Last month, the New Jersey Assembly Labor Committee advanced “The Opportunity to Compete Act,” commonly known as the “Ban the Box” bill, which if passed, will afford employment candidates with criminal histories some legal protection. Specifically, the new bill will prohibit an employer (with less than 15 employees) from inquiring about a candidate’s criminal history in connection with any employment decision during the pre-application or application process.
An employer, however, is authorized to consider an applicant’s criminal history after the candidate has received an offer of conditional employment. In this event, the bill requires that an employer obtain the candidate’s written consent to conduct a background check and provide the candidate with a “Notice of Rights” outlining the protections that the candidate is entitled under the bill.
If an employer wishes to rescind its offer of conditional employment based upon the applicant’s criminal history, the bill requires that the employer give written notification of the adverse employment decision to the candidate as well as a copy of the results of the criminal history inquiry, a completed Applicant Criminal Record Consideration Form and another copy of the “Notice of Rights.” The applicant will then be entitled to submit a response to the employer within 10 business days after receipt of the documentation above, to which the employer must respond within 45 days.
Failing to comply with the provisions of the bill subjects an employer to fines ranging from $500 to $7,500 depending on the number of employees within the company and whether the employer has committed previous violations.
We will continue to monitor the developments of this proposed legislation.
Last November, New Jersey residents successfully voted to increase the state minimum wage by one dollar. As such, legislation signed by Governor Chris Christie increased the statewide hourly minimum wage from $7.25 to $8.25, effective January 1, 2014.
New Jersey is among 14 states to implement higher wage increases, including, Arizona, California, Colorado, Connecticut, Florida, Missouri, Montana, New York, Ohio, Oregon, Rhode Island, Vermont and Washington. New Jersey is now tied with Connecticut, Washington D.C. and Illinois, as the fourth state in the nation for the highest minimum wage, following Oregon, at $8.95 per hour, Vermont, at $8.60 per hour, and Washington, at $9.19 per hour. Interestingly, however, of the states tied for fourth place, only New Jersey’s minimum wage rate incorporates annual wage increases tied to the cost of living.
Unpaid internships are common in many businesses throughout the country. Some interns enthusiastically accept unpaid opportunities to get exposure while others take unpaid internships because of a shortage of regular paid jobs. With the number of unpaid internship programs on the rise, interns need to know if they are entitled to be paid. This issue was given particular attention when unpaid interns working on the set of the film “Black Swan” filed a lawsuit for unpaid wages against Fox Searchlight Pictures. See Glatt v. Fox Searchlight Pictures, Inc.
In that decision, the court ruled that unpaid interns were “employees” covered by the federal FLSA and New York Labor Law, and therefore, should have been paid. The court stated that in order for a company to have an intern work without pay, the company must establish the following:
1. The internship needs to be similar to training that would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern is not there to do the work of a regular employee, but works under close supervision of existing staff;
4. The employer that provides the training gets no immediate advantage from having the intern and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. See U.S. Department of Labor, Fact Sheet #71: Internship Programs under the Fair Labor Standards Act (April 2010).
Unless the above factors are met, the court will likely rule that an intern should be paid.
The Glatt case is under appeal with the federal Second Circuit of Appeals in New York.
We will continue to monitor the developments in this area of the law.
On August 29, 2013, Governor Chris Christie signed New Jersey Assembly Bill No. 2878 into law. This law, effective December 1, 2013, prohibits your company from requiring or requesting you as an employee or an applicant to provide your user name or password for your personal social networking accounts, such as Facebook, Twitter or Instagram. In order for an employee to have this protection, the social networking account must be used only for personal communications unrelated to the business purpose of the company. Thus, although personal social media accounts are safeguarded under this Act, employers may continue to implement policies pertaining to the use of employer-issued electronic devices and require login information for social networking accounts that are used for business purposes.
The law also contains an anti-retaliation provision which prohibits an employer from retaliating or discriminating against an employee because he or she has (1) refused to provide or disclose any user name or password to a social media account, (2) filed a complaint of an alleged violation of this Act, (3) testified, assisted, or participated in any investigation, proceeding or action concerning a violation of this Act, or (4) otherwise opposed a violation of this Act. If the company violates this new law, it may have to pay damages and attorney’s fees to the employee or job applicant.
Governor Chris Christie recently signed into law the New Jersey Security and Financial Empowerment Act (“NJ SAFE Act”). The NJ SAFE Act became effective on October 1, 2013. This Act requires private employers, who employ 25 or more employees, to provide certain victims of domestic violence or sexually violent offenses up to 20 days of unpaid leave in a 12-month period. This Act also permits leave to be taken by an employee whose child, parent, spouse, domestic partner or civil union partner is a victim of domestic violence or sexually violent offense. To be eligible, the employee must have worked at least 1,000 hours during the immediately preceding 12-month period.
Under the Act, a leave of absence is permitted to be taken for a wide range of activities, which includes seeking legal assistance or medical attention, obtaining services from victim services organizations or counseling, and participating in legal proceedings or safety planning activities, among other things. The regulations also require employers to post notice of employee’s rights under the NJ SAFE Act in a conspicuous location in the workplace.
Lastly, it is important to be aware of the anti-retaliatory provision contained in the NJ SAFE Act. The Act prohibits an employer from discharging, harassing or otherwise discriminating or retaliating against an employee who has taken leave or requested to take leave that he or she was entitled to under the Act.