Changes To The Contract
Employers may make unilateral changes to the terms of the employment relationship, unless the parties have a contract, such as an employment agreement, collective bargaining agreement or some other agreement, that provides that changes may only be made with the consent of both parties.
Change In Ownership Of The Business
The federal Worker Adjustment and Retraining Notification Act (“WARN Act”), requires 60 days’ prior notice in the event of a plant closure or mass layoffs affecting specific numbers of employees.
New Jersey has a similar, but more employee-friendly law, the Millville Dallas Airmotive Plant Job Loss Notification Act (commonly referred to as “NJ WARN Act”). The NJ WARN Act currently requires employers to provide 60 days’ prior notice in the event of a mass layoff, termination of operations, or transfer of operations. However, the NJ WARN Act was amended in January 2020, to require 90 days’ notice in the event of a mass layoff, transfer of operations or termination of operations, and to mandate payment of severance to affected employees in the amount of one week for each full year of employment. The NJ WARN Act was also amended to cover employers with 100 or more employees, regardless of whether the employees are full-time or part-time. These amendments were suspended in April 2020 due to the COVID-19 pandemic, but will become effective 90 days following the termination of the state of emergency declaration in New Jersey.
The NJ WARN Act can be triggered by a mass layoff, or a transfer or termination of operations. Once the amendments become effective, a “mass layoff” will be defined as a termination of 50 employees within New Jersey, during any 30-day period, regardless of the employees’ hours, tenure, or specific work location within the state. Currently, a mass layoff must result in the termination of 500 employees at the “establishment” or 50 employees representing at least 33 percent of the total workforce of the “establishment.” An “establishment” under the current definition is “a single location or a group of contiguous locations, including groups of facilities which form an office or industrial park or separate facilities just across the street from each other.”
Social Security Contributions
The employer and employee must make compulsory Social Security contributions to the federal government. Employers and employees must contribute a percentage of wages in accordance with federal law.
Accidents At Work
Federal law requires employers to keep logs of all accidents at work. State law requires employers to maintain insurance to provide compensation for workplace injuries. The New Jersey Workers’ Compensation Act mandates that employers must purchase workers’ compensation insurance, at no cost to the employees, to provide injured workers with monetary benefits, medical care and rehabilitation services. Most employees will be deemed to have waived their common law right to sue their employers or coworkers in tort for workplace injuries, absent certain exceptional circumstances.
Discipline And Grievance
New Jersey has no state rules governing discipline and grievance procedures in the private sector. Unless a collective bargaining agreement or a specific contractual provision provides otherwise, discipline and grievance procedures are within the employer’s discretion and are frequently set forth in employee handbooks.
Federal and state laws prohibit discrimination in the workplace and recognize harassment as a form of discrimination. Under the LAD, New Jersey employees are protected from discrimination on the basis of race, hair texture, hair type and protected hairstyles historically associated with race, creed, color, national origin, nationality, ancestry, age, sex, pregnancy, breastfeeding status, familial status, marital status, domestic partnership status, civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information, liability for military service, status as a smoker or non-smoker, and mental or physical disability. The LAD prohibits discrimination based on the employee’s actual or perceived membership in any protected class. In certain circumstances, employees may be afforded protection under the LAD based on their association with a member of a protected group.
The concept of equal pay is recognized by federal and state legislation. Under the New Jersey Diane B. Allen Equal Pay Act (“NJ EPA”), it is an unlawful employment practice to pay an employee who is a member of any protected class under the LAD less compensation and benefits than employees outside the protected class for “substantially similar” work, unless the employer can demonstrate a recognized justification for the pay differential, such as, a seniority system, merit system, or legitimate bona fide factors (e.g. training, education, experience, etc.). “Substantially similar” work will be determined by a “composite of skill, effort and responsibility.”
The NJ EPA prohibits retaliation against employees who make inquiries relating to compensation and/or complain of compensation disparities. Claims brought under the EPA are subject to a six-year statute of limitations. An employer who violates the pay equity or anti-retaliation provisions of the NJ EPA will have exposure for treble damages (“three times any monetary damages”), in addition to the other remedies available under the LAD, including compensatory damages, both economic and noneconomic, punitive damages, equitable relief, attorneys’ fees, and costs and penalties.
There are specific reporting requirements under the NJ EPA for employers who contract with the state or any other public body to provide services.
Compulsory Training Obligations
There are no compulsory training obligations, but employers are advised to provide anti-harassment, anti-discrimination and anti-retaliation training. Safety training is also advisable in certain industries.
State law governs permissible deductions from employee earnings. Offsets to employee earnings may not result in a payment of less than the hourly minimum wage for hours worked. The New Jersey Wage Payment Law specifies the permitted deductions/offsets to earnings. Under New Jersey’s Wage Theft Law, employers and individuals can face both civil and criminal liability for failing to pay wages when due.
Payments For Maternity And Disability Leave
Employers may offer paid parental or disability leave pursuant to a private plan, but are not required to do so, unless the leave would qualify as paid leave under the Earned Sick Leave law as described above. In the event an employer does not offer benefits under a private plan, employees may be eligible for paid state leave benefits. Pregnant employees who are disabled during their pregnancy can apply for disability benefits under the New Jersey Temporary Disability Benefits Law.
After the birth or adoption of a child, eligible employees can apply for twelve (12) weeks of paid leave benefits under New Jersey’s Family Leave Insurance Program, subject to certain limitations.
There are compulsory insurance requirements under state law for workers’ compensation (for work-related injuries and illnesses) and unemployment benefits. Additionally, under federal law, the Patient Protection and Affordable Care Act (“ACA”) and the Health Care and Education Reconciliation Act, require employers with 50 or more full-time equivalent employees to provide health insurance coverage to full-time employees. Employers who fail to provide such coverage may face a $2,700 penalty per employee. Employers may also be subject to a $4,060 penalty if the coverage offered by the employer is “unaffordable” or does not meet certain minimum standards required by law.
Absence For Military Or Public Service Duties
In addition to leave provided for by the federal Uniformed Services Employment and Reemployment Rights Act (“USERRA”), New Jersey’s Military Leave Law provides reemployment rights to individuals who successfully return from military service, remain qualified for their former positions, and apply for reemployment within 90 days after their service ends. Employers must restore such persons to their former jobs, or to a position of like seniority, status and pay, unless the employer’s circumstances have changed.
Additionally, employees may be eligible for leave under the FMLA when the employee’s spouse, son, daughter or parent — who is a “covered military member” — is on active duty or call-to-active-duty status and there is a “qualifying exigency.” Employees may also be eligible for “military caregiver leave” under the FMLA, which is also known as “leave to care for a covered service member.”
State law requires that employers allow unpaid time for jury service and prohibits retaliation against employees for jury duty service. Some employers allow for paid time off for jury service as a matter of policy. The court system typically pays jurors a very modest daily stipend for their service.
Works Councils or Trade Unions
Under federal law employees can force the employer to recognize a union by demonstrating that a majority of similarly-situated employees support a union, usually by an election. Individuals who are involved in activities to promote a union are protected from being subjected to adverse employment actions, such as dismissal, because of their activities in that role.
Employees’ Right To Strike
Under federal law groups of employees may strike, even if there is not a collective bargaining agreement or formal union at the site of employment, subject to limits for employees who provide public services.
Employees On Strike
Typically, employees on strike cannot be fired unless the employees engage in serious misconduct while on strike or the strike was unlawful and unprotected. However, if employees are on an economic strike, they may be permanently replaced by the employer and may be denied reinstatement if there are no open positions available at the end of the strike.
Employers’ Responsibility For Actions Of Their Employees
Employers are responsible under agency principles for acts of employees within the scope of their employment or conducted with the apparent authority of the employer. Employers are not responsible for employees’ actions outside the scope of their employment.