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Morristown New Jersey Employment Law Blog

Significant changes coming to New Jersey employment law

As regular readers of our employment law blog know, we try to keep readers apprised of developments in federal and state employment laws and policies. New Jersey recently enacted an omnibus law that all employers should be aware of. The measure expands employee benefits in several key areas, including unpaid family leave, temporary paid family leave insurance and domestic or sexual violence safety leave.

Our state’s already generous worker protections and entitlements were significantly expanded by the legislation. The goalposts were moved in several key laws, including the New Jersey Family Leave Act (NJFLA), the Security and Financial Empowerment Act (SAFE Act) and the New Jersey Temporary Disability Benefits Act (TDB).

CR-Law Legal Alert

Alert: On March 18, 2019, Governor Murphy signed into law Senate Bill No. 121, which will dramatically and prospectively alter the landscape on arbitration and settlements of claims based on discrimination, retaliation and harassment. The law takes effect immediately. Specifically, the new law provides:

  • Non-disclosure provisions in settlement agreements of claims of discrimination, retaliation or harassment are unenforceable. A provision in any employment contract or settlement agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment is against public policy and is unenforceable against an employee who is a party to such agreement. If the employee publicly reveals sufficient details of the claim so that employer is reasonably identifiable, then the provision is also unenforceable. In short, an employee can demand confidentiality. But an employer cannot. Regardless, it's now against public policy.

Non-compete agreements: How do they help businesses?

Non-compete agreements are indispensable tools for many New Jersey businesses. It’s often crucial for employers to keep former employees from sharing trade secrets, client information and business plans with competitors.

But a non-compete agreement can cover other activities as well, such as limiting a former worker’s ability to recruit current employees for a competing firm. The agreements can also be crafted by an experienced employment law attorney to stop former employees from using customer lists and sales leads obtained on the job to poach valued customers or potential clients.

What's the difference between business and commercial law?

If you run a business, you may have wondered if there is a difference between "business law" and "commercial law." Many people use the words "business" and "commercial" almost interchangeably. Is there a difference -- and does it affect the kind of lawyer you need?

The differences between the two areas of law are real, but the two areas overlap a great deal. For most situations you'll encounter as a business owner, the same lawyer should be able to assist you with either.

Acknowledgement is Short of Agreement to Arbitrate

Lately, it seems like a new opinion about the enforceability of arbitration provisions in New Jersey comes out every day. In a newly published Appellate Division opinion, written by the Presiding Judge of the Appellate Division, Jack Sabatino, P.J.A.D., the court held a click through arbitration agreement was unenforceable. At the outset, the Court described the case as exemplifying the "inadequate way for an employer to go about extracting employees' agreement to submit to binding arbitration for future claims and thereby waive their rights to sue the employer and seek a jury trial." The plaintiff, here, alleged religious discrimination in violation of the New Jersey LAD (stemming from a mandatory vaccination policy).

IRS has rules for proper employee classification; help available

If you aren't certain your workers are properly classified as employees or independent contractors, you're not alone. Unfortunately, the Department of Labor is keeping an eye out for companies that classify workers as contractors when they are legally employees. This is because contractors aren't entitled to employer contributions to payroll taxes, provide workers' comp, unemployment insurance and other benefits. They are also exempt from a number of protective workplace laws.

If you are found to have misclassified workers, you could owe back wages and overtime. If the DOL decides you misclassified them willfully or intentionally, you could be liable for twice the actual wages owed.

District Court of New Jersey Holds the Equal Pay Act is Not Retroactive

In a slip copy opinion authored by Judge William J. Martini, U.S.D.J., the United States District Court for the District of New Jersey held that the recently enacted New Jersey Equal Pay Act (NJEPA) does not have retroactive application. Perrotto v. Morgan Advanced Materials, PLC, 2019 WL 192903 (Jan. 15, 2019). The issue came before the court by a Motion to Dismiss, filed by Defendants. The court granted the Defendants' Motion to Dismiss without holding oral argument. This holding is important to employers as the potential damages for violation of the Equal Pay Act are the salary or wages due from the employer plus an additional equal amount as liquidated damages, as well as attorney's fees.

Plaintiff had the title Controller/Human Resources until her termination on April 5, 2018. Just three weeks later, the Diane B. Allen Equal Pay Act (codified at N.J.S.A. §34:11-56:13) was signed into law, which requires "pay equality across all protected classes." The Act became effective on July 1, 2018. Plaintiff filed this action on July 27, 2018, alleging gender discrimination under New Jersey's Law Against Discrimination and retaliatory compensation practices under the NJEPA. Her compensation claim alleged Defendants paid male employees more than female employees, for substantially similar work.

Could your noncompete agreement be a barrier for potential hires?

In today's job market, companies need every advantage they can get when it comes to hiring and retention of workers. Requiring new hires to sign restrictive covenants like noncompete agreements could be off-putting to some of the best talent in a limited pool.

Yet companies have every right to protect their investment in talent and intellectual property, and noncompete agreements are a standard part of that process. What's the best way to balance protecting the company's interest with attracting new employees with valuable experience?

Appeals court: NLRB's 'joint employment' rule was too broad

When might one company be considered a "joint employer" with another company over the same workers? It's an important question, because joint employers share liability for labor law violations.

Consider the case of a franchisor and franchisee. When could a franchisor (parent company) be held liable for labor law violations committed by its franchisee? Traditionally, franchisors have only been held responsible for franchisees' labor law violations when the franchisor has exercised direct control over significant aspects of the employment relationship, such as on hiring, pay or working conditions.

In business litigation, what is summary judgment?

When you enter into business or commercial litigation, you expect either to settle out of court or to have a trial. In some situations, however, the trial is cut short because one party files for summary judgment and a judge grants that motion. What is summary judgment?

It helps to understand that there are two basic things to be decided at any trial: the facts and the law. The facts are the "who, what, when, where and why" of the trial. For example, a judge or jury might be asked to determine who breached a particular contract, on which date, in what jurisdiction and for what purported reason. Once the facts are determined, the judge applies the law. Examples of legal questions include whether the contract was valid and whether the breaching party's reasons excuse their conduct.

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