Articles Discussing General Issues In New Jersey Labor & Employment Law.

The Jersey City Council has approved and adopted an ordinance amending the Jersey City sick leave law to make paid sick leave available to more workers in the second largest city in New Jersey.

Executive Summary: As we previously forecast and employers feared, New Jersey’s Supreme Court has dramatically expanded the state’s whistleblower law, the Conscientious Employee Protection Act or “CEPA.” In doing so, the Court held that so-called “watchdog” employees—who monitor, advise, or report to upper management concerning corporate conduct—may invoke the whistleblower protections of CEPA based upon the same consulting, advice, and reporting performed as part of their normal job functions. In rejecting more than a dozen appellate and federal cases dating back nearly a decade, the Court’s decision confirms that CEPA likely is the most far-reaching whistleblowing statute in the U.S.

Executive Summary: On the heels of an appellate decision providing employees a virtual how-to manual to misuse and exploit confidential employer documents and safely provide them to a competitor, New Jersey’s Supreme Court reversed course last week by suggesting that employees do not have competing rights to confidential employer documents in commercial or business disputes. State v. Saavedra (June 23, 2015), clarifies when a sweeping multi-part test should be used to determine when an employee may remove and retain confidential employer documents. That test should be limited to where the employee engages in self-help to further her prosecution of an affirmative claim against the employer brought under New Jersey’s Law Against Discrimination (“LAD”). This ruling should minimize the impact of Spencer Sav. Bank SLA v. McGrover (App. Div. March 5, 2015), which now arguably misapplied the same multi-part analysis to find a departing employee did not breach his duty of loyalty to his former employer after he absconded with documents asserted to be confidential and proprietary. For a more detailed discussion of this decision, please see our June 25, 2015 Alert, Appellate Decision Teaches New Jersey Employees How To Remove Confidential Documents and Trade Secrets from Employers.

A former school board employee who removed confidential documents to assist in her employment lawsuit filed against the school board may be criminally prosecuted, the New Jersey Supreme Court has ruled, affirming an Appellate Division decision. State v. Saavedra, No. A-68-13 (June 23, 2015). The Supreme Court’s decision could strengthen employers’ ability to protect their confidential documents, while forcing attorneys to seriously question the advisability of accepting and using documents from clients who may have improperly obtained them from their employers.

In New Jersey, The Opportunity to Compete Act, otherwise known as the “Ban the Box” bill, restricting employers from inquiring about an applicant’s criminal background during the initial stages of the application process, became effective March 1, 2015. (For more information, see our article, New Jersey Governor Christie Signs ‘Ban the Box’ Legislation.)

Executive Summary: The New Jersey Opportunity to Compete Act (the “Act”), known as the “Ban the Box” law, will go into effect on March 1, 2015. The Act prohibits employers from inquiring about an applicant’s criminal background during the initial employment application process. Employers should ensure that their applications and hiring processes are in compliance with the Act before it takes effect next month.

The New Jersey Supreme Court recently confirmed that the “ABC” test is the one to be used by employers to determine whether someone is an independent contractor under wage and hour laws, further eroding the ability of employers to classify individuals as independent contractors. In Hargrove v. Sleepy’s LLC (No 10-cv-1138), the Third Circuit certified a question of law to the New Jersey Supreme Court regarding the appropriate test to determine independent contractor status under the New Jersey Wage and Hour Law and Wage Payment Law. In a unanimous decision, the Supreme Court held the more restrictive ABC test to determine whether someone should be classified as an independent contractor.

Executive Summary: On January 13, 2015, the New Jersey Supreme Court issued a unanimous decision that will likely have a far reaching effect on employers by severely limiting their ability to classify workers as independent contractors. In Hargrove et. al. v. Sleepy’s, LLC, the Court held that the “ABC” test, derived from the New Jersey Unemployment Compensation Act, governs whether a plaintiff is an employee or an independent contractor for purposes of resolving a wage-payment or wage-and-hour claim under New Jersey law.

The City of Newark has released new guidance and “Frequently Asked Questions” to assist employers with compliance with the new paid sick leave time ordinance, which became effective on June 21, 2014.

Hospitals that require caregivers to be immunized against influenza are often sued to force them to exempt employees with religious objections from getting the shots, but last week a New Jersey court turned the argument for religious exemption on its head when it ruled in favor of a nurse whose objections to vaccination were purely secular.

The Supreme Court of New Jersey has agreed to decide whether employees who steal confidential documents from their employers to support whistleblower lawsuits are entitled to exemption from criminal charges stemming from the theft. State v. Saavedra, No. A-68-13 (certification granted Mar. 14, 2014).

On January 29, 2014, the Mayor of Newark, New Jersey signed into law an ordinance that requires private employers to provide paid sick time to employees. With this new law, Newark joins Jersey City, which enacted an ordinance mandating paid sick leave for private sector employees in September of last year.1 There are key distinctions between Newark’s ordinance and Jersey City’s ordinance. Notably, Newark’s ordinance requires paid sick time and does not provide the option of unpaid sick time; collective bargaining agreements may expressly waive the provisions set forth in the ordinance; and individuals who work for small employers (with fewer than 10 employees) are capped at 24 hours of paid sick time per calendar year.

The City of Newark has passed a “paid sick leave” ordinance mandating that all private employers in the City provide employees with paid sick time. Newark joins Jersey City as the only cities in New Jersey to enact such legislation and the eighth city nationwide to do so.

Executive Summary: Following Jersey City’s lead, New Jersey’s largest city is poised to enact an ordinance that would require employers to provide up to 40 hours per year of paid sick time to Newark employees.

An employee who removes or copies her employer’s documents for use in her whistleblower or discrimination case may be prosecuted criminally for stealing, a New Jersey state court has ruled. State v. Saavedra, No. A-1449-12T4 (App. Div. Dec. 24, 2013). The employee had taken highly confidential original documents owned by her employer, contending that she did so to support her employment discrimination suit. The Court’s decision could have serious implications on whistleblower claims in the state.