Articles Posted in Uncategorized

Underscoring the paramount need to put in place comprehensive health and safety standards designed to mitigate the spread of the COVID-19 virus in our state, New Jersey Governor Phil Murphy recently issued Executive Order No. 192, requiring employers with employees physically present at worksites to adhere to strict COVID-19 safety requirements. Executive Order No. 192 provides in part:

1. Effective at 6:00 a.m. on Thursday, November 5, 2020, every business, non-profit and governmental or educational entity (hereinafter collectively referred to as “employers” or “employer”) that requires or permits its workforce to be physically present at a worksite to perform work is required to abide by the following requirements to protect employees, customers and all others who come into physical contact with its operations:

a. Require that individuals at the worksite maintain at least 6 feet of distance from one another to the maximum extent possible, including but not limited to during worksite meetings, orientations and similar activities, in common areas such as restrooms and break rooms, and when individuals are entering and exiting the workplace. Where the nature of an employee’s work or the work area does not allow for 6 feet of distance maintained at all times, employers shall ensure that each such employee wears a mask and shall install physical barriers between workstations wherever possible.

In 1945 New Jersey became the first state since the Reconstruction era to pass comprehensive anti-discrimination legislation with its enactment of the Law Against Discrimination, or as it is more commonly called, the “LAD.”  In enacting the LAD, the NJ Legislature declared “that practices of discrimination against any of its inhabitants…are matters of concern to the government of the State, and that such discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State.” N.J.S.A. 10:5-3. While the LAD expressly states that “inhabitants” or residents of New Jersey are protected from discrimination, no mention is made as to whether its protections extend to victims of discrimination who reside or work outside of New Jersey. Fortunately, in Calabotta v. Phibro Animal Health Corp., 460 N.J. Super. 38 (App. Div. 2019) the New Jersey Superior Court, Appellate Division concluded the LAD could extend in appropriate circumstances to plaintiffs who reside or work outside of New Jersey.

In Calabotta, the plaintiff, an Illinois resident, sued his New Jersey-based former employer, alleging that it wrongfully denied him a promotion to a position in New Jersey and thereafter wrongfully terminated him from his job with its subsidiary in Illinois.  Specifically, plaintiff Calabotta claimed that the company engaged in “associational” discrimination against him in violation of LAD based on the fact that his wife was then terminally ill with cancer.  As an initial matter the Appellate Division in Calabotta found there to be a conflict between New Jersey law and Illinois law when it came to recognizing “associational” discrimination as a viable cause of action.  It was recognized in New Jersey. O’Lone v. N.J. Dep’t of Corr., 313 N.J. Super. 249, 255 (App. Div. 1998) (where a plaintiff is wrongfully discharged for associating with a member of a protected group under the LAD, it is the functional equivalent of being a member of that same protected group). By contrast, Illinois law had not recognized a cause of action for associational discrimination.

In deciding whether LAD covered plaintiff Calabotta’s failure to promote and wrongful discharge claims, the Court decided the factors spelled out in the Restatement (Second) of Conflicts of Laws (the “Second Restatement”) were applicable:

New Jersey health care facility workers cannot refuse to receive a flu shot.  On January 13, 2020, Governor Phil Murphy enacted N.J.S.A. § 26:2H-18.79, concerning influenza vaccination in New Jersey health care facilities.  The statute first provides that, beginning with the onset of the first flu season next following the effective date of the legislation, each health care facility (i.e., general or special hospital, nursing home or home health care agency) must establish and implement an annual flu vaccine program in accordance with the recommendations of the federal Centers for Disease Control and Prevention (CDC) and any rules and regulations adopted in accordance with the statute.

For the purposes of its annual flu vaccine program, each health care facility must annually provide a flu shot to each of its employees and require that each employee at the facility receive a flu shot annually no later than December 31 of the current flu season, which flu shot must be provided by the facility.

A health care facility employee who does not wish to have a flu shot must prove that he or she has a medical exemption, which must be submitted using a form designated by the Department of Health, stating that the flu shot is “medically contraindicated, as enumerated by the Advisory Committee on Immunization Practices of the federal Centers for Disease Control and Prevention.”  An attestation of a medical exemption is subject to approval by the facility following the facility’s review to confirm that the exemption is consistent with CDC standards.  A health care facility must not discharge or reduce the pay of any employee who receives a medical exemption from the annual flu shot requirement.

Good news for New Jersey workers!  New Jersey Governor Phil Murphy enacted amendments to the New Jersey Wage and Hour Law, effective August 6, 2019, and New Jersey Family Leave Insurance (FLI), effective July 1, 2020, and the New Jersey Department of Labor and Workforce Development recently offered extended benefits to unemployed workers.  Among other changes to the Wage and Hour Law, the recent legislation increases the statute of limitations from two years to six years and provides for liquidated damages up to 200% of the amount of wages lost.  The major amendments to New Jersey FLI are a doubling of the leave period from 6 weeks to 12 weeks and an increase in the benefit rate from 66 2/3% to 85% of a claimant’s average weekly wage.  Unemployment benefits have been extended from 26 to 46 weeks.

New Jersey Wage and Hour Law

  • Statute of Limitations: Employees now have six years, instead of two years, to bring a claim for unpaid minimum wages or unpaid overtime compensation. N.J.S.A., 34:11-56a25.1.

One cannot fix what is not recognized to exist, nor fix

which is not understood to be broken.

Assimilation for Black Americans is near impossible. Skin color cannot be escaped and keeping quiet does not hide racial identity. The blackness of an African American’s skin makes their basic human and constitutional right to be treated with equanimity and fairness dependent on how white Americans choose to treat them, consciously or unconsciously.

By passing and signing into law the New Jersey Equal Pay Act (EPA), our state legislature and Governor Murphy made clear that unequal pay practices based on a person’s gender, race, national origin, disability or other protected class characteristic, for employees performing same or similar work, will not be tolerated in New Jersey. A powerful remedy found in the EPA allows an aggrieved employee to seek back pay damages for discriminatory pay practices going back 6-years!

The passage of the EPA meant that the statute of limitations for claims based on discriminatory pay was expanded from 2-years under the existing New Jersey Law Against Discrimination (NJLAD) to a period of 6-years. Specifically, this  look-back provision of the EPA found at  N.J.S.A. 10:5-12A, , states that, “…liability shall accrue and an aggrieved person may obtain relief for back pay for the entire period of time, except not more than six years, in which the violation with regard to discrimination in compensation or in the financial terms or conditions of employment has been continuous, if the violation continues to occur within the statute of limitations…” (emphasis added).

A plain reading of the EPA makes clear that a victimized employee is permitted to recover damages for 6-years of unequal pay so long as it is shown to the satisfaction of a court that the complained of unequal pay practices continued to take place one or more times after the EPA took effect on July 1, 2018. Despite the apparent clarity of the EPA, some employers sought to challenge this 6-year claw back period arguing that by giving effect to the 6-year statute of limitation as of its effective date would mean the law was being given a manifestly unfair retrospective application. Retrospective application of a new law or rule depends on whether there has been a departure from existing law. State v. G.E.P., 458 N.J. Super. 436, 444-445 (App. Div. 2019). If there is a departure from exiting a law, the new law or rule is only given prospective effect. Id.  A new rule or law exists if “‘it breaks new ground or imposes a new obligation ….  [or] if the result was not dictated by precedent existing at the time the defendant’s conviction became final.'” Id. quoting State v. Lark,  117 N.J. 331, 339 (1989) (quoting Teague v. Lane,  489 U.S. 288, 301 (1989)).

Neither the language of an employment agreement, nor the label an employer places on an employee, determines eligibility for unemployment benefits; rather, it is the substance of the business relationship which does. Law Office of Gerard C. Vince v. Bd. of Review, 2019 N.J. Super. Unpub. LEXIS 1846, (decided on September 4, 2019). In Vince, a law firm agreed to hire a “consulting paralegal” on a temporary basis to integrate their files onto a web-based computer software system. Id. at *2. The law firm identified which files it wanted integrated but never instructed the paralegal on how to do so; nor did it precisely determine when or where she would do so. Id. at *2-3. The paralegal was paid according to her chosen hourly rate based on the invoices she presented. To confirm their relationship, the law firm had the paralegal sign a Consulting Paralegal Understanding (CPU), stating that she was hired as “an independent contractor and as such are not an employee…subject to receive unemployment or other employee related benefits.” Id. at *3. However, when those services ended, she decided to file an unemployment benefits claim with the Department of Labor and Workforce Development (“DOL”) and was approved.

Generally, under New Jersey’s Unemployment Compensation Law (UCL), N.J.S.A. 43:21-1 to 24.30, employers are obligated to provide compensation benefits to eligible employees who have been terminated.  However, if an employer can show the individual was not an employee, but rather a consultant providing specific services, and if the employer can meet the three-part “ABC test” as outlined in N.J.S.A. 43:21-19(i)(6), unemployment benefits may be denied.  The ABC test requires the employer to demonstrate: (A) the individual retained has been and will continue to be free from the employer’s control or direction over the performance of such service; (B) the service performed is outside the usual course of services the business provides, or performed outside of the places where such services are performed; and (C) the individual is customarily engaged in an independently established occupation. See Schomp v. Fuller Brush Co., 124 N.J.L. 487 (Sup. Ct.1940); and Hargrove v. Sleepy’s, LLC, 220 N.J. 289, 305 (2015).

Pointing to the CPU, the law firm in Vince contested the DOL’s determination that the consulting paralegal was eligible for benefits. Both the Appeal Tribunal (“Tribunal”) and the Board of Review (“Board”) upheld the Department’s decision, stating that the CPU’s language was “not determinative,” and the firm did not satisfy each part of the ABC test. Vince at *3. On appeal, however, the Appellate Division (“Division”) reversed the above rulings, not because of CPU’s terms, but because after analyzing the totality of the factual circumstances, it was clear both the Tribunal and Board “made certain findings that are not accurate,” and the law firm satisfied all three elements of the ABC test. Id. at *5.

Sometime in the 1750s Benjamin Franklin wrote lamenting the influx of non-Wasp immigrant settlers into colonial America, “Those who come hither are generally the most ignorant Stupid Sort of their own Nation.”  Mr. Franklin’s caustic commentary shows how the topic of immigration has always been a heated one in this country. Hence, it is not surprising how immigrants often work in fear of being harassed and disparately treated because of their residency or immigration status. Fortunately, there is protection here in New Jersey for immigrant workers under New Jersey’s Law Against Discrimination (“LAD”).  LAD states that an employer cannot discriminate based on race, national origin, religion, gender, age, disability, marital status, etc.  Under the LAD, discrimination based on immigration or citizenship status is treated differently than national origin discrimination because the discrimination is typically based on the employee’s immigration status rather than the country where they originated from.

Although the LAD does not specifically protect employees from discrimination based on immigration and/or residency status, the Immigration Reform and Control Act (“IRCA”) does. 8 U.S.C.A. § 1324. ICRA protects workers from discrimination based on their immigration and/or citizenship status. IRCA makes it unlawful for an employer to discriminate against its employees because of their citizenship, immigration or residency status in hiring, firing, and/or recruitment. Id.  IRCA also makes it unlawful for an employer to demand more or different documents that are legally acceptable for employment verification purposes. Similarly, an employer cannot refuse to accept documents that appear to be acceptable and are legally acceptable. Id. The IRCA further prohibits intimidation, threats, retaliation, or coercion against any employee who files charges. It also prohibits retaliation of those individuals who cooperate with an investigation, proceeding, or IRCA hearing. Id.

Individuals protected under the IRCA include citizens of the United States, permanent residents, lawful temporary residents, refugees, and asylees. However, the IRCA does not protect workers from discrimination and harassment who have unlawfully entered our country and/or are illegally employed in this country. In fact, the IRCA was the first federal law to deem it unlawful for employers to knowingly hire persons who are not authorized to work in the United States. It is also illegal under the IRCA to continue to employ an undocumented worker or one who has lost their authorization to work in this country. Consequently, the IRCA requires employers to verify each employee’s work eligibility and identity.

It’s a sad fact that many companies in our country discriminate against American workers in favor of cheaper foreign temporary labor. In fact, the U.S. Department of Labor released a 2018 job report showing that while employment for foreign workers in the U.S. increased by 3%, employment for American workers increased a little less than 1.5%.  To combat this disturbing trend, on August 1, 2018, the United States Department of Justice joined forces with the Unites States’ Departments of Civil Rights Division and Labor to announce the agencies’ joint effort to target companies that exhibit “unlawful discrimination” against American workers by hiring foreign labor. These employers often hire cheap foreign labor through the H-1B, H-2B and L-1 visa programs. These visa programs are briefly described as follows:

  • H-1B visas are issued to foreign workers who can fill positions so “specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.” Foreign computer programmers serve as a common example of those who have been issued a H-1B visa.
  • H-2B visas allow U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs where there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.  Examples of these may be persons filling housekeeping positions for companies operating in the travel and leisure industry.
Contact Information