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Highlighting 2013 and Looking Ahead to 2014 for New Jersey Employers

NewYearSparkler2014

Happy New Year! As New Jersey employers ready themselves for the coming year, we’re taking a quick look back on 2013 and then looking ahead to some potential developments employers should keep an eye on throughout 2014.

In 2013, a variety of new laws were passed affecting New Jersey employers.  Governor Christie signed into law an amendment to the New Jersey Law Against Discrimination that formally allowed employees the right to freely discuss their compensation and benefits. We discussed this legislation earlier in our blog (here).  In short, the new law prohibits employers from retaliating against employees who seek out this type of information from others for the purpose of investigating potential discriminatory pay inequity.  Another significant law that went into effect in 2013 was NJ SAFE Act (which we discussed on our blog here and here).  This law expands employee leave rights, requiring covered employers to allow an unpaid leave for New Jersey employees who are victims of domestic violence or sexually violent offenses. And, most recently, New Jersey joined several other states that have increased their minimum wage requirements for 2014, a development we discussed here.  The minimum wage will increase to $8.25 per hour in New Jersey.  Employers with operations outside of New Jersey should also be aware of minimum wage changes for 2014 in other states mandating increases, including Arizona, California, Colorado, Connecticut, Florida, New York, and Ohio.

Looking ahead to 2014, there should be no shortage of workplace developments for New Jersey employers to keep an eye on.  Still pending at the time of this writing is Assembly Bill 4125, which would mandate paid sick leave in New Jersey.  We first discussed this bill here.  The bill provides for paid leave under defined circumstances: (1)  Time needed for diagnosis, care, or treatment of, or recovery from, an employee’s mental or physical illness, injury or other adverse health condition, or for preventive medical care for the employee; (2)   Time needed for the employee to aid or care for a family member of the employee during diagnosis, care, or treatment of, or recovery from, the family member’s mental or physical illness, injury or other adverse health condition, or during preventive medical care for the family member; (3) Absence necessary due to certain circumstances resulting from the employee, or a family member of the employee, being a victim of domestic violence; or (4) Time during which the employee is not able to work because of a closure of the employee’s workplace, or the school or place of care of a child of the employee, by order of a public official due to an epidemic or other public health emergency, or because of the issuance by a public health authority of a determination that the presence in the community of the employee, or a member of the employee’s family in need of care by the employee, would jeopardize the health of others.  While there has been no movement on this bill, employers should remain mindful of the potential expansion of employer obligations should this bill become law.  Employers also must be mindful of local ordinances that may mandate paid sick leave, such as an ordinance to become effective in Jersey City, New Jersey on January 24, 2014.

In addition, effective December 1, 2013, New Jersey’s version of a social media privacy law was enacted.  In 2014, the effects of this law will become increasingly apparent for employers who are now prohibited from requiring current or prospective employees to disclose their login/password information for their personal social media accounts or from otherwise requiring employees or applicants to allow employers access to those accounts.  Employers who may have imposed such social media access requirements over the past few years will need to bring their practices in line with this new law.

Another pending law that employers should watch is the “Healthy Workplace Act” (S333/A3249), which is essentially New Jersey’s workplace anti-bullying legislation.  As currently drafted, this bill makes it an unlawful employment practice for an employer to subject an employee to “abusive conduct” or to permit an “abusive work environment” or for “an employer to retaliate in any manner against an employee because he has brought an action under [the law], or because he has made a charge, testified, assisted or participated in any manner in an investigation or proceeding under this [law].”  “Abusive conduct” is defined in the bill as “the malicious conduct of an employer or employee in the workplace that a reasonable person would find hostile, offensive or unrelated to an employer’s legitimate business interest.  Abusive conduct may include, but is not limited to, repeated infliction of verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating; or the gratuitous sabotage or undermining of a person’s work performance.”  Unlike the New Jersey Law Against Discrimination, employees would not need to be a member of a defined protected class to be covered by the provisions of this proposed law.  Instead, the language of this bill is drafted broadly to cover all employees and, therefore, its potential effect on employer obligations to regulate employee conduct would be sweeping.  To date, this bill has not been moved forward in the Legislature.  However, employers may want to be proactive in addressing these apparent legislative concerns by establishing a policy prohibiting workplace bullying and an accompanying no retaliation policy.  Whether or not employers choose to do so, it is essential for employers to stay informed about the status of this legislation that could significantly impact their operations.

Finally, employers should soon know whether the New Jersey Law Against Discrimination will be amended once again to add another protected class by adding a provision prohibiting pregnancy discrimination.  This proposed measure (A4486/S2995) is awaiting action by Governor Christie after having been passed by the New Jersey Senate and Assembly.  This amendment would expand the existing comprehensive statute that currently prohibits discrimination against employees on the basis of their race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer. However, the bill makes clear that an employer can be excused from compliance if it is able to demonstrate that it would cause the business an “undue hardship.”  If this bill is signed into law, employers will need to insure that their employee handbooks and policies reflect the new amendment and that their Human Resources personnel, managers, and supervisors receive training on the provisions of the new law so that it is appropriately applied in the workplace.