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
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