Articles Posted in Labor and Employment

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Thumbnail image for Thumbnail image for tenure male.jpgNew Jersey recently enacted the Teacher Effectiveness and Accountability for the Children of New Jersey (TEACHNJ) Act. The TEACHNJ Act significantly changes the rules for the acquisition of tenure by New Jersey teachers and other New Jersey public school “teaching staff members.” The TEACHNJ Act changes the time period of service prior to acquiring tenure, sets up uniform evaluation requirements as a prerequisite to obtaining tenure, and drastically changes the process for challenging discipline against tenured teaching staff members.

Tenure for a “teaching staff member” means she can only be dismissed or reduced in compensation “during good behavior” for “inefficiency, incapacity, or conduct unbecoming such a teaching staff member or other just cause,” although tenured teaching staff members can still be laid off for economic reasons or declining enrollment provided that seniority is honored. It also provides tenured teaching staff members with procedural safeguards before they can have their compensation reduced or be fired.

“Teaching staff members” for tenure purposes include:

  • Teachers
  • Principals, other than administrative principal
  • Assistant principals
  • Vice-principals
  • Assistant superintendents
  • All school nurses, including school nurse supervisors, head school nurses, chief school nurses, school nurse coordinators, and any other nurse performing school nursing services
  • School athletic trainers
  • Such other employees as are in positions which require them to hold appropriate certificates
  • School business administrators shared by two or more school districts.

Schools are required to establish a school improvement panel and mentorship program for new teachers during their first year which the teacher must complete. The panel oversees the mentorship program. It must be “research-based” and enhance teacher knowledge and strategies in the core curriculum. It must pair first year teachers with effective, experienced teachers. The board must provide teaching staff members with ongoing professional development opportunities.
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construction 9-10.JPGThere are severe civil and administrative penalties for misclassification of workers who should actually be employees as independent contractors. If a worker is classified as an employee, the employer must pay approximately an additional 7.5 percent of her salary in payroll taxes, as well as workers compensation insurance, and the benefits which other employees get. This gives businesses a strong incentive to classify workers as independent contractors. However, this has long been illegal under both federal and New Jersey Employment law.

New Jersey has found this practice to be widespread in the construction industry, depriving workers of benefits, social security taxes, and forcing the employer to pay self-employment tax, or the employer’s portion of the payroll taxes. Additionally, the New Jersey Legislature has found that this puts businesses currently classifying workers as employees at a competitive disadvantage with those whose do not because of the higher costs they bear. New Jersey therefore enacted the New Jersey Construction Industry Independent Contractor Act.
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Virtually all residential landlords in New Jersey are required by law to register their apartments with the town in which the property is located. The only exception is when the owner of the apartment building lives in the building and there are less than three rental units in the building.

Further, all apartments must meet local zoning ordinances. While local zoning ordinances vary from town to town, illegal apartment zoning issues typically come up when a landlord rents out an attic, basement, or garage unit. Town ordinances are designed to maintain the health and welfare of the citizens and, as a result, illegal apartments typically also pose some significant health or safety risk. For instance, an attic unit may create a dangerous fire hazard if it does not have an accessible fire escape, while basement and garage units may fail to have the proper light or ventilation causing significant health concerns.

How do you know if you are in an illegal apartment? Many times tenants do not discover that their apartment is illegal until a town official tells them. However, in most cases a tenant suspicious of an illegal apartment can inquire with the local municipality’s zoning board. Some towns where illegal apartments are prevalent, such as Jersey City, even have websites where citizens can report suspected illegal apartments online.
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apartment building (2).JPGNew Jersey landlord-tenant law offers residential tenants a great deal of protection to ensure that people have a secure and safe place to live, provided that tenants comply with their duties and responsibilities.

A landlord/tenant relationship typically begins with the signing of a lease. The lease is a contract – a legal document which specifies the rights and obligations of both the landlord and tenant to one another.

In a typical lease, tenants are required to pay rent and a security deposit, take good care of the premises, and comply with all laws. Often tenants are required to pay the utilities and request permission from landlords before obtaining a pet or altering the premises by, for example, repainting rooms. Landlords, on the other hand, have the responsibility to provide tenants with safe premises that are supplied by water, heat, and proper facilities for installation of a refrigerator.

Beyond their contractual responsibilities, landlords and tenants have other responsibilities to each other. However, the responsibilities of New Jersey landlords far exceed those of tenants. For example, tenants have the right of “quiet enjoyment.” Landlords must ensure that New Jersey tenants can live in their premises without any disturbances from other tenants or the landlord.

Further, New Jersey does not allow landlords or police officers to evict tenants by locking them out of the premises. A “self-help” eviction is illegal and in New Jersey is considered a criminal offense. Evictions may only be completed by special court officers with a warrant for removal issued by a judge.
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The purpose of New Jersey’s Unemployment Compensation Law is protecting people from the harsh effects of losing their jobs, and providing a safety cushion for this sudden loss of employment.

Most employees are “at will” employees. This means that there are no contractual terms of employment or specific requirements for termination. An employer in such a relationship can fire the employee for just about any reason as long as that reason is not discriminatory or retaliatory, i.e. in response to a valid objection by the employee to the legality of the employer’s conduct.

So, an employer can walk into work one day and decide to fire the first person he sees, no matter who that person is, and no matter how well that worker performs her job. In such a situation, although there is no “good” reason for that firing, it is not illegal. However, that employee is able to make a claim for unemployment compensation since her firing was done though no fault of the employee. After all, this is required insurance for which every employee pays.

 

 

In order to make a claim for unemployment compensation, the employee is required to have had at least 20 “base weeks” of earnings or have earned a certain minimum required dollar amount. These amounts may be periodically adjusted by the State to reflect changes in income rates, for instance taking into consideration the State’s hourly minimum wage. In 2012, this meant that, in order to qualify for unemployment compensation, the employee had to have worked for the employer for at least 20 weeks in which the employee earned $145.00 or more, or at least $7,300.
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New Jersey’s Law Against Discrimination

New Jersey’s Law Against Discrimination (the “LAD”) protects many people, particularly employees, from discrimination because of their race, ethnicity or religion, among other things. Discrimination can take many forms, but includes direct tangible adverse employment actions, such as firing, demotion, etc., and harassment which cause a hostile work environment. In order to constitute discrimination, harassment must be either “severe or pervasive,” and severe or pervasive enough to create a “hostile work environment.”

The Law on Poorly Aimed Discrimination

The law prohibiting discrimination and harassment is well established. However, an issue arose as to whether discrimination or harassment based not on a person’s actual race, ethnicity or religion, but on his incorrectly perceived religion, race or ethnicity is also protected.

The LAD also protects against discrimination or harassment based on disability. As far back as 1982, New Jersey Supreme Court noted in a footnote, Anderson v. Exxon Co., 89 N.J. 483 (1982), that employers could not discriminate based on a perceived disability, even if the employee was not actually disabled. Although that was not the issue in the Supreme Court’s 1982 decision, the Appellate Division shortly thereafter decided another case, affirming the rule that employers could not discriminate based on a perceived, even if an incorrectly perceived, physical disability.

The LAD also prohibits discrimination in housing. In 1987, the Superior Court’s trial division found that a landlord had violated the LAD by refusing to rent an apartment to three gay men (sexual orientation is also protected by the LAD), based on the landlord’s perceived but on the mistaken perception that they would contract AIDS.
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257897_whistle1.JPGNew Jersey’s Conscientious Employee Protection Act (“CEPA”) is New Jersey’s whistleblower protection law. CEPA provides perhaps the broadest and strongest legal protections in the country against whistleblower retaliation. However, it does not protect against all employee complaints that an employer is doing something it shouldn’t. In the recent case of Powell v. Wachovia Corporation, the Appellate Division of New Jersey’s Superior Court once again defined the outer limits of what objections are protected.

CEPA: New Jersey’s Conscientious Employee Protection Act, the “Whistleblower Law.”

Among other things, CEPA prohibits employers from retaliating against employees who object to or refuse to participate in an employer activity, policy or practice which they reasonably believe violates a law, regulation or public policy, or which is criminal or fraudulent.

Examples of objections which New Jersey courts have found to be protected be protected under CEPA include:

  • New Jersey’s Supreme Court held that complaints about inadequate ventilation in a school shop affecting health and safety outlined in a guide incorporating regulations constituted clear mandate of public policy.
  • New Jersey’s Supreme Court found that objections that police selectively refused to enforce laws regarding sex-industry was complaint of violation of law affecting public welfare.
  • The Appellate Division held that objections to adoption of dog which had previously been violent impacted clear mandate of public policy to protect public from vicious dogs.
  • The Appellate Division found that a grammar school custodian objecting to unsanitary conditions in a student lavatory constituted objection regarding clear mandate of public policy.

What Happened Between Powell and His Employer, Wachovia

James Powell was a “benefits producer” for several insurance companies which were eventually acquired by Wachovia. As a benefits producer, Powell’s job was to market, sell and place insurance policies provided by companies as employee benefits. Powell was an “at-will” employee. However, he and his fellow benefits producers at Wachovia’s Wayne, New Jersey, were compensated under a contract from 1993 which had long ago expired. Under this scheme, they were paid fifty per cent of the revenue they generated.
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warn.jpgWe live in a time of economic turmoil. New Jersey’s unemployment rate stands at nine percent, well above the national average. Many New Jersey employees find themselves losing what they thought were secure jobs. Loss of a job can lead to devastating consequences. However, both the Federal and New Jersey WARN Acts require employers to provide advance notice before instituting mass layoffs.

The Federal WARN Act.

The Federal Warn Act was passed by Congress in 1988. It was designed to give workers and their families advance notice of mass layoffs to allow them, and their communities, to prepare for the impact of plant closings. It was passed with a veto-proof majority; it thus became law even though President Reagan did not sign it.

The Federal Warn Act requires 60 days notice to workers (or their union) who are affected by mass layoffs or plant shutdowns. It covers businesses with 100 full or part-time employees who work a combined 4000 hours per week or more. It covers plant shutdowns of at least 30 days which affect at least 50 employees, or mass layoffs affecting at least one third of the workers at a single worksite.

Exceptions to the notice requirements are made for closings or layoffs resulting from unforeseeable events or business circumstances. An employee who did not receive the notice can sue for unpaid wages and the employer may have to cover her attorneys fees, in the court’s discretion, if the failure was not in good faith. The employer may also face penalties.
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Businesses with any New Jersey employees are responsible for withholding and paying income taxes, Medicare taxes, and Social Security, and paying payroll taxes on wages paid to their employees. However, in general, the same businesses do not have to do so when hiring independent contractors.

Therefore, it may be tempting for a business to classify all workers as independent contractors to avoid payments. However, the Internal Revenue Service and New Jersey Division of Taxation have stringent regulations to ensure that businesses correctly classify their workers. The IRS imposes significant penalties on businesses which have misclassified their workers as independent contractors.

A worker is an independent contractor if the “employer” has the right to direct only the result, but not the way in which the worker performs her job. For example, if a business hires a New Jersey attorney to sue another company for breach of a contract, the business does not direct the attorney on how to argue the case, what motions to file, etc. The client educates the attorney about the dispute and asks the attorney to work towards a certain result (recovering lost profits). Therefore, this attorney is a New Jersey independent contractor, not an employee.
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Pregnancy Discrimination
In 2011, the Equal Employment Opportunity Commission (“EEOC”) received the largest number of complaints of pregnancy discrimination in its history. Pregnancy discrimination has been increasing since at least 1992. Pregnancy discrimination in New Jersey, New York and nationally continues to be a major problem.

It is illegal to discriminate against pregnant mothers. Pregnancy discrimination in New York and New Jersey is barred by law. Employers may not refuse to hire pregnant women, fire pregnant women, or lay employees off because of their pregnancy, harass or transfer them because of their pregnancy, or shift them to work that is perceived as “safer” or “lighter.” The only exception is that transfers can be made as a legitimate accommodation for the specific medical needs of a particular employee.

Employers are permitted to ask the estimated delivery date and expected length of leave before and after delivery, but they are not allowed to ask for a specific date that pregnancy leave will begin. Employers must rehire mothers after delivery, and make reasonable accommodations beforehand.

New Jersey Law
New Jersey’s Law Against Discrimination bans discrimination based on “sex.” The New Jersey’s Supreme Court has ruled that sex discrimination includes discrimination based on pregnancy.

Federal Law
Title VII of the Civil Rights Act of 1964 likewise prohibits pregnancy discrimination. In 1978, Congress enacted the Federal Pregnancy Discrimination Act. The Federal Pregnancy Discrimination Act amended Title VII to include pregnancy discrimination as sex discrimination. It also prohibits discrimination based on medical conditions related to pregnancy. It provides that if an employer offers a health plan, pregnancy must be a covered condition. However, the Federal Pregnancy Discrimination Act, being part of Title VII, only covers employers with 50 or more employees.
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