nonprofit organizations as they do right by their employees. For more information or to schedule a business compliance review, please email info@lawjusticeopportunity.com **

**This Trend Alert does not establish an attorney-client relationship and is not intended to be a complete representation of applicable state, federal and local law. Nothing herein should be construed as legal advice.




Tim Giordano