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HR Resource Blog

This blog is published by the attorneys in Capehart Scatchard’s Labor and Employment Group. On this site, employers and human resources professionals will find useful tips as to how to keep the workplace, and workplace policies, in compliance with state and federal employment laws.
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Does Anybody Really Know What “Travel” Time Is… And Does Anyone Really Care? 

The rock group Chicago once asked in one of its famous hits: “Does anybody really know what time it is,” to which the lead singer ultimately responded, “does anybody really care?” In the labor and employment realm, time is something that employers need to care about, especially when it comes to wage and hour legal compliance. What is time worked? That is important because non-exempt hourly employees must be paid for all such time. But what exactly is it?

Often the foregoing question is easily answered. If you see someone performing actual work or services for a company, that is time worked and the employee must be compensated for that time. But not every question like that is so obviously answered. One of the trickiest of areas when it comes to figuring out compensability is travel time. When must an employee be paid while technically the employee is doing nothing more than traveling from one location to another? Several of my clients have had to deal with this issue in audits with the United States Department of Labor (“USDOL”). The lesson my clients have learned from this experience is that, when it comes to travel time, you must know the rules applicable to such time. However, when you actually study such rules, you will see that they are not the most logically consistent or intuitive of rules in determining when you must pay your non-exempt employees. Thus, when faced with a travel time issue, you must pick out the correct rule and precisely fit your situation into that applicable rule-otherwise you will face a significant legal problem.  

The easiest of the travel rules to apply is the coming and going to work rule. Ordinary travel from home to work and back is not considered work time and is thus not included in an employee’s wage calculations. Simple enough. Now, how about if the employee, instead of going directly to the employer’s facilities, travels instead to the actual work location, such as a construction site, where the employee is to perform his/her services? Again, that time is not counted because the employee is coming and going from home to the work site and back home again. But what happens if, before the employee goes to the construction site, he/she needs to stop for a moment at the employer’s facilities to pick up needed tools for the project and then goes to the work site? Not compensable travel time, right? Nope, wrong. Why, because there is a specific rule that requires in such circumstances that the employee’s travel time from the employer’s facility to the actual construction project be counted as work time, all because the employee made that first stop to pick up tools. Clear, right? Logical, right?

Of course not-this compensability requirement does not logically fit the presented circumstances. But that is the rule that the USDOL created and applies in such cases. So, when it comes to travel issues, employers need to know the rules because auditors do. You cannot let your company fall prey to wage and hour violations that can be simply avoided by identifying an issue and finding and applying the right travel time rule that fits your facts.

Therefore, with apologies to Chicago, every employer needs to care about time, especially travel time.              

5 New Year’s Resolutions For Your Workplace In 2023

It is hard to believe that we are only a few days from the start of December, the final month of 2022. Where does time go these days? With 2023 just around the corner, employers are presented with a wonderful opportunity to review internal policies/procedures and hopefully help avoid future workplace legal problems. Here are five suggested New Year’s Workplace Resolutions for 2023.

  1. When was the last time your employee handbook was reviewed and updated? Policies and procedures need to be revised periodically to keep current with ongoing changes in the law, especially in a place like New Jersey, where it is frequently the case that additional laws and judicial decisions impose new legal requirements. Therefore, 2023 presents a great opportunity for employers to review handbook polices and bring them up to speed with any recent legal changes that impact your workplace, or to reflect changes in your workplace because of adjusting to doing business coming out of a pandemic, i.e. work from home policies. Alternatively, if you do not have one yet, the upcoming new year provides a wonderful chance for your workplace to reap the benefits of having all relevant workplace policies stored in one collective document. Relatedly, when was the last time you conducted anti-harassment training for your workforce? While the pandemic made this harder to do, virtual trainings are a great way to continue to meet all mandated employee training requirements and in person trainings I am happy to say are starting a comeback. 
  2. When was the last time your job descriptions were reviewed and updated?   Job descriptions are very important, especially in gauging compliance with mandated accommodation requirements for persons with disabilities under both federal and state discrimination laws. Ask yourself: do your job descriptions accurately reflect what an employee actually does in his/her job today?  Because courts often rely on how an employer defines the essential job functions of an employment position in assessing disability discrimination and failure to accommodate issues, it is important that all employers maintain updated job descriptions so there will be a point of reference if any issues arise as to what the essential functions of a job position are for accommodation purposes. Moreover, just like employee handbooks, if you do not have job descriptions today, the beginning of the upcoming year is a good time to commence preparing them.
  3. Are your employee leave policies up to date?  It is important under both federal and state leave laws that leave policies are accurate and current. One of the most effective ways of meeting this requirement is having updated leave policies in an employee handbook, so use the beginning of next year to check that such policies are accurate and up to date. 
  4. When was the last time you conducted an audit of your payroll practices?  One of the chief concerns to examine here is ensuring that all your employees are properly classified as exempt versus non-exempt employees for purposes of their proper compensation under federal and state wage and hour laws. It is always a good idea for an employer to do a quick review of employment classifications each year in case changes need to be made based upon any modifications in employee job responsibilities. Also, as part of such an audit, make sure that you are paying your employees correctly. If eligible for overtime, are you calculating such payments right and using the appropriate rate of pay? And how about independent contractors? If you are using them, are you meeting the stringent requirements here in New Jersey for creating those relationships to withstand legal scrutiny? Failure to follow independent contract rules can lead to significant wage and hour problems.   
  5. Are you properly performing background checks on current and prospective employees?  Remember, there are strict requirements concerning how such background checks are conducted under not only the Fair Credit Reporting Act but also under relevant federal employment discrimination laws such as Title VII. Several years ago, the Equal Employment Opportunity Commission issued a detailed compliance guidance on how the results of a background check can be utilized in assessing a person’s suitability for employment, and New Jersey also passed its own restrictions, i.e. Ban the Box rules, so it is important that all background check policies meet these requirements. 

In sum, the upcoming new year provides a wonderful opportunity for employers to proactively evaluate internal policies and procedures to make 2023 a legally problem free year in your workplace. Take advantage of the opportunity so your business will not be singing the blues in 2023!

Beware Child Labor Laws

An often overlooked area of labor and employment law are child labor laws. Such laws exist at both the federal and state level. And they are indeed enforced at each of those levels of government. For example, I am currently involved in a federal labor wage and hour audit and one item requested by the investigator was all documents reflecting the client’s hiring of minors. Most of us are familiar with these types of documents that were requested in my audit, i.e. working papers that a minor needs to be employed. But did you know that there are other restrictions under Federal and New Jersey law that go along with hiring minors, such as limits on the number of hours that the minor can work and that you must give minors a certain number of break periods per shift? For the Chipotle restaurant chain, it recently learned the hard way about these requirements, to the tune of a $7.75 million dollar fine paid to the New Jersey Department of Labor (“NJDOL”) for violating these New Jersey child labor law requirements that apply whenever an employer employs any minor worker who is under the age of Eighteen (18) years old.

The NJDOL led the investigation against Chipotle and collaborated with the Affirmative Civil Rights and Labor Enforcement Section of the Department of Public Safety’s Division of Law. The audit covered violations cited at four Chipotle locations—Fort Lee, Bloomfield, Mays Landing and Parsippany—between 2016 and 2018. New Jersey is not the only state that had uncovered child labor violations by the franchise. In Massachusetts, Chipotle agreed to pay $1.4 million in restitution and penalties for child labor violations at 50 locations within that state. Employers should be aware: the NJDOL often investigates companies when the agency learns that other governmental agencies have investigated and fined a company. This is frequently the source for why companies get audited in New Jersey.

The violations alleged against Chipotle included its failure to abide by legally set limits on the number of hours minors are allowed to work and the failure to provide both timely and sufficient meal breaks for its minor employees. Along with paying the hefty fine previously mentioned above, Chipotle also signed an agreement to develop and implement measures for monitoring future child labor law compliance. Specifically, Chipotle agreed to a long-term strategy to ensure the franchise’s future compliance with New Jersey state law, including periodic self-audits, designing a child labor compliance manual, and mandatory training for all current and future managers, supervisors, and staff members. The company also agreed to other various conditions to foster a safe working environment that is both lawful and rewarding to minor employees.

So what is the moral of this story?  Child labor law compliance does not just stop at obtaining working papers for your minor employees. Remember that child labor laws in New Jersey specify the number of hours minors may work depending on both their age and whether it is summer or if school is in session. Failing to comply with these requirements can be costly for your business. Just ask Chipotle about that. 

So, What Exactly is FMLA Interference?

Most employers today know what the Family and Medical Leave Act (“FMLA”) requires, i.e. job protected leave for employees working for employers with 50 or more employees. But most employers know very little about what the law prohibits, namely both interference with and protection against retaliation when an employee exercises FMLA rights. As part of my practice, a client recently posed a very interesting question about possible FMLA interference: when an employee is out on FMLA leave, can the employer require an employee to periodically check in to update the employer on their medical status or does having that sort of interaction with the employee constitute wrongful FMLA interference? The answer to this question, like many in this area of the law, requires an employer to proceed with some caution.

Legally, an employee on FMLA leave is neither entitled to be “left alone,” nor is completely relieved from responding to an employer’s discrete inquiries. Fielding occasional calls about one’s job while on leave is deemed a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights. When limited to the scope of passing on institutional knowledge to new staff, or providing closure on completed assignments, or even giving a quick update on the employee’s on-going medical status, employers do not violate the FMLA by making such calls or expecting employees to keep them updated on such topics. Moreover, if the employer has designated call in procedures or policies that an employee must follow while on FMLA, the employee is expected to follow them if they do not conflict with the leave rights granted under the FMLA. A big legal “no-no,” however, is assigning any work to or expecting that the employee will perform any job services while on leave. That is a sure invitation for an interference claim.

While contacts with an employee are allowed while on FMLA, the real legal difficulty is that there is no legal standard or consensus on the amount of potential contacts an employer can have with an employee while out on FMLA leave. The cases talk about “de minimis” contacts not interfering with FMLA use without stating how many of those kinds of contacts can happen. So, what exactly is a sufficiently small enough number to not get the employer into trouble? Over 12 weeks of leave, once a month would seem fine, especially if the employer has a valid reason for the contact, such as a quick question about a work file or confirming an expected return to work date. More than that would likely depend on the presenting circumstances for the required contact. In this area, when all is said and done, seemingly less is better-the fewer times you need to speak to your employee, the better.

Therefore, based upon the foregoing, employees who need to reach out to an employee on FMLA leave are best served by doing so only sparingly and when the contact is supported by a legitimate business reason. And, most importantly, do not demand that an employee perform any sort of work during their FMLA time. Even when the employee volunteers to do so, it is best for the employer to say no to ensure that there is no chance of any misunderstanding by the employee that working on FMLA leave is an expectation of the employer.  

Beware the Job Interview!

Just a few weeks ago, I did a training on an often overlooked dangerous legal area for employers: the job interview. One of the things that I harped on repeatedly during my talk was how participants in the interview process must know what is (and is not) legally appropriate. A recent case here in New Jersey illustrates my frequently stated concerns about this neglected subject that should make all employers beware of job interviews!

On April 13, 2022, a jury in a New Jersey Superior Court matter, Corbin v. American Home Crafters Remodeling, awarded a Plaintiff $31,600 in damages in a Law Against Discrimination (“LAD”) case for what can be rightly classified as her experiencing the “job interview from hell.” During that interview, a seemingly inebriated employee of Defendant made numerous improper statements about Plaintiff, ranging from odd comments about her high-heeled shoes to questioning whether her teenager children had been breast fed.  After Plaintiff was offered the job of administrative assistant, Plaintiff was handed a glass of whiskey to celebrate her hiring, which she drank and was then offered a second one. During that time, Plaintiff’s interviewer then began making numerous vulgar comments requesting that Plaintiff have sex with him. Prompted by concerns regarding the interviewer’s behavior the Plaintiff left.

Thereafter, the interviewer attempted multiple times to contact Plaintiff and convince her to not report his loathsome behavior. After speaking to Plaintiff’s husband and learning that Plaintiff had already filed a police report concerning his conduct, the interviewer emailed Plaintiff and rescinded the job offer stating that Plaintiff was not a “good fit for the job.”

In bringing her lawsuit, the Plaintiff alleged that the interviewer’s conduct was in violation of the LAD’s prohibitions regarding sexual harassment and retaliation. During the course of the trial, the entire interview was played to the jury because it had been videotaped on a company surveillance camera. 

In defense of the claim, the Defendant argued that since Plaintiff was not an employee, she could not be harassed in a job interview. The jury ultimately rejected this defense, and awarded both $8,400 in economic damages and $22,000 in emotional distress damages. Along with those significant damages, the court eventually awarded a whopping $138,190 in legal fees under the fee shifting section of the LAD that requires the reimbursement of a prevailing party’s legal fees. Ouch!

An extreme case example? Maybe? But it illustrates why employers must pay attention to this overlooked area where employers must ensure that they abide by legal rules that restrict what can and should not be done during a job interview. And the best way to eliminate these types of cases from occurring is training your employees on how to conduct job interviews. While a simple question asking a female candidate whether she has any children seems innocuous, it isn’t.  It could be construed by the candidate as a reflection of possible gender bias against her employment candidacy. There are numerous other similar questions like these that can seem harmless but in fact could be the precursor for potential legal action against both the employer and the interviewer. These kinds of traps for the unwary must be addressed by employers as part of regular training for all employees involved in the interview process so that you and your company can avoid a similar “interview from hell” scenario that can cost you hundreds of thousands of dollars in having to defend against a possible lawsuit like this one.

So, start paying attention to how your employees do job interviews, and educate them now on the Do’s and Don’ts of the process to minimize your potential for future legal problems in this often ignored area of employment law.              

New Jersey Enacts Stringent Employer Monitoring Device Law

On April 19, 2022, a new law went into effect in New Jersey that is designed to further protect employee privacy in the workplace. Under the new law, employers cannot utilize tracking or electronic communications devices in any vehicle used by an employee unless they first provide written notice to the employee. There are exceptions to this new law. Significantly, nothing in this law is meant to supersede regulations regarding interstate commerce, including but not limited to the usage of electronic communications devices as mandated by the Federal Motor Carrier Safety Administration, so if such regulations are applicable to your company, these new requirements do not apply. If not, employers need to revisit their policies to ensure that written notice of monitoring is provided to affected employees under the new law and is well-documented.  

The new law applies to employers, their agents, representatives and designees, but excludes public employers and public transportation systems (including chartered or scheduled bus transportation, whether operated by a public or private company). The law specifically defines electronic communications devices as any device that uses electronic signals to create, transmit and receive information, including a computer, telephone, personal digital assistant or other similar devices. Similarly, a tracking device is defined as an electronic or mechanical device that permits the tracking of the movement of a vehicle, person or device.

There are a number of potential remedies available for violations of the law. Penalties for violations of the new law can add up quite quickly, with a $1,000 civil penalty for the first violation and up to $2,500 for each subsequent violation. Failure to comply with these new legal requirements could also be considered a fourth-degree crime, punishable by a fine, imprisonment or both.

If you are an employer who monitors your employees in vehicles through any type of tracking or communication device, and are not exempted under the law, you must immediately provide your employees with written notice of your tracking activities. It is also strongly suggested that you also get individual written receipt acknowledgements from all employees receiving the notice so there is no dispute over whether notice was in fact provided. The time is now to bring your policies into compliance with this new legal requirement.      

Congress Passes Groundbreaking Bill Restricting Mandatory Arbitration in Sexual Harassment Cases

A few weeks ago, Congress passed a groundbreaking bipartisan bill that greatly restricts when employers can enforce pre-dispute arbitration agreements regarding workplace sexual assault and harassment claims. The bill is expected to be signed into law by President Biden in the very near future.

Inspired by the #MeToo movement, The Ending Forced Arbitration of Sexual Assault Act of 2021 amends the Federal Arbitration Act (“FAA”) by allowing an employee alleging sexual assault or sexual harassment to invalidate a pre-dispute arbitration agreement or joint-action waiver. What this means is that if an employee previously signed an agreement to arbitrate employment-related claims and later is a victim of alleged sexual assault or harassment, the employee can reject the arbitration agreement and decide to pursue his or her claims in court. Similarly, where an employee agreed to pursue claims in an individual capacity only, and not through a class action, the employee may also ignore that agreement as well and pursue such claims on a joint basis with other alleged victims.

Under this bill, while employees are given the option to negate a prior agreement, those signing such a pre-dispute arbitration or joint-action waiver agreement may nevertheless still opt to arbitrate such claims if they so choose. But, now, significantly that decision rests exclusively with the employee. The legislation also explicitly requires that courts, not arbitrators, decide whether this arbitration preclusion law applies to a given claim, regardless of whether the agreement itself vests that authority with the arbitrator, further showing a preference for court involvement in deciding such disputed preliminary jurisdictional issues.

In terms of its legal scope, the bill covers all claims of sexual assault or harassment, whether they arise under federal, state, local, or tribal law. “Sexual assault” is defined as a nonconsensual sexual act or sexual contact, as such terms are defined in Section 2246 of Title 18 (the U.S. criminal code) or similar applicable Tribal or State law, including when the victim lacks capacity to consent. “Sexual harassment” is defined as “conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law”—meaning that this covers anything that would qualify as sexual harassment under Title VII of the Civil Rights Act of 1964 (“Title VII”), and in New Jersey, conduct that would qualify as sexual harassment under the New Jersey Law Against Discrimination (“LAD”).

One positive for employers is that the bill explicitly states that it does not apply retroactively, and only applies “to any dispute or claim that arises or accrues on or after the date of enactment.”  Given the broad scope of this bill’s coverage, it will still likely invalidate pre-dispute agreements entered into prior to its enactment. Moreover, given some of the vague terms included in the bill, it will also be interesting seeing how courts will interpret those terms and whether any procedural rules will be adopted for how an employee is to invoke these negation of agreement rights. Moving forward, now is the time for employers to start reviewing and immediately evaluating their employee agreements to determine the impact of this expected new law and how it will affect what the employer may be able do in defending future sexual harassment and sexual assault cases.  This current revision to the scope of mandated arbitration may just be the start of other future legal changes in this area. In a Statement of Administration Policy issued on February 1, 2022, White House officials indicated that this bill could be a precursor for addressing forced arbitration of other employment claims “including arbitration of claims regarding discrimination on the basis of race, wage theft, and unfair labor practices.” So, employers should continue to monitor this hot topic to assess whether further legislative measures are potentially down the road to effectuate changes in forced arbitration of those claims as well.

OSHA-What’s Next On COVID-19 Vaccinations?

We all know that thanks to the United States Supreme Court’s recent decision invalidating the COVID-19 vaccination mandate for large employers previously issued by the Occupational Health and Safety Administration (“OSHA”) that employers with 100 or more employees no longer need to require employee vaccinations. But what is next for OSHA in this area in addressing COVID-19 workplace issues?

For one thing, OSHA has not completely given up on having a vaccination mandate. The agency is still contemplating issuing such a requirement through its usual rulemaking process. This time around, OSHA tried to short-circuit that process by using its emergency rulemaking authority that allows it to avoid the usual lengthy rulemaking process for significant workplace hazards that require immediate attention. But would that prove more successful and pass legal scrutiny? Hard to tell, but the Supreme Court decision poses a tough obstacle since the majority of the Court concluded that Congress did not grant OSHA authority to issue broad requirements to address issues that are more akin to public health matters and not direct workplace hazards.

Another available tactic for OSHA left open by the court’s decision is to issue a vaccination mandate limited to very specific industries where COVID-19 could clearly be shown to pose more of a particular workplace threat, such as where employees work closely in proximity to one another, such as factory and industrial settings. We know meatpacking plants were a festering ground for COVID-19 infections. One could see OSHA issuing rules there in such industries to increase employee vaccination rates. This is one possible area where even the Court’s decision itself recognized OSHA’s authority to act, so maybe the agency moves forward to accept that invitation to regulate workplaces there.

Finally, OSHA still has its investigatory authority to indirectly force employers to increase steps in the workplace to promote safety, including maybe even possible vaccinations. The OSHA law’s General Duties Clause requires employers to provide a safe workplace for its employees, and OSHA could invoke this legal duty to expect employers to actively promote workplace COVID-19 safety by taking steps such as requiring masks, testing, and even vaccination requirements given the particular workplace circumstances. By crafting specific requirements for particular workplaces, OSHA could claim that it is meeting the Court’s directive of tailoring specific relief to the precise workplace and not blanketly regulating a general public health issue.

So, the moral of this story is stay tuned. The pandemic isn’t over, and neither will be OSHA’s efforts to find a way to promote broader vaccination rates in the country’s workforce to facilitate greater workplace safety.

5 New Year’s Resolutions For Your Workplace In 2022

With 2022 around the corner, employers are presented with a wonderful opportunity to review internal policies/procedures and hopefully help avoid future workplace legal problems.  Here are five suggested New Year’s Workplace Resolutions for 2022.

  1. When was the last time your employee handbook was reviewed and updated? Policies and procedures need to be revised periodically to keep current with ongoing changes in the law, especially in a place like New Jersey, where it is frequently the case that new laws and decisions impose new legal requirements. Therefore, 2022 presents a great opportunity for employers to review handbook polices and bring them up to speed with any recent legal changes that impact your workplace, or to reflect changes in your workplace because of adjusting to doing business in a pandemic, i.e. work from home policies. Alternatively, if you do not have one yet, the upcoming new year provides a wonderful chance for your workplace to reap the benefit of having all relevant workplace policies stored in one collective document. Relatedly, when was the last time you conducted anti-harassment training for your workforce? While the pandemic has made this harder to do, virtual trainings are a great way to continue to meet all mandated employee training requirements.
  2. When was the last time your job descriptions were reviewed and updated? Job descriptions are very important, especially in gauging compliance with mandated accommodation requirements for persons with disabilities under both federal and state discrimination laws.  Ask yourself: do your job descriptions accurately reflect what an employee actually does in his/her job today?  Because courts often rely on how an employer defines the essential job functions of an employment position in assessing disability discrimination and failure to accommodate issues, it is important that employers maintain updated job descriptions so there will be a point of reference if any issues arise as to what the essential functions of a job position are for accommodation purposes. Moreover, just like employee handbooks, if you do not have job descriptions today, the beginning of the upcoming year is a good time to commence preparing them.
  3. Are your employee leave policies up to date? It is important under both federal and state leave laws that leave policies are accurate and current. One of the most effective ways of meeting this requirement is having updated leave policies in an employee handbook, so use the beginning of next year to check that such policies are accurate and up to date.
  4. When was the last time you conducted an audit of your payroll practices? One of the chief concerns to examine here is ensuring that all your employees are properly classified as exempt versus non-exempt employees for purposes of their proper compensation under federal and state wage and hour laws. It is always a good idea for an employer to do a quick review of employment classifications each year in case changes need to be made based upon any modifications in employee job responsibilities.
  5. Are you properly performing background checks on current and prospective employees? Remember, there are strict requirements concerning how such background checks are conducted under not only the Fair Credit Reporting Act but also under relevant federal employment discrimination laws such as Title VII. Several years ago, the Equal Employment Opportunity Commission issued a detailed compliance guidance on how the results of a background check can be utilized in assessing a person’s suitability for employment, and New Jersey also passed its own restrictions, i.e. Ban the Box rules, so it is important that all background check policies meet these requirements.
  6. And here is a bonus suggestion for you. Mandatory COVID vaccination requirements are still in flux. The OSHA rule for companies with 100 employees is no longer stayed, and the agency has advised that it will start investigating employers for compliance on January 10, 2022. (Public federal contractor and health care mandates are still subject to court orders barring enforcement of such standards to some degree.)  This means that employers need to start taking steps to meet the requirements of the OSHA mandate-by either collecting proof of employee vaccinations or ensuring weekly testing for employees. Remember also that disability and possible religious exemptions are potentially available to vaccination requirements and employers need to understand how to address such issues.

In sum, the upcoming new year provides a wonderful opportunity for employers to proactively evaluate internal policies and procedures to make 2022 a legally problem free year in your workplace.

A Happy and Healthy New Year to All and please continue to stay safe!!

 

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

Amended NJLAD Offers Greater Protections to Older Workers

On October 5, 2021, Governor Phil Murphy signed a new law that greatly expands the protections afforded to older workers under the New Jersey Law Against Discrimination (“NJLAD”) These Amendments took effect immediately, meaning older workers are now already afforded these enhanced protections against workplace discrimination. As a result, employers today must promptly reevaluate both their hiring practices and any policies requiring that older workers retire when they reach a prescribed age.

The scope of the recent amendments is broad, and change the protections already afforded to older employees under the NJLAD in the following significant ways:

  • Repeals Section 11 of the NJLAD which allowed employers to refuse to accept for employment or to promote individuals over 70 years old. The elimination of this provision broadens employment opportunities for older individuals over 70 years of age, and as a practical matter, means that age can no longer be used as a factor in the hiring or promotion process.
  • Amends Section 5 of the NJLAD that limited the remedies applicable when an employee claimed that he/she was unlawfully forced to retire. Before this law, those employees were required to file a complaint with the Attorney General and relief was limited to reinstatement with back pay and interest. The revised provision now makes available all of the remedies provided by “any applicable law,” subjecting employers who engage in such age discrimination to greater risk of legal exposure through these enhanced remedies.
  • Eliminates the statutory provision that permitted government employers to force mandatory retirement at a certain age if the employer could show “that the retirement age bears a manifest relationship to the employment in question.” Now, government employers must continue to provide employment opportunities to older workers as long as the employees can perform their official duties and responsibilities.
  • Repeals Section 4 of the NJLAD which previously stated that “an employee who has attained 70 years of age who is serving under a contract of tenure or similar arrangement providing for tenure at a public or private institution of higher education may, at the option of the institution, be required to retire.” Under this amendment, mandatory retirement policies based on age at higher education institutions are now no longer permitted.

One question that was prominent upon the passage of these amendments   was how this new law would apply to well established mandatory retirement requirements that applied to certain categories of public employees. Significantly, the new law does not change the mandatory requirement age of 70 for State court judges at any level or for police and fire departments.

In light of these recent changes, employers should review all relevant employment policies to ensure that those policies remain consistent with these new legal requirements and do not run afoul of the added protections for older employees under the newly revised NJLAD.

 

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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