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book image New Jersey Employment Law 2014
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Author Name Rosemary Alito
Vincent N. Avallone
Joel L. Botwick
Dominick J. Bratti
Christine Michelle Duffy
Anthony Palmisano
Stephen F. Payerle
 
Published date 2014
ISBN no. 978-1-57625-624-4
eBook ISBN no. 978-1-57625-636-7
Condition New
 
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Title
Preface
Acknowledgments
About the Authors
Chapter 1: Employment Contracts Express and Implied
Employment Contracts Express and Implied
I. INDIVIDUAL CONTRACTS
1-1 The Employment Relationship
1-2 Lifetime Contracts
1-2:1 Employment at a Specific Salary
1-3 Specific Performance
1-4 Statute of Frauds
1-5 Employees Covered by Collective Bargaining Agreements
II. EMPLOYEE HANDBOOKS
1-6 When is a Handbook a Contract?
1-6:1 Distribution
1-6:2 Legally Binding Language
1-6:3 “Just Cause” Provisions
1-6:4 Economic Necessity
1-6:5 Employees Under Contract
1-7 Clear and Prominent Disclaimers
1-8 Revocation and Alteration
1-9 Arbitration
III. INFORMAL POLICIES
1-10 Oral “Woolley” Claims
1-11 Estoppel
1-11:1 Clear and Definite Representation
1-11:2 Detrimental Reliance
IV. RESTRICTIVE COVENANTS
1-12 General Requirements
1-12:1 Legitimate Interests of the Employer
1-12:2 Undue Hardship on the Employee
1-12:3 Injury to the Public
1-12:4 Consideration
1-13 The Professions: Doctors, Lawyers and Accountants
1-14 Enforcement: The Blue Pencil Doctrine
V. GOOD FAITH AND FAIR DEALING
1-15 Requisites
VI. WAIVERS
1-16 Common Practice
1-17 Consideration
1-18 Duress
1-19 Ratification
VII. REMEDIES
1-20 Compensatory Damages
1-21 Punitive Damages
1-22 Emotional Distress Damages
1-23 Prejudgment Interest
Chapter 2: Public Policy Claims
Public Policy Claims
I. INTRODUCTION
2-1 Overview
II. COMMON LAW CLAIMS
2-2 Pierce: Public Policy Exception
2-3 Clear Mandate of Public Policy
2-3:1 Retaliation for Refusal to Engage in Illegal Conduct
2-3:2 Retaliation for “Whistleblowing”
2-3:3 Retaliation for Exercising Personal Rights
2-3:4 Retaliation Proscribed by Other State and Federal Statutes
2-3:5 Non-Retaliatory Discharge
2-3:6 Causation
2-4 Other Coverage Issues
2-5 Statute of Limitations
2-6 Policy Expressed in Statutes
2-6:1 New Jersey Law Against Discrimination (LAD)
2-6:2 Employee Retirement Income Security Act
2-6:3 Section 301, Labor Management Relations Act
2-6:4 Family Leave Act
2-7 Remedies
III. CONSCIENTIOUS EMPLOYEE PROTECTION ACT (CEPA)
2-8 Coverage
2-9 Internal Complaints/Exhaustion
2-10 Notice
2-11 Procedure
2-11:1 Interaction With Other Laws
IV. OTHER RETALIATION
2-12 Civil Service Whistleblowers
2-13 Reporting Child Abuse
2-14 Informing the Casino Control Commission
2-15 Informing the Ombudsman for the Institutionalized Elderly
2-16 Reporting Abuse of Vulnerable Adults
2-17 Refusing to Perform Abortions
2-18 Exercising Rights Granted by the Right to Know Law
2-19 Exercising Rights Under the Worker Health and Safety Act
2-20 Exercising Rights Under the Law Against Discrimination
2-21 Pursuing Workers’ Compensation Benefits
2-22 Farm Laborers
2-23 School Employees
2-24 Family Leave Act
2-25 Asserting Rights Under the Minimum Wage Law
2-26 Asserting Rights Under the Prevailing Wage Law
2-27 Attending Court for Jury Service
2-28 Lie Detector Test Prohibition
2-29 Freedom from Employer Intimidation
Chapter 3: Workplace Torts
Workplace Torts
I. INTRODUCTION
3-1 Overview
II. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
3-2 General Requirements
3-3 Intent
3-4 Extreme or Outrageous Behavior
3-4:1 Misleading Conduct/Misrepresentations
3-4:2 Discriminatory/Unkind/Unfair Conduct
3-4:3 Rough Treatment by the Employer
3-4:4 Harassment/Sexual Harassment
3-5 Proximate Cause
3-6 Severe Emotional Distress
3-6:1 Necessity of Expert Testimony
III. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
3-7 Requisites
3-7:1 Duty/Foreseeability
3-7:2 Genuine and Substantial Distress
3-8 Exclusivity of Workers’ Compensation
IV. CONTRACTUAL INTERFERENCE
3-9 Requisites
3-9:1 Protectable Rights
3-9:2 Intent
3-9:3 Causation
3-9:4 Damages
3-9:5 Necessity of a Tri-Partite Relationship
V. DEFAMATION
3-10 Requisites
3-11 Defamatory Meaning
3-12 Libel
3-12:1 Slander
3-12:2 Opinion
3-12:3 Publication
3-13 Privilege
3-13:1 Immunity
3-13:2 Qualified Privilege
3-13:3 Abuse of the Qualified Privilege
3-13:4 Truth
3-14 Damages
VI. FRAUD
3-15 Requisites
3-15:1 Material Misrepresentation
3-15:2 Scienter
3-15:3 Reliance
3-15:4 Detriment/Damages
3-15:5 Clear and Convincing Evidence
VII. NEGLIGENT MISREPRESENTATION
3-16 Requisites
3-17 Duty to Disclose
VIII. TORTS OF EMPLOYEES
3-18 Overview
3-18:1 Respondeat Superior
3-18:2 Nature of the Conduct
3-18:3 Negligent Hiring/Retention
3-19 Punitive Damages
Chapter 4: Law Against Discrimination
Law Against Discrimination
I. OVERVIEW
4-1 Introduction
4-2 Scope of Coverage of LAD
4-3 New Jersey Constitution
4-4 Pre-emption of the LAD
4-5 Persons Protected
4-6 Persons Regulated
II. REGULATED CONDUCT
4-7 Generally
4-8 Age Discrimination
4-9 Ancestry Discrimination
4-10 Armed Forces Discrimination
4-11 Atypical Hereditary Cellular or Blood Trait Discrimination
4-12 Color Discrimination
4-13 Creed Discrimination
4-13:1 Reasonable Accommodation Requirement
4-13:2 Religious Membership Requirements
4-13:3 Genetic Information
4-14 Disability Discrimination
4-14:1 Disability Defined
4-14:2 Reasonable Accommodation Requirement
4-14:3 Performance of Handicapped Individuals
4-14:4 Safety Hazards Created by Handicapped Employees
4-14:5 Testing
4-15 Marital Status, Domestic Partner Status and Civil Union Status Discrimination
4-16 National Origin Discrimination
4-17 Nationality Discrimination
4-18 Race Discrimination
4-19 Sex and Gender Discrimination
4-19:1 Sex-Plus Discrimination
4-19:2 Pregnancy Discrimination
4-19:3 Gender Identity or Expression
4-20 Affectional or Sexual Orientation Discrimination
4-21 Apprenticeship Programs
4-22 Employment Advertising and Referrals
4-23 Pre-employment Inquiries and Tests
4-24 Posting Requirements
4-25 Harassment
4-25:1 Sexual Harassment
4-26 Retaliation
4-27 Aiding, Abetting, and Attempting Discrimination
4-28 Constructive Discharge
4-29 Bona Fide Employee Benefit Plans
4-29:1 Mandatory Retirement
4-29:2 Voluntary Retirement Incentives
4-30 Bona Fide Occupational Qualifications
III. STANDARDS OF PROOF
4-31 Overview
4-32 Disparate Treatment—McDonnell Douglas Test
4-32:1 The Prima Facie Case
4-32:2 The Employer’s Burden of Production
4-32:3 Plaintiff’s Proof of Pretext/Intentional Discrimination
4-33 Dual Motives/Price Waterhouse Test
4-34 Retaliation Claims
4-35 Disability Discrimination
4-36 Equal Pay
4-37 Sexual Harassment
4-38 Reverse Discrimination
4-39 Causation
4-40 After-Acquired Evidence
4-41 Disparate Impact
IV. ENFORCEMENT
4-42 The Division on Civil Rights
4-43 DCR Declaratory Rulings and Advisory Opinions
4-44 Director’s Investigations
4-45 Enforcement Proceedings
4-46 Arbitration Agreements
4-46:1 Collective Bargaining Grievance Procedures
4-46:2 Impact of Prior Determinations
4-46:3 Waiver of LAD Rights
4-46:4 Jurisdiction of the DCR
4-46:5 DCR/EEOC Worksharing Agreement
4-47 Commencing Proceedings Before the DCR
4-47:1 DCR Investigation
4-47:2 Discovery
4-47:3 Subpoena Power
4-47:4 Fact-Finding Conference
4-47:5 Probable Cause Determination
4-48 Conciliation
4-49 Hearing
4-49:1 Interim Relief
4-49:2 Transfer to the Office of Administrative Law
4-49:3 Discovery
4-49:4 Discovery of the DCR’s Files
4-49:5 Subpoenas
4-49:6 Informal Disposition
4-49:7 Summary Disposition
4-49:8 Presentation of Evidence
4-49:9 Rules of Evidence
4-49:10 Amending the Pleadings
4-50 Initial Decision of the ALJ
4-50:1 Filing Exceptions to the Initial Decision
4-51 Final Decision of the Director
4-52 Summary Enforcement Proceedings in the Superior Court
4-53 Commencing Proceedings in the Superior Court
4-54 Remedies
4-54:1 In DCR Proceedings
4-54:2 In Superior Court Proceedings
4-54:3 Front Pay
4-54:4 Emotional Distress Damages
4-54:5 Punitive Damages
4-54:6 Counsel Fees
4-54:7 Criminal Offenses
4-55 Affirmative Action
4-56 Statutes of Limitation
Chapter 5: Employee Privacy
Employee Privacy
I. INTRODUCTION
5-1 Generally
II. OFFICE SEARCHES
5-2 Generally
III. E-MAIL AND INTERNET USE
5-3 Generally
5-4 Social Media
IV. POLYGRAPH TESTS
5-5 Generally
V. BACKGROUND CHECKS
5-6 Generally
Chapter 6: The Family Leave Act
The Family Leave Act
I. OVERVIEW
6-1 Generally
II. COVERAGE
6-2 Employers Subject to FLA
6-3 Employees Eligible
III. TAKING LEAVE
6-4 Advance Notice of Leave Required
6-5 Circumstances Warranting Leave
6-5:1 Relation with Other Laws
6-6 Duration and Timing of Leave
6-6:1 Intermittent Leave
6-6:2 Reduced Leave Schedule
6-6:3 Payment During Leave
6-7 Continuation of Benefits During Leave
6-8 Employment During Leave
6-9 Reinstatement
6-10 Grounds for Denial or Revocation of Leave
IV. POSTING
6-11 Posting
6-11:1 Sample Notice
V. Enforcement
6-12 Enforcement
6-13 Table 1: Comparison of New Jersey Family Leave Act and Federal Family and Medical Leave Act
VI. NEW JERSEY PAID FAMILY LEAVE LAW
6-14 Summary and Scope
6-15 Intersection with FLA and FMLA
6-16 Posting Requirements for Employers
6-17 Private Plan Requirements
6-18 State Plan Requirements
6-19 Fraud Prevention and Penalties
VII. NEW JERSEY SAFE ACT
6-20 Summary and Scope
6-21 Employers Subject to the NJ Safe Act
6-22 Employees Eligible
6-23 Circumstances Warranting Leave
6-24 Intersection with Other Forms of Leave
6-25 Advance Notice and Certification Requirements for Employees
6-26 Posting Requirements for Employers
6-27 Enforcement
Chapter 7: Health and Safety
Health and Safety
I. THE RIGHT TO KNOW ACT
7-1 Introduction
7-2 Covered Employers/OSHA Pre-emption
7-3 Reporting Requirements
7-4 Labeling Requirements
7-4:1 Pipelines
7-4:2 Reaction Vessels
7-4:3 Containers Holding Two Ounces or Less
7-4:4 Containers Located at Storage or Transfer Facilities
7-4:5 Containers at Research and Development Laboratories
7-5 The Right to Know Survey (Public Employers)
7-6 Employee Training (Public Employers)
7-7 Trade Secrets—Filing of Trade Secret Claims
7-7:1 Access to Trade Secret Information
7-8 Public Employee Access to Information
7-9 Public Access to Reported Information
7-10 Enforcement Provisions
7-11 Whistleblower Protection
II. DRUG TESTING
7-12 Introduction
7-13 Public Employers
7-14 Private Employers
7-14:1 Testing of Prospective Employees
7-14:2 Testing of Current Employees
7-15 Handicap Discrimination
III. SMOKING IN THE WORKPLACE
7-16 Introduction
7-17 Prohibition of Discrimination
7-18 New Jersey Smoke-Free Air Act252 N.J.S.A. 26:3D-55, et seq.
7-18:1 Signage
7-18:2 Enforcement
Chapter 8: Wage and Hour
Wage and Hour
I. OVERVIEW
8-1 Scope of Chapter
II. WAGE PAYMENT
8-2 Time of Payment/In General
8-2:1 Executive and Supervisory Personnel
8-2:2 Railroad Employees
8-2:3 Termination or Suspension of Employee
8-2:4 Death of Employee
8-3 Mode of Payment
8-3:1 Withholding or Diverting of Wages/In General
8-3:2 Permissible Withholding
8-3:3 Employer-Owned Stores
8-3:4 Payment for Medical Examinations
8-3:5 Other Obligations and Duties of the Employer
8-3:6 Agreements for Payment of Wages
8-3:7 Dispute Over Wages
8-3:8 Rights of Employees as Against Employer’s Creditors
8-3:9 Regulation and Enforcement
8-3:10 Penalties
III. WAGE AND HOUR LAW
8-4 Purpose
8-5 Minimum Wage Rate
8-5:1 Overtime
8-5:2 Exemptions From Overtime

8-5:2.1 Employees Prohibited from Working Overtime

8-5:3 Employees Exempt from Minimum Wage Rates
8-5:4 Regulation/Office of Wage and Hour Compliance
8-5:5 Creation of Wage Boards
8-5:6 Powers of Wage Boards
8-5:7 Procedure for Promulgation of Wage Order
8-5:8 Learners, Apprentices and Students
8-5:9 Handicapped Persons
8-6 Recordkeeping
8-7 Notice
8-8 Enforcement
IV. DISCRIMINATION IN WAGES
8-9 Prohibition Against Sex Discrimination
8-10 Posting Requirement
V. WAGES ON PUBLIC WORKS
8-11 The Prevailing Wage Act
8-11:1 Procedure
8-11:2 Employers’ Obligations

8-11:2.1 Registration

8-11:3 Obligations of the Public Body
8-11:4 Powers of the Commissioner of Labor
8-11:5 Enforcement
8-11:6 Debarment
VI. EXECUTION285 N.J.S.A. 2A:17-50 to -56.25.
8-12 Judgment Creditors
8-12:1 Limit on Amount Garnished
8-12:2 Multiple Executions
8-12:3 Obligations of Employer
8-12:4 Child Support and Alimony
8-12:5 Due Process
8-12:6 Prohibition Against Discrimination
VII. WAGE COLLECTION
8-13 Wage Claims
8-13:1 Settlement of Wage Claims
8-14 Set-off
8-15 Appeals Procedure
8-16 Jury Trial
VIII. CHILD LABOR LAWS
8-17 Purpose
8-18 Minors Under 16 Years of Age
8-19 Hours of Employment
8-20 Prohibited Employments
8-21 Lunch Periods
8-22 Posting Requirements
8-23 Employment Certificates
8-24 Non-Commercial Recycling Centers
8-24:1 Educational Programs in Science
8-25 Enforcement
8-26 Penalties
8-27 Workers’ Compensation and Civil Liability
IX. EMPLOYEE CLASSIFICATION
8-28 Construction Industry Independent Contractor Act
X. NEW JERSEY’S PLANT CLOSING LAW
8-29 The Millville Dallas Airmotive Plant Job Loss Act
Chapter 9: Unemployment Compensation
Unemployment Compensation
I. INTRODUCTION
9-1 Generally
9-2 Employment Status
II. BENEFITS
9-3 Measure of Benefit
9-4 Maximum Total Benefits
9-5 “Unemployment” for Entitlement Purposes
9-6 Eligibility/General
9-6:1 Filing a Claim
9-6:2 Able To Work
9-6:3 Actively Seeking Work
9-6:4 Available for Work
9-6:5 Waiting Period
9-6:6 Earnings Requirement
9-6:7 Total Disability
9-6:8 Part-Time Employees
9-6:9 Rules for Employees of Educational Institutions
9-6:10 Rules for Professional Athletes
9-6:11 Extended Benefits
9-7 Disqualification
9-7:1 Voluntary Termination of Employment
9-7:2 Misconduct
9-7:3 Failure to Apply For or Accept Suitable Work
9-7:4 Involvement in Labor Dispute
9-7:5 Remuneration in Lieu of Notice
9-7:6 Other Benefits
9-7:7 Fraud
9-7:8 Participation in Training Program
9-7:9 Attending School Full Time
9-7:10 Domestic Violence
9-7:11 Employees on Leave of Absence
9-7:12 Shared Work Program
9-8 Offsets for Pension and Retirement Benefits
9-9 Deductions for Child Support
III. PROCEDURES
9-10 Claims for Benefits
9-10:1 Initial Determinations
9-10:2 Time for Appeal of Initial Determination
9-10:3 Benefits During Pendency of Appeal
9-10:4 Appeal Tribunals
9-10:5 Action by the Board of Review
9-10:6 Judicial Review
9-10:7 Failure to Give Notice
IV. CONTRIBUTIONS
9-11 By Employers
9-12 By Nonprofit Organizations and Governmental Entities
9-13 By Employees
9-14 Collection/Employer Obligations
9-14:1 Personal Liability of the Employer
9-14:2 Limitations Period for Action Against an Employer
9-14:3 Rights of the Employer
9-14:4 Refunds
V. RIGHTS AND BENEFITS
9-15 Protection of Claimants
VI. PENALTIES
9-16 Penalties for Claimants
9-17 Penalties for Employers
Chapter 10: Temporary Disability
Temporary Disability
I. INTRODUCTION
10-1 Generally
II. BENEFITS
10-2 Entitlement to Benefits
10-3 Duration of Benefits
10-4 Maximum Amount of Benefits
10-5 Limitation of Benefits
10-6 Non-duplication of Benefits
III. PRIVATE PLANS
10-7 Establishment of Private Plans
10-8 Benefits Under Private Plans
10-9 Termination of Private Plan
10-10 Supplementary Plans
IV. OBTAINING BENEFITS
10-11 Filing a Claim Under the State Plan
10-12 Hearings
V. RECORDS
10-13 Records of Employers Under the State Plan
10-14 Records of Employers Under Private Plans
VI. PROTECTION OF CLAIMANTS
10-15 Benefits Protected
VII. PENALTIES
10-16 Penalties for Claimants
10-17 Penalties for Employers
10-18 Penalty for Fraud
Chapter 11: Insurance Coverage for Employees
Insurance Coverage for Employees
I. GROUP LIFE INSURANCE
11-1 Introduction
11-2 Requirements for Individual Employers
11-3 Requirements for Labor Unions
11-4 Requirements for Trustee Groups
11-5 Dependents of Employees
11-6 Standard Provisions Applicable to Group Policies
11-7 Conversion on Termination of Employment or Membership
11-8 Conversion on Termination or Amendment of Policy
11-8:1 Death Within the Conversion Period
11-8:2 Total Disability Within the Conversion Period
11-8:3 Notice of Conversion Rights
II. GROUP HEALTH INSURANCE
11-9 General Requirements
11-10 Dependents
11-11 Standard Provisions
11-12 Continuation Upon Total Disability
11-12:1 Termination of Continued Insurance
11-12:2 Notification
Chapter 12: Successor Liability
Successor Liability
12-1 Introduction
12-2 Traditional Rules in New Jersey
12-3 Successor Liability for Employment Practices
Table of Cases
Index
 
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