2015 Year In Review—The Top 10 Trends In New Jersey Employment Law

In 2015, there were important developments in New Jersey employment law. This newsletter examines some of those developments in ten key areas— background checks, whistleblowing, paid sick leave, wage and hour, Law Against Discrimination ("LAD") litigation, arbitration, workplace injury, "Faithless Servant" Doctrine, Family Medical Leave Act, and Title VII of the Civil Rights Act of 1964.

Background Checks

The Opportunity to Compete Act

On March 1, 2015, New Jersey's "ban the box" law, the Opportunity to Compete Act (OTCA), took effect. The law prevents employers in the State with more than fifteen employees from asking about a prospective employee's criminal history on the initial job application.

After the initial employment application process has concluded, an employer may inquire into an applicant's criminal record (consistent with applicable state and federal law) and may refuse to hire the applicant based on the results, unless the record was expunged or erased through executive pardon and provided that the refusal does not run afoul of any other laws, rules, or regulations. The law permits an employer to inquire into an applicant's criminal history during the initial employment application process when the applicant voluntarily discloses (whether orally or in writing) his or her criminal record. Further, the law exempts any inquiry into an applicant's criminal background if employment sought or being considered is for positions in law enforcement, corrections, the judiciary, homeland security or emergency management.

The New Jersey Division on Civil Rights, the division that enforces the OTCA, can impose a monetary penalty of no more than $1,000 for a first violation, $5,000 for a second violation, and $10,000 for each subsequent violation against an employer. Notably, under the OTCA, job applicants cannot bring suit against a prospective employer for alleged violations.

On December 7, 2015, the New Jersey Department of Labor and Workforce Development (NJDOL) issued regulations that clarify the requirements under the OTCA. The regulations state that the "initial interview process" begins when the employer makes inquiries to an applicant about the position or when the applicant makes inquiries about the job. The "initial interview process" ends after the employer conducts the applicant's first interview. According to the regulations, New Jersey employers may include questions about criminal history if they are using a standard application in multiple states; however, the application must state "[t]hat an applicant for a position the physical location of which will be in whole, or substantial part, in New Jersey is instructed not to answer this question." The regulations also state that all employers with fifteen or more employees over twenty calendar weeks are covered by the OTCA, regardless of whether those fifteen employees work in New Jersey. For more coverage on the OTCA, please see our previous blog post.

Credit Checks

On December 14, 2015, the New Jersey State Assembly advanced Bill A2298, moving the bill forward. The bill, if enacted, will place new limits on an employer's ability to conduct credit checks in the workplace. The proposed legislation restricts when employers can require credit checks, both of existing or potential employees, and bar employers from using credit card information to discriminate against those individuals. Under the bill, employers are also prohibited from requiring potential employees to waive or limit any protections afforded by the bill as a condition of their employment. Employers may conduct credit checks, however, when they are required to by law or when they reasonably believe that an employee has committed a specific financial crime. The bill provides that any individual who alleges discrimination under the law can bring an action in court for injunctive relief and damages, including attorneys' fees and court costs. In addition, the bill provides for civil penalties—collectible by the Commissioner of Labor and Workforce Development—up to $2,000 for the first violation, and $5,000 for each subsequent violation.

Conscientious Employee Protection Act

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