Three New Statutes in New Jersey Increase Employee Rights

Perhaps the gubernatorial election coming up this fall explains this development, but whatever the reason may be, three new laws protecting employees in New Jersey were adopted during the summer of 2013 and should now be on the radar screen for all New Jersey employers. In brief, the laws add the following new protections for employees:

1. SALARY SECRECY: The New Jersey Law Against Discrimination has been amended to add a new protected class of individuals. Effective immediately, employers are prohibited from retaliating against employees who discuss their jobs and specifically employee compensation (including benefits) with other employees, provided that the employees’ purpose in having that discussion is to assist in investigating potential discriminatory treatment concerning “pay, compensation, bonuses, other compensation, or benefits.” The critical statutory language provides that it is unlawful:

"For any employer to take reprisals against any employee for requesting from any other employee or former employee of the employer information regarding the job title, occupational category, and rate of compensation, including benefits, of any employee or former employee of the employer, or the gender, race, ethnicity, military status, or national origin of any employee or former employee of the employer, regardless of whether the request was responded to, if the purpose of the request for the information was to assist in investigating the possibility of the occurrence of, or in taking of legal action regarding, potential discriminatory treatment concerning pay, compensation, bonuses, other compensation, or benefits. Nothing in this subsection shall be construed to require an employee to disclose such information about the employee herself to any other employee or former employee of the employer or to any authorized representative of the other employee or former employee."

Note that retaliation is prohibited against persons who investigate potential discrimination claims in addition to those who actually file discrimination claims.

Even employers outside New Jersey should be aware that taking action against employees who discuss compensation and other terms and conditions of employment is already perilous, given the recent pronouncements by the National Labor Relations Board that any employer policy or practice to prevent or discourage employee communications about the terms and conditions of employment to violate the National Labor Relations Act, even in non-union workplaces.

The amendment to the New Jersey Law Against Discrimination comes not long after the New Jersey Supreme Court clarified the standards for adjudicating retaliation claims under both that statute and the Conscientious Employee Protection Act. In Battaglia v United Parcel Service, decided this summer, the Court held that an employee alleging retaliation need only show that he or she had a good faith belief that the employer violated the law. The employee plaintiff in that case believed the employer was discriminating against women based on statements made by a supervisor, although there was no woman employee who would have been able to assert a discrimination claim because no woman heard the supervisor’s discriminatory statements. Notably, the substantial award for the plaintiff under the Law Against Discrimination was upheld, while the award in his favor on his Conscientious Employee Protection Act was vacated because he had not sufficiently alleged that the employer had engaged in unlawful conduct. The takeaway for employers from the foregoing is that both the legislature and the courts in the Garden State are committed to an expansive view of the protections afforded to employees who make complaints about their employer’s conduct.

2. FACEBOOK BILL: All private employers, regardless of size, are prohibited from requiring or requesting employees to disclose their name, password or other means for accessing their personal account on a social networking website used solely for personal purposes (effective 12/1/13). This statute does not apply to accounts used for business purposes. Employers may not discriminate or retaliate against employees who refuse to provide user names or passwords or provide access to personal social network accounts, as well as those who engaged in protected conduct under the new law (such as filing a claim based on the employer’s non-compliance or testifying, participating or otherwise assisting an investigation of a claimed violation or otherwise opposing an employer’s non-compliance).

There is no private right of action under this new law, but a violation can be punished administratively via penalties ($1,000 for the first and $2,500 for the second and subsequent violations). Similar statutes are being adopted in a myriad of states.

3. DOMESTIC VIOLENCE LEAVE: Finally, the New Jersey Safe Act, effective October 1, 2013, requires employers with more than 25 employees to provide 20 days unpaid leave to any employee who was a victim of domestic violence or whose child, parent, spouse, domestic partner or civil union partner was such a victim. To be eligible, the employee must have been employed for at least 12 months and for at least 1,000 base hours during the preceeding 12 month period. Intermittent leave is permitted. The employee can elect, or the employer can require, use of accrued vacation, personal leave or medical or sick leave for this leave time.

An employee who can foresee the need for leave must give advance notice in writing of his or her leave request. The employer can require that the employee provide supporting documentation.

All employers should note that they will be required to post a notice of employee rights under this statute.

Unsurprisingly, employers may not retaliate against employees who exercise their rights under this law. An emplyee who claims that his or her rights under the statute have been violated may bring suit in court, within one year of the violation.

To ensure compliance with these new laws and developments, it is recommended that New Jersey employers review their handbooks and training materials (the latter being critical in NJ for all employers, as it is mandatory that all supervisors receive discrimination training and that training be made available for all employees). Clients should contact Peter Shapiro with any questions or if assistance is required. Mr. Shapiro can be reached through e-mail at: Peter.Shapiro@lewisbrisbois.com or by phone at 212.232.1322.