1. Employment Law Issues prepared for: SCC
prepared by: Tracy A. Armstrong, Esq.
December 4, 2018

2. ISSUES
Ignorance is Not Bliss Sick Days Sexual Harassment Unemployment Equal Pay Act Still to Come

3. Ignorance is Not Bliss Statute Description/Specifications
Conscientious Employee Protection Act (“CEPA”)
In addition to posting the notice,  employers with 10 or more employees must distribute the notice annually to all employees. (English and Spanish)
Gender-Equality Notice
Every employer in New Jersey with 50 or more employees must post a notice advising employees of their right to be free from gender inequity or bias in pay, compensation, benefits, or other terms or conditions of employment under the NJLAD (defined below) and other state and federal antidiscrimination statutes. Employers are also required to distribute a copy of the notice: (i) in English, Spanish, and any other language spoken by 10 percent of the workforce, provided that a notice has been issued in that language by the NJDOL; (ii) at the time of an employee’s hiring; (iii) to all employees annually; and (iv) at any time upon the request of an employee. The notice may be transmitted electronically to employees via or a website, so long as it is accessible and the employer notifies its employees that the notice has been posted electronically. The law also requires employers to obtain acknowledgements from employees that they have read and understand the notice.
Law Against Discrimination (“NJLAD”)
Notices must advise employees of their rights under the NJLAD. Although not required, many employers distribute their company’s nondiscrimination and anti-harassment policy to employees annually and/or at anti-harassment training sessions.
New Jersey Family Insurance Law
In addition to posting, employers must provide employees with a written copy of the notification: (i) at the time of an employee’s hiring, (ii) whenever an employee provides notice of a potential claim, and (iii) upon the first request of an employee. Written notification may be electronically transmitted to employees.
New Jersey Family Leave Act
Employers with 50 or more employees, whether or not they have any eligible employees, must display the official Family Leave Act poster.
New Jersey Security and Financial Empowerment Act (“SAFE”)
The SAFE Act applies to New Jersey employers with 25 or more employees. The notice must make employees aware of their rights under New Jersey’s SAFE Act, which provides job-protected leave for victims of domestic violence and sexual assault.  Employers must “conspicuously display” a notice of employees’ rights under the law and “use other appropriate means to keep employees informed.”

4. Ignorance is Not Bliss (con’t)
Statute
Description/Specifications
New Jersey Wage Payment
Posters must advise employees of the law relating to the payment of wages, minimum hourly rates, overtime rates, acceptable deductions from wages, employee rights, and employer penalties.
New Jersey Wage, Benefit and Tax Laws
The posting must inform employees of reporting and recordkeeping requirements of eight New Jersey statutes. Additionally, employers must provide all employees with a written copy of the notification and a copy to each new employee at the time of hiring.
Unemployment and Temporary Disability Benefits
Employers covered by the law must advise of benefits available to qualifying employees under disability insurance and unemployment compensation. (English and Spanish)
Workers’ Compensation Law
Employers must inform employees of benefits available to workers injured on the job and information on the procedure for filing workers’ compensation claims. (English and Spanish)
Smoke-Free Work Place Notice
A person (including a business) that has control over an indoor public or work space must prominently post, at every entrance, a sign stating that smoking is prohibited. The lettering or nonsmoking symbol must be in a contrasting color from the sign's background, and the sign must advise that violators will be subject to a fine.
New Jersey Child Labor Laws
Employers that employ individuals under the age of 18 must conspicuously post a printed abstract of the New Jersey Child Labor Laws and a list of prohibited occupations as well as a schedule of hours containing the: (i) names of minors under 18, (ii) schedule of hours, (iii) maximum daily and weekly hours, (iv) daily time record, and (v) daily meal times.

5. Ignorance is Not Bliss FEDERAL LAW POSTERS SPECIFICATIONS
Job Safety and Health Protection (OSHA)
Private employers engaged in a business affecting commerce. Does not apply to federal, state or political subdivisions of states. -
Equal Employment Opportunity (EEO)
Post copies of the poster in conspicuous places available to employees, applicants for employment, and representatives of labor organizations with which there is a collective bargaining agreement.
Fair Labor Standards Act (FLSA)
Every private, federal, state and local government employer employing any employee subject to the Fair Labor Standards Act.
Employee Right for Workers with Disabilities/Special Minimum Wage Poster
Every employer having workers employed under special minimum wage certificates authorized by section 14(c) of the Fair Labor Standards Act. Where an employer finds it inappropriate to post such a notice, the employer may provide the poster directly to all employees subject to its terms.
Family and Medical Leave Act (FMLA)
Public agencies (including state, local, and federal employers), public and private elementary and secondary schools, as well as private sector employers who employ 50 or more employees in 20 or more work weeks and who are engaged in commerce or in any industry or activity affecting commerce, including joint employers and successors of covered employers within a seventy-five (75) mile radius.  Where an employer's workforce is not proficient in English, the employer must provide the notice in the language the employee speaks. The poster must be posted prominently where it can be readily seen by employees and applicants for employment.
Uniformed Services Employment and Reemployment Rights Act (USERRA)
The full text of the notice must be provided by each employer to persons entitled to rights and benefits under USERRA.  Employers may provide the notice by posting it where employee notices are customarily placed. However, employers are free to provide the notice in other ways that will minimize costs while ensuring that the full text of the notice is provided (e.g., by distributing the notice by direct handling, mailing, or via electronic mail).
Employee Polygraph Protection Act (EPPA)
Any employer engaged in or affecting commerce or in the production of goods for commerce. Does not apply to federal, state and local governments, or to circumstances covered by the national defense and security exemption. The Act extends to all employees or prospective employees regardless of their citizenship status. Foreign corporations operating in the United States must comply or will result in penalties for failing to post. The poster must be displayed where employees and applicants for employment can readily observe it.

6. Ignorance is Not Bliss
Please note that if you have remote location with more than one employee, you must provide them with the required posters/notices. The requirement to post notices at the home of a single remote worker has not yet been added. However, it is my suggestion that all employees have access to an electronic version of the federal (and relevant state) posters/notices, thereby creating a “good faith” effort to inform remote employees. Moreover, you should note that if you participate in E-Verify, you must display the E-verify poster ( and the Right to Work poster ( This poster must be displayed in all languages spoken at the workplace (there are 10 versions available on the USCIS website). Regarding the ACA, there are forms that should be handed to new employees (however, currently, there is no penalty for failing to do so). There is a form for employers that offer coverage and a form for employers that do not offer coverage: Also, employees (and their spouses) who elect health insurance should receive an “General COBRA notice”. The COBRA “General Notice,” often referred to as the “New Hire Notice,” outlines the Qualifying Events under which a beneficiary could lose coverage and their obligations regarding same. The General Notice must be provided to covered employees (and spouses) within 90 days from the date that the employee or spouse becomes covered under the plan. There are some key items that are required as part of the General Notice: *Name of the plan and contact information *General description of the plan’s COBRA provisions *Explanation of the Qualified Beneficiaries responsibility for notifying the plan administrator of the Qualifying Event *Information regarding the importance to keep updated contact information for Qualified Beneficiaries on record with the plan administrator *Verbiage that more information regarding your COBRA rights can be found in the SPD. This is not inclusive of every document that must be provided to a new employee (for example, not discussed is the I-9 or other tax documents).

7. Sick Days (Time Off) Job Paying Statutes Job Holding Statutes
Worker’s Compensation
Disability
Family Leave Insurance
NJ Paid Sick Leave
Job Holding Statutes
Family and Medical Leave Act (joint or integrated employers)
Family Leave Act
Reasonable Accommodation (Americans with Disabilities Act and Law Against Discrimination) and Undue Hardship
Security and financial Empowerment Act
Other Statutory Leaves
Emergency Responders
Jury Duty

8. Paid Sick Leave for all! Paid Sick Leave Act:
Amount of Leave: During a twelve (12) month period, an employee may accrue up to 40 hours of paid sick leave at a rate of one hour for every 30 hours worked. Alternatively, at the beginning of the twelve (12) month period, a business may simply provide 40 hours of paid sick time or utilize a paid-time-off (PTO) policy. An employer does not have to permit the accrual of more than 40 hours of paid sick leave in the twelve (12) month period. Any PTO policy must provide equal or greater benefits and accrue benefits at an equal or greater rate than the benefits provided under the Act.
Covered and Excluded Employees: Most New Jersey employees are covered by the Act. Per diem healthcare employees, construction workers employed pursuant to a collective bargaining agreement, and public employees who already have sick leave benefits are expressly excluded from the definition of “employee” under the Act.
Covered employers: All businesses

9. Paid Sick Leave for all! (con’t)
Reasons to take Leave under the Act:
Diagnosis, care, treatment of, or recovery from, a mental or physical illness, injury or other adverse health conditions, or for preventative medical care of the employee;
Caring for a family member during diagnosis, care, treatment of, or recovery from, a mental or physical illness, injury or other adverse health conditions, or for preventative medical care of the employee’s family member;
Absence(s) necessary due to the employee or employee’s family member being a victim of domestic or sexual violence, if the earned sick leave is used for: medical attention needed to recover from physical or psychological injury or disability caused by domestic or sexual violence; services from a designated domestic violence agency or other victim services organization; psychological or other counseling; relocation; other legal services, including obtaining a restraining order or preparing for, or participating in, any civil or criminal legal proceeding related to the domestic violence or sexual violence;
Time needed after the closure of the employee’s workplace or the school/place of care of the employee’s child by order of a public official or other public health emergency, or if a public health authority issues a determination that the presence of the employee or their family member would jeopardize the health of others;
Attending a school-related function of the employee's child requested or required by the school responsible for the child’s education, or attending a meeting concerning the care provided to the child in connection with the child’s health conditions or disability;
(Please note, the definition of “family member” includes any individual “whose close association with the employee is the equivalent of a family relationship.”).

10. Paid Sick Leave for all! (con’t)
The amount of leave that is utilized must be documented. This documentation must be maintained for five (5) years.
Employee Notice and Documentation: Under the Act, employers may require advance notice of foreseeable absences, but not more than seven (7) days. employers can also prohibit the use of “foreseeable” paid sick leave benefits on certain dates, as well as require documentation if unforeseeable sick leave is used on those dates. If an employee is absent for at least three consecutive days, the business may request documentation to confirm the employee used the sick leave benefits for a purpose permitted under the Act.
Carryover: An employee may carry over, up to forty (40) hours of accrued, but unused paid sick leave benefits. the Act also does not require an employer to pay out an employee’s earned, but unused sick leave upon separation from employment, unless there is a policy to the contrary.
Notification: Businesses must post a notification in the workplace regarding paid sick leave and provide each individual employee a copy of the notification within 30 days after issue by the Department of Labor. Notice is thereafter provided at the time of hiring or upon request by an employee.
Enforcement: The Act provides for a private right of action that includes, among other remedies, liquidated damages in an amount equal to twice the actual damages sustained by the employee filing the claim.
No retaliation: Like most employment laws, the Act contains an anti-retaliation provision that sets forth a “rebuttable presumption” of unlawful retaliation if adverse action is taken against an employee within 90 days of specified protected activity (filing a complaint, cooperating in an investigation, informing others of their rights under the ACT).

11. (Not Just) Sexual Harassment
“We are family”
“Joking”
Third Party
Have a Policy
Conduct Training (New York)
Receive a Complaint = Conduct an Investigation
Take appropriate remedial action
No Retaliation

12. Unemployment Misconduct Simple – disqualified that week +5
Gross – have to return to work for 8+ weeks, earn 10x the weekly benefit rate and become unemployed through no fault of their own

13. New Jersey’s own Equal Pay Act
New Jersey Equal Pay Act:
The NJLAD already prohibits discrimination against employees on the basis of membership in a protected class and prohibits retaliation against employees who complain about said discrimination, but this new law expands those protections. The Equal Pay Act prohibits employers from paying different compensation to protected class employees who perform substantially similar work when viewed “as a composite of skill, effort and responsibility.” compensation is defined as wages, benefits or other compensation, and any comparison of wage rates must be based on the wage rates in all of an employer’s operations or facilities.
An employer must first determine which types of positions it has that are similar in skill level, effort required and responsibility.
Then, the employer must analyze whether members of a particular protected group tend to be employed in each type of position.
Finally, an employer must compare the pay of each type of position to examine any pay differential that could be viewed as discriminatorily based upon an employees’ protected class membership.
In an inappropriate differential is discovered, en employer must determine how to remedy the pay disparity, so as not to violate the NJLAD. employers should not that lowering the wage rate of the higher paid group is not an option under the Equal Pay Amendment.

14. NJ’s own Equal Pay Act (con’t)
There are noteworthy exceptions to the broad prohibition against equal pay discrimination. If an employer can show that it has a seniority or merit system on which pay distinctions are based, there may not be an equal pay violation. In addition, if an employer can show any of the following, it will not be held liable for equal pay discrimination:
That the differential is based on one or more legitimate, bona fide factors other than the characteristics of the members of the protected class, such as training, education, or experience or the quantity or quality of work production;
That the factor or factors are not based on, and do not perpetuate differential compensation based on gender or any other characteristics of members of a protected class;
That each of the factors is applied reasonably;
That one or more of the factors account for the entire wage differential and not just part of the wage differential.
That the factors are job-related with respect to the position in question and based on a legitimate business necessity.

15. NJ’s own Equal Pay Act (con’t)
The Equal Pay act also increased the statue of limitations to six (6) years and the amount of damages available to employees for this type of violation. An employee can be awarded treble damages if there is proof the employer retaliated against him or her for requesting, discussing or disclosing to any other employee, any information regarding employee compensation. Therefore, under the Equal Pay Act, an employer cannot prohibit its employees from comparing salaries (this was already prohibited under the NLRA). Likewise, an employer cannot prohibit an employee from discussing with a lawyer, from whom the employee seeks legal advice, or from any government agency, any information regarding employee compensation.

16. Still To Come
Restrictions on Arbitration Agreements and Salary History Prohibitions
Confidentiality Provision Prohibition
Legalizing Marijuana

17. Wilentz, Goldman & Spitzer, P.A. 90 Woodbridge Center Drive
Tracy Armstrong, Esq.
Wilentz, Goldman & Spitzer, P.A.
90 Woodbridge Center Drive
Woodbridge, NJ T: E:
Employer’s Legal Resource:

18. Tracy Armstrong, Esq. Shareholder, Wilentz, Goldman & Spitzer, P.A.|
Tracy Armstrong is a member of the Employment Law team at Wilentz. She has over 25 years’ experience representing employers across industry sectors in all aspects of federal and state labor and employment law.
An experienced litigator, Ms. Armstrong brings strategic insight to both the legal and commercial ramifications of complex and dynamic employment law concerns involving: the New Jersey Law Against Discrimination (LAD), the Conscientious Employee Protection Act (CEPA), the Fair Labor Standards Act (FLSA), New Jersey Wage Payment laws, the Family Medical Leave Act (FMLA), the New Jersey Family Leave Act (NJFLA), the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA) and other employment laws and regulations. Her extensive experience appearing before regulatory boards (such as the Wage and Hour Board and Department of Unemployment) informs her understanding and her approach as a trusted legal advisor to her clients, helping them navigate compliance with all applicable laws.
Ms. Armstrong defends employers against claims and helps businesses of all sizes in New Jersey, and elsewhere, to proactively and appropriately address employment law concerns. She has experience and particular proficiency in the following: employee handbooks, anti-harassment and EEO policies, employment contracts, non-compete agreements and restrictive covenants and confidentiality agreements. Ms. Armstrong also guides her clients thorough the often sensitive and potentially challenging matters of termination and severance.
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