New Jersey Legislative Update, Part II: What’s in the Works for New Jersey Employers?

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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A Higher Minimum Wage in Certain Counties

On March 14, 2016, a bill (A3471) was introduced that would require all employers in Essex, Hudson, Camden, Mercer, and Middlesex counties to pay their employees at least $20 per hour from January 1, 2017, through January 1, 2022, at which point the minimum wage would revert to the state’s current minimum wage.

Credit Checks of Employees and Applicants, Prohibit Credit History Discrimination

On January 12, 2016, the New Jersey Senate introduced yet another bill (S618) seeking to prohibit employers from requiring credit checks on current or prospective employees in most circumstances. On February 10, 2016, the New Jersey General Assembly introduced a parallel version of the bill (A1375). Various similar attempts to pass credit check legislation in New Jersey have been unsuccessful. If enacted, the latest bills would prohibit an employer from requiring a credit check on a current or prospective employee, unless the employer was required to do so by law or reasonably believed that an employee had engaged in unlawful financial activity. They would also prohibit discrimination against a current or prospective employee based on information in a credit report, and prohibit retaliation against an individual for exercising his or her rights under the act.

Neither bill would prevent an employer from performing a credit inquiry or taking an employment action if credit history is a bona fide occupational qualification of a particular position or employment classification, but seemingly would limit bona fide occupational qualifications to the following positions: (1) managerial positions that involve setting the financial direction or control of the business; (2) positions that involve access to customers’, employees’, or employers’ personal belongings, financial assets, or financial information, other than information customarily provided in a retail transaction; (3) positions that involve fiduciary responsibility to the employer, including, but not limited to, the authority to issue payments, transfer money, or enter into contracts, or those that involve leases of real property; (4) positions that provide expense accounts for travel; or (5) law enforcement officer positions for law enforcement agencies, or governmental or nongovernmental security personnel positions, including security personnel in homeland security agencies.

Each bill would permit individuals to file civil suits to redress violations of its provisions, providing for injunctive relief and damages, including reasonable attorneys’ fees and court costs. In addition, both bills provide for the imposition of civil penalties collectible by the Commissioner of the New Jersey Department of Labor and Workforce Development (NJDOL).

Expanded Scope of the Law Against Discrimination

On February 10, 2016, the New Jersey General Assembly introduced a bill (A1379) seeking to amend the New Jersey Law Against Discrimination (LAD) in several significant ways. Among other changes, it seeks to (1) expressly prohibit “English-only” rules in the workplace under most circumstances; (2) add familial status to the list of protected classifications under the LAD; (3) expand the coverage of the LAD to independent contractors; (4) expressly require employers to provide reasonable accommodations for disabilities and for pregnancy or pregnancy-related conditions, unless to do so would impose an undue hardship upon the employer; (5) remove language from the LAD that currently allows an employer to refuse to hire or promote a person over age 70 (and repeal the provision that allows the forced retirement of an employee of an institution of higher education at age 70); and (6) amend the provisions of the LAD that allow for the compulsory retirement of an individual employed in a bona fide executive or high policy making position who is at least 65 years of age by raising the minimum retirement benefit for such person to at least $44,000. 

Expedited Review of Injunction Actions Against Employers Closing Plants

On January 27, 2016, the New Jersey General Assembly introduced a bill (A1800) which would, if enacted, allow the NJDOL) to seek injunctive relief against any employer that violates any provisions of New Jersey’s mini-Worker Adjustment and Retraining Notification Act, which is called the Millville Dallas Airmotive Plant Job Loss Notification Act. The bill further provides that injunctions obtained by the NJDOL in such cases would be subject to expedited judicial review. Prior attempts to pass similar legislation were unsuccessful in the 2008, 2010, 2012, and 2014 legislative sessions.

Repayment of Unemployment Benefits Overpayments Obtained Without Fault

On January 27, 2014, a bill was introduced (A1854) that would allow individuals to keep unemployment compensation overpayments they received through no fault of their own in certain circumstances. Except when the overpayments were the result of the individual’s knowing nondisclosure or misrepresentation (in which case all overpayments must be repaid), the individual would need only repay a percentage of the overpayment, based on a sliding scale tied to the delay before which the NJDOL alerted the individual of the overpayment. After 365 days, the overpayment would not need to be repaid. Prior versions of this bill failed to gain traction in 2010, 2012, and 2014.

Presumption of Employer-Employee Relationship for Truck Drivers

Under Assembly Bill A1912, introduced on January 27, 2016, and Senate Bill S800, introduced on January 12, 2016, the work arrangement between an individual providing trucking services in the container trucking industry or in the parcel delivery industry would be deemed to be an employer-employee relationship unless and until the party receiving the services overcomes the legal presumption of an employer-employee relationship. In order to overcome the presumption, the employer will have to demonstrate to the satisfaction of the NJDOL that (1) the individual has been and will continue to be free from control or direction over the performance of his or her service, both under the individual’s contract of service and in fact; (2) the service is either outside the usual course of the business for which the service is performed, or the service is performed outside of all the places of business of the employer for which the service is performed; and (3) the individual is customarily engaged in an independently established trade, occupation, profession, or business.

Under the bills, any employer that misclassifies individuals in the container trucking or parcel delivery trucking industries as independent contractors and fails to pay wages, benefits, or taxes required for employees would be guilty of a disorderly persons offense for unknowing violations, and guilty of a crime of the second or fourth degree for knowing violations. Additionally, each week, in any day of which an employee is misclassified, and each misclassified employee, shall constitute a separate offense. The bills would also eliminate the current state law exemption from the three-factor analysis described above. Prior versions of these bills were unsuccessful in the 2010, 2012, and 2014 legislative sessions.

Compensation While on Jury Duty

Assembly bill A2258, introduced on January 27, 2016, would require employers to pay employees their usual compensation for each day they are present for jury service, less the amount of per diem fee paid for each day of jury service. Violations would subject an employer to a disorderly persons offense and provide for a civil cause of action for economic damages. 

New Jersey Bill Seeks to Prohibit Employers from Seeking or Releasing Employee Salary History

Assembly Bill A3480, introduced on March 14, 2016, would prohibit private employers from seeking or releasing the salary history of current or prospective employees without written authorization from the current or former employee. The bill would not apply to salary histories released to employer or employee representatives in the context of collective bargaining negotiations. If enacted, an employer that violates any provision of the bill would be subject to a civil penalty of up to $2,000 for the first violation and $5,000 for each subsequent violation. A similar bill, which was proposed in November of  2015, was unsuccessful.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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