New Jersey’s State Policy Prohibiting Discrimination in the Workplace is considered amongst many New Jersey employment lawyers as being one of the least protective of employee rights in the entire country.  Unfortunately, the newest revisions proposed by the Civil Service Commission do not provide any meaningful improvement for State employees governed under the State’s anti-harassment policy, and particularly with respect to how it conducts investigations of claims of sexual harassment.  In fact, when it comes to New Jersey’s controversial “strict confidentiality directive” policy, the proposed changes make the New Jersey’s anti-harassment policy even worse for victims of sexual harassment and discrimination.

Much has been written over the past week regarding the Civil Service Commission’s attempts to strengthen the strict confidentiality directive.  While the Civil Service Commission’s proposed revisions could worsen the penalties for breach, the current version of the strict confidentiality directive in effect continues to require incidents of sexual harassment from the public. What many of the news reports seem to have missed is the devastating impact of the current strict confidentiality policy has and continues to have on silencing victims of sexual harassment.

The current strict confidentiality directive in place expressly threatens state employees with discipline up to and including termination if the state employee exercises his or her constitutionally protected right to speak out about allegations of harassment within the state workplace. A state employee who makes a complaint of harassment or discrimination, or is requested to participate in a discrimination or harassment investigation, is required under current state regulations and practice to keep all aspects of the investigation confidential.  This means, for example, that if a state employee is the victim of sexual assault or harassment at her state job and she complains about it to the State’s EEO/AA office, she is forbidden under current regulations and practice to tell a lawyer, a co-worker or even her spouse anything about what happened.  The strict confidential directive remains in place and every state employee must abide by it or be subject to discipline.  N.J.A.C. 4A:7-3.1(j), states:

Last month New York City took action to combat an often-overlooked form of race discrimination involving employee’s hair.  In February 2019, the New York City Commission on Human Rights (the “Commission”) published new guidance that explains that employers (as well as housing providers and providers of public accommodations) can no longer institute policies or practices that discriminate against people on the basis of their natural hair texture or their choice to wear a hairstyle commonly associated with African Americans, such as an afro or dreadlocks.  According to this new guidance, the Commission views such policies and practices as violative of the New York City Human Rights Law (the “NYCHRL”), announcing that in the Commission’s view, “Black hairstyles are protected racial characteristics under the NYCHRL because they are an inherent part of Black identity.

Discrimination based on hairstyles is an issue that courts across the country have grappled with over the years, with generally employer-friendly results. Courts have been fairly consistent in finding that where a person’s hairstyle is tied to their faith, employers cannot restrict their right to express their faith through their chosen hairstyle. On the other hand, where the person’s hairstyle is tied to their cultural identity and heritage, courts have not been so kind.  For the most part, if an employer implemented a race-neutral policy banning hairstyles associated with Black people, courts have not found discrimination. Similarly, race-neutral policies restricting “unkempt” or “messy” hairstyles have generally gained approval from the courts.

For the most part, in order to prevail, a plaintiff had to show that they were specifically targeted in some way, or that the employer’s policy was not applied neutrally.  In other words, employees had to demonstrate that the employer’s defense – that the employee failed to comply with a race-neutral employee grooming policy – was pretextual and that the employer’s true motive was discriminatory.  Proving pretext can be extremely difficult, which explains why most employers have succeeded when their grooming policies have been challenged as racially discriminatory.

New Jersey employees of four different fast-food chains won a significant victory last month when it was announced that they would no longer use or enforce “no-poach” contracts or agreements to restrict their employees.  The chains – Dunkin’, Five Guys, Arby’s, and Little Caesar’s – came to formal agreements with the State of New Jersey to end the practice.  These agreements were made in the wake of an investigation into the practice, launched by the Attorneys General of 13 states, including New Jersey. New Jersey’s Attorney General Gurbir Grewal released a statement regarding the agreements, saying “I am glad that Arby’s, Little Caesar, Five Guys and Dunkin’ now recognize the unfairness of no-poach agreements and will stop using them, and I am proud of the multistate investigation that led to their change of heart.”

The particular agreements at issue here restricted fast-food employees from leaving their employment to work for a different franchise of the same fast-food company.  For example, a cashier at a Dunkin’ in New Brunswick would be restricted from working as a cashier at a Dunkin’ in Trenton.  Upon applying to the Trenton location, the prospective employee would disclose their previous employment at the New Brunswick location, causing the Trenton location to deny the employee’s application.  This can be particularly harmful when, for example, the New Brunswick cashier applies for a vacant store manager position at the Trenton location because there was no managerial position open at the New Brunswick location.  In this case, the no-poach agreement doesn’t just stifle competition, it harms the individual employee by denying them an opportunity to advance their career and increase their earning potential.

The rationale supporting these agreements, ostensibly, is a need to protect the resources expended on training the departing employee.  Without these agreements, the fast-food companies argue, franchisors would be damaged as they would not be able to recoup the investment they made in the employee.  Additionally (though this is not one of their stated rationales) these agreements provide substantial benefit to franchisors by reducing wages and depressing wage growth. By outlawing an employee from working for another franchisor, the franchisor in question insulates themselves from competing with that franchisor.  There is no concern that an employee will go to the competitor for better pay, so there is no incentive to offer better pay.  This is an insidious result of no-poach agreements, and one of the main reasons they have come under so much scrutiny in recent years.  This is closely related to the concern that no-poach agreements may also run afoul of Federal anti-trust law, as the franchisors could be viewed as colluding to fix wages.

Any woman who returns to work after a pregnancy understands how challenging it can be. For mothers who choose to breastfeed, returning to work presents an additional layer of complexity. Figuring out how, when and where to express breast milk requires the cooperation of the employer, who all too often does not understand its legal obligations to assist the mother returning to work and provide reasonable accommodations to breastfeed or express milk during work hours. Understanding your rights respecting laws to support lactating women while at work can be instrumental to continued breastfeeding success following the return to work.

In 2018, New Jersey became the 28th state to enact protections for breastfeeding mothers in the workplace. Former Governor Chris Christie signed into law protections for breastfeeding employees who wish to express milk at work. Effective January 8, 2018, the law provides protections and accommodations for employees who breastfeed and wish to pump in the workplace. The New Jersey Law Against Discrimination now specifically includes “breastfeeding” as a protected class which makes it unlawful to discriminate against an employee on the basis of her breastfeeding status.  The law also prohibits employers from retaliating against employees who they know or should know breastfeeds or who needs to express milk at work for their newborn child.

FOR IMMEDIATE RELEASE

TRENTON (March 20, 2019)–Murphy administration official Katie Brennan, who came forward about her rape last October, amended her lawsuit today in the Superior Court of New Jersey, Mercer County, against the State of New Jersey and the accused, Al Alvarez, to add a claim of defamation against Alvarez and for declaratory judgment for changes to the State’s anti-harassment policy. The amended lawsuit also alleges that confidentiality provisions in the State’s anti-harassment policy violate the Law Against Discrimination’s non-disclosure provisions that were signed into law earlier this week, and that the State has retaliated against Brennan by unilaterally closing her complaint, previously opened by the State’s Office of Equal Employment Opportunity/Affirmative Action (“EEO/AA”), in response to her lawsuit.

The amended Complaint alleges an additional claim against Alvarez in response to defamatory statements it alleges he made to the Hudson County Prosecutor’s Office, New Jersey Legislative Select Oversight Committee, media and other persons.

On March 18, 2019, Governor Murphy officially signed S-121 into law that makes any provision in an employment which waives any substantive or procedural right of an employee unenforceable as against New Jersey public policy.  Under the new law, New Jersey employers will no longer be able to conceal the underlying details of sexual harassment and other claims of discrimination through the use of non-disclosure or confidentiality provisions in settlement agreements.  The new Non-Disclosure law also protects employees from being retaliated against for not entering into any agreement or contract that requires them to waive their substantive or procedural rights.

The Non-Disclosure bill will apply to all workplace discrimination claims alleged or brought under the New Jersey Law Against Discrimination.  The New Jersey Law Against Discrimination prohibits workplace discrimination on the basis of protected traits such as gender, disability, race, national origin and other protected classes of people.  It also prohibits employers from retaliating against employees who oppose discrimination or participate in harassment investigations.  Finally, it makes employers responsible for the harm caused to employees who are forced to work in a hostile work environment.

The Non-Disclosure bill is being touted a significant win for New Jersey employees’ rights and the #MeToo movement.  The law was sponsored by Senators Loretta Weinberg and Nia Gill an Assembly members Valerie Vainieri Huttle, John F. McKeon and Jon M. Brammick.  The law will not be administered retroactively.  Instead, it will only apply to employment contracts that are entered into, renewed, modified or amended on or after the law’s March 18, 2019 effective date. This means any contract to arbitrate or settlement agreement requiring the underlying claims of lawsuit to be confidential signed before March 18, 2019 can still be enforced by an employer against an employee.

New Jersey maintains a strong public policy in protecting employees who speak out against the employer’s for engaging in unlawful business activities.  The law recognizes that employers are responsible when they try to silence and hurt persons who oppose workplace conduct or activities that endangers people in the workplace and the public at large.  However, while New Jersey law clearly provides for immense legal protections for employees against workplace retaliation, this does not mean anyone who is fired for complaining to his or her employer will be successful in a claim for wrongful termination.

New Jersey first enacted its state whistleblower law, the New Jersey’s Conscientious Employee Protection Act (“CEPA”) in 1986. CEPA is broad in scope and considered as one of the farthest reaching state whistleblower laws in the entire country. CEPA is remedial legislation and is entitled to liberal construction by our courts.

Under of New Jersey’s whistleblower law, a worker cannot be terminated for opposing or refusing to participate in unlawful or certain other improper conduct of the employer.  By placing stiff penalties upon employers who violate the whistleblower law, the New Jersey anti-retaliation statute tries to discourage employers from engaging in illegal or unethical workplace activities.  The state law applies to private and public employers and employees.  It also can apply to independent contractors in certain circumstances depending on the specific facts and circumstances of the business relationship.

The rampant abuse of arbitration agreements, and the injustice that these agreements have created for employees, is finally being recognized and addressed. The Forced Arbitration Injustice Repeal Act, or “FAIR Act,” was introduced to the United States House of Representatives by Representatives Hank Johnson and Richard Blumenthal on February 28, 2019.  The FAIR Act would, among other things, outlaw forced arbitration clauses in employment contracts or agreements.  The FAIR Act would, instead, require that the employee agree to arbitration only after the dispute has arisen in order for any arbitration agreement to be enforceable.

If passed as written, the Fair Act would not have retroactive effect as to disputes that arose prior to its passing; however, the bill would have retroactive effect in that it would apply to arbitration clauses in employment contracts that were entered into prior to the bill’s passing.  In other words, if the bill passes, all disputes arising thereafter would not be subject to an arbitration clause included in an employment agreement.

The current state of arbitration across the country is a classic case of too much of a good thing.  In theory, arbitration would serve as an option afforded to both parties to a dispute, with each party given the opportunity to weigh the pros and cons of that option to determine if they wished to have their dispute resolved through arbitration. In reality, however, this is not how arbitration works most of the time.  In the majority of arbitrations, one party was not truly given an option and did not understand anything about the process prior to “agreeing” to have any future dispute resolved through that process.  As a result, many people never get their day in court, because they unwittingly signed away their right to do so.

The Millville Dallas Airmotive Plant Job Loss Notification Act, otherwise referred to as the New Jersey WARN Act (“NJ WARN Act”), requires employers of 100 or more full-time employees to provide advanced notice to terminated employees prior to certain events such as plant closings, operational transfers or terminations, and mass layoffs.  The New Jersey Senate Commerce Committee recently approved a bill that seeks to increase the NJ WARN Act’s prenotification period and require severance pay to affected employees in qualifying terminations.

The current New Jersey Warn Act requires qualifying employers to provide written notice to all affected employees not less than 60 days before the first termination in connection with certain terminations or transfers of operations and mass layoffs.  If the employer fails to provide proper notice, the employer must provide those terminated employees which severance pay equal to one week’s compensation for each full year of the employee’s employment.

On February 19, 2019, Governor Phil Murphy signed into law an extensive expansion of New Jersey’s paid Family Leave Insurance program and amends the New Jersey Family Leave Act. The New Jersey paid family leave program, which is about 10 years old, provides employees with paid leave for qualifying reasons to care for a newborn, adopted child or sick relative.  The New Jersey Family Leave Act, which was adopted in 1989, provides for eligible employees the right to take up to 12 weeks off from work in a 24 month period in order to care for a family member who is suffering from a serious health condition or upon the birth or adoption of a child.The new expansion of the paid family leave law extends paid benefits to eligible employees from six weeks to twelve weeks.  The new law will also make the benefits payable at a higher rate. Currently, benefits pay out two-thirds of an employee’s pay, capped at $633 per week. The enhanced benefits will entitle eligible workers to 80% of their wages, up to $860 per week. Further, the law was also expanded with regard to intermittent leave, increasing the entitlement from 42 days to 56 days, beginning July 2020.

In 2008, New Jersey followed in California’s footsteps and became the second state to enact paid family leave. Unfortunately, awareness of the program and its benefits has not been widespread. A 2017 study showed that only 12% of New Jersey’s eligible new parents were receiving family leave benefits. The recent enhancements signed by Governor Murphy were previously vetoed in 2017 by then Governor Chris Christie, who stated that such an expansion would be too expensive for New Jersey workers to bear.

The amendments will also change the New Jersey Family Leave Act by providing job protections to employees of private businesses that have at least 30 employees.  This change in the New Jersey Family Leave Act will become effective as of June 30, 2019.  This change represents an expansion over the old law, which only provided protections to employees of private businesses with at least 50 employees.  The program is funded through payroll deductions paid by every single New Jersey employee.  As of January 1, every New Jersey worker is contributing based on their initial $34,400 in wages, for a maximum contribution of $27.52 per year.