In accordance with S2310, any person, company, corporation, firm, labor organization, or association which has ten (10) or more employees over twenty (20) calendar weeks and does business, employs persons, or takes applications for employment within the state must:

• Make a reasonable effort to announce, post, or otherwise make known to all current employees, new job or available promotion opportunities advertised internally or externally prior to filling the position.
• Disclose in each posting, either internally or externally, the hourly wage or salary, or range of salary and a general description of benefits and other compensation programs.

The new pay transparency law will take effect on June 1, 2025. While there are discrete exceptions for promotions based on years of experience or performance, or positions filled due to emergent circumstances, failure to comply could result in a fine of $300 for the first violation and $600 for subsequent violations. The Commissioner of Labor and Workforce Development will enforce the law, however there is no private right of action for employees.

With consideration to the June 1 effective date, New Jersey employers should consider reviewing their pay practices and recruitment policies; making sure those who oversee staffing and hiring are aware of the new requirements contained in the pay transparency law.

(This blog, prepared by Campanella Law Office, is for general informational purposes only and is not intended to convey specific legal advice, nor is it intended to create or constitute an attorney-client relationship.)

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Yesterday, the United States District Court for the Northern District of Texas ruled that the Federal Trade Commission (FTC) exceeded its statutory authority in promulgating the ban on non-competes and that the new rule was arbitrary and capricious.   Therefore, the Court held that the unlawful rule shall be set-aside; specifically stating that “[t]he rule shall not be enforced or otherwise take effect on it is effective date of September 4, 2024, or thereafter.” In addition, despite arguments from the FTC that the Court’s relief should be limited to named plaintiffs of the case presented, the Judge determined that the setting aside of the FTC’s action should have nationwide effect.   While it is expected that the FTC will appeal this decision, for now, the enforceability of non-compete agreements shall continue to be governed by state law.  

Nationwide Blanket Ban on Non-Competes Imminent: What Small Businesses Need to Know

This past April, the Federal Trade Commission (FTC) issued a final rule banning non-compete agreements with workers, nationwide. Motivated by growing concerns about the harmful effects of non-competes on American workers, the FTC determined that the prevalent use of non-competes in the United States amounted to unfair competition. Therefore, with limited exceptions, once the rule goes into effect, existing non-competes will no longer be enforceable and entering new non-competes with employers shall be prohibited.

A non-compete is a contractual term between an employer and a worker that prevents that individual from either working for a competing business or starting a competing business. The restriction is often applicable to a certain geographic area and for a certain time after the worker’s employment ends. The FTC expects the ban to generate over 8,500 new businesses each year and anticipates that it will result in higher worker wages, lower health care costs, and boost innovation.

The only exceptions to the new rule apply to existing noncompete agreements with senior executives and non-competes related to the sale of a business. There is also a carve-out for legal actions where the cause of action related to a non-compete accrued prior to the effective date of the ban. In addition, FTC’s new rule mandates that employers provide notice to all workers, that they will no longer be enforcing existing non-competes.

The effective date of the new rule is September 4, 2024, however, there are pending lawsuits challenging the ban; arguing that the FTC lacked the authority to issue the rule and that it is overbroad. The outcome of these pending actions could invalidate the rule entirely or, at the very least, delay the effective date. Therefore, this office will provide updates, as necessary. Meanwhile, business owners should consider working with a trusted advisor to understand how this new rule will affect existing contractual relationships and begin considering alternative options for protecting their investments.

(This blog, prepared by Campanella Law Office, is for general informational purposes only and is not intended to convey specific legal advice, nor is it intended to create or constitute an attorney-client relationship.)

The post August 21, 2024 – UPDATE:  Texas Federal Court Has Blocked FTC’s Prohibition on Non-competes from Taking Effect on September 4th, Nationwide. appeared first on Campanella Law Office.

Last Thursday, the Federal Trade Commission proposed a Non-Compete Clause Rule (the “proposed rule”) that would broadly ban the use of noncompete clauses in employment agreements.  The typical noncompete agreement prevents individuals from working for a competing employer, or starting a competing business, after their employment ends. They also often include time and geographic scope limitations.   The FTC believes this to be exploitative of the average worker and harmful to American innovation.

In a January 5, 2023 press release, the FTC declared that noncompete agreements not only harm competition by preventing workers from pursuing better opportunities but also by preventing employers from hiring the best available talent.  Applicable to companies across industries and spanning all income levels, the FTC believes the proposed rule will expand career opportunities for millions of Americans and increase wages by nearly $300 billion per year.  The FTC has also asserted that banning noncompete clauses nationwide will markedly close racial and gender wage gaps.

Grounded in Section 5 of the Federal Trade Commission Act which empowers the FTC to prevent businesses from using unfair methods of competition, the proposed rule would:

• Ban employers from entering noncompete clauses with their workers, including independent contractors.
• Require employers to rescind existing noncompete agreements with workers.
• Require employers to actively inform their employees that their noncompete contracts are no longer in effect.

Further, while the proposed rule would not generally apply to other types of employment restrictions such as non-disclosure agreements, these contractual terms could be implicated if the language is so overly broad as to have the same effect as a noncompete clause.

Although the proposed rule is still in its legislative infancy, employers should be aware that its implementation is a possibility and that, as a federal law, it would supersede state law.  You can read more about New Jersey’s position on noncompete clauses and recent proposed legislation regarding restrictive covenants, here.

Campanella Law Office will be monitoring the Non-Compete Clause Rule closely as it progresses. Meanwhile, if you would like assistance reviewing and narrowly tailoring the restrictive language contained in your employment agreements, contact us.

The post Proposed FTC Rule Seeks to Promote Economic Liberty: Why Your Noncompete Clause May No Longer be Enforceable appeared first on Campanella Law Office.

Last May, in the case of Savage v. Township of Neptune, the New Jersey Appellate Division determined that a 2019 amendment to the New Jersey Law Against Discrimination (NJLAD), prohibiting non-disclosure or confidentiality provisions in employment contracts and settlement agreements, did not extend to the inclusion of non-disparagement clauses.

Four months later, Assembly Bill No. 4521 (A4521) was introduced to close the loophole exposed by the Savage decision.  Even though non-disparagement clauses are commonly recognized by employers as an instrument to protect the value of a business’ reputation and goodwill, A4521 reinforces the intent of the existing law to prevent the inclusion of provisions in employment agreements that would have a chilling effect on pursuing claims of discrimination, retaliation, or harassment.

Specifically, the proposed legislation will clarify that:

A provision in any employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment, including, but not limited to, a non-disclosure or non-disparagement provision, or other similar agreement, shall be deemed against public policy and unenforceable.

If enacted, the bill will take effect immediately, and apply to all agreements drafted, renewed, modified, or amended after the effective date.

Campanella Law Office will be carefully monitoring A4521 as it progresses through the New Jersey Legislative process.  However, in anticipation of its enactment, if your business has any questions or concerns about existing employment agreements and how they might be affected, Contact Us.

The post Assembly Bill No. 4521: Savage decision regarding Non-Disparagement Clauses Prompts New Legislation appeared first on Campanella Law Office.

Last week, the Campanella Law Office blog addressed the importance of continued compliance with an employer’s requirement to provide conspicuous notices of employees rights in the workplace; particularly in light of several recent federal and state-level legislative updates.  Of course, complying with many of these requirements has become increasingly difficult as in-person work environments have pivoted to provide virtual and hybrid-workspace options in response to the pandemic.

Thankfully, the United States Department of Labor’s Wage and Hour Division (WHD) has recognized the challenges presented to American businesses by the COVID-19 pandemic. In an ongoing effort to support the country’s employers through pandemic recovery, WHD guidance, addresses compliance with notice and posting requirements when employees are working remotely; supporting flexibility through virtual communication and suggesting that it will consider electronic posting by employers using email or an internet or intranet website to satisfy the employer’s notice requirements under a variety of federal labor laws.

The WHD does clarify that that in most cases, electronic notices are supplemental to and not a replacement for the statutory and regularity requirements that employers post a hard-copy notice. Also, an acceptable electronic supplement varies depending on whether regulations require “continuous posting” or permit delivery of “individual notices” to employees.  Like their hard-copy counterparts, electronic notices must be readily available to all.  Whether an employer satisfies that requirement is, according to the WHD, fact dependent; looking at requiring an evaluation of access by affected individuals and an employers past practice regarding electronic notices, among other factors.

Moreover, employers should remain cognizant of notice and posting requirements relating to state and local-level legislation.  While most states have not issued their own guidance on electronic posting, applying the federal guidelines to state and local notice requirements is advisable in order to ensure compliance at all levels and until such time as specific state and local level guidance is available.

You can find a wealth of information regarding compliance with federal requirements on the Department of Labor’s website and specifically, its FirstStep Poster Advisor tool.  Moreover, updated information on notice and posting requirements can be found on the WHD’s website.

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As of the end of next month, employers will have been struggling to keep businesses alive amid the COVID-19 pandemic for two years.  In that time, in addition to constantly evolving health  safety protocols, there have also been a series of legislative developments that suggest a review of notice and posting requirements is due.

Two examples of recent New Jersey legislation that have altered the landscape of employment law include Governor Murphy’s landmark four-bill legislative package addressing worker misclassification and A681 (P.L.2021, c.248) which expanded prohibitions against age discrimination in the workplace.  You can read about each in more detail in our blog posts dated,  July 27, 2021, and December 10, 2021.     Insofar as each of these new laws altered the rights of New Jersey employees, it follows that the information contained in workplace notices and posters must be brought up-to-date.

As a general rule, most employee notification requirements include a mandate that employee rights be conspicuously posted in places that are easily visible to all employees.  Happily, the New Jersey Department of Labor maintains a number of resources to assist employers with compliance; including a comprehensive employer poster packet.  [https://www.nj.gov/labor/wageandhour/tools-resources/forms-publications/]. Moreover, because the federal legislature has also been busy this year, the United States Department of Labor maintains a similar database along with a FirstStep Poster Advisor tool to assist in determining which notices are required to be posted by a particular business.

Of course, we are also always available to help.  If you would like assistance reviewing your office policies and procedures and ensuring your notices and posters are compliant, Contact Us.

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On March 9, 2021, the New Jersey Supreme Court had its first opportunity to consider a pregnancy discrimination matter that was based on the New Jersey Pregnant Workers Fairness Act (the “Act”).  The Court was asked to consider whether the Act had been violated as a matter of law.  After careful analysis and with due consideration to the background and import of the relatively new piece of legislation, the Supreme Court upheld the Appellate Division’s ruling that the plaintiff raised a valid claim and that the case should proceed.

In Delanoy v. Township of Ocean, the plaintiff, a pregnant police officer, alleged that the differences between the defendant Township’s standard operating procedures for light duty work as they applied to pregnant and non-pregnant injured officers were discriminatory.  She also alleged that the defendant failed to accommodate her pregnancy.  The trial court dismissed the plaintiff’s claims, finding that no violation had occurred.  However, the Appellate Division disagreed.  The matter was then appealed to the Supreme Court wherein the Appellate Division’s ruling was affirmed.

In 2014, the Act, amended the New Jersey Law Against Discrimination (NJLAD) to include “pregnancy and breastfeeding” as a protected classification and add specific protections in the workplace for pregnant and breastfeeding women.  The amended legislation not only outlines an employer’s obligation to a pregnant or breastfeeding employee but also includes a list of possible accommodations.  Therefore, despite the finding that the plaintiff in Delanoy did not identify a specific cause of action under the Act, the Court recognized that three statutory causes of action do exist: (1) unequal or unfavorable treatment of a pregnant or breastfeeding employee; (2) the failure to provide a reasonable accommodation to a pregnant or breastfeeding employee; and (3) the illegal penalization of a pregnant or breastfeeding employee who has requested an accommodation.

Including New Jersey, 27 states currently have laws in place that require employers to provide reasonable accommodations for pregnant employees.  Moreover, H.R. 1065 was recently passed by the United States House of Representatives on May 14, 2021, and is currently  being reviewed by the Senate.  If passed the bill will create a national prohibition on employment practices that discriminate against making reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions. It will also set forth enforcement procedures and remedies for related unlawful employment practices.

In light of this ruling, if you would like assistance reviewing your standard operating procedures as they relate to the treatment and accommodation of pregnant and breastfeeding employees, Contact Us.

The post Courtroom Cue: New Jersey Supreme Court Addresses Pregnant Workers Fairness Act appeared first on Campanella Law Office.

On June 21, 2021, OSHA’s COVID-19 Emergency Temporary Standard (ETS)   was published in the Federal Register.  Fueled by concerns over divergent approaches to workplace safety taken by state and local governments, the healthcare industry specific regulations were issued in conjunction with updated guidance  for other industries.

The ETS is intended to universally protect healthcare workers most in danger of contracting COVID-19 by creating a Federal standard.  The regulations provide increased protections for high risk individuals working in settings where patients are either suspected of or confirmed to have coronavirus.

The ETS became effective upon publication and defines a 14-day window for compliance with most of its mandates.  Among them, the requirement that covered employers develop and implement a COVID-19 plan that includes a workplace-specific hazard assessment and a designated safety coordinator with the authority to ensure compliance.  Other key requirements include:

• Development and implementation of procedures for patient screening and management.
• Development and implementation of policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
• Development and implementation of policies and procedures related to personal protective equipment.
• Development and implementation of standard practices related to cleaning and disinfection.

Additional provisions involving physical barriers, ventilation and training have been assigned a 30-day compliance period.  Also, some requirements are only applicable to workplaces with more than 10 employees and specific exemptions exist for certain workplaces with fully vaccinated employees.  The ETS intentionally encourages vaccination by requiring employers to provide paid time off for vaccination and vaccine side effects.

To assist employers with compliance OSHA’s website  contains several helpful resources including a flow chart designed to clarify whether or not a workplace is affected.

Campanella Law Office will continue to monitor and provide updates on OSHA’s COVID-19 ETS as necessary. We will also address the updated guidance for other industries in a separate post.  For specific questions related to your business or for more information, please Contact Us.

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As the effects of New Jersey’s recent personal use cannabis legalization begin to percolate throughout the state, it is imperative that employers ensure that their practices and policies fairly recognize this evolving area of law.  When Governor Murphy signed cannabis reform into law last February, employers were already struggling to reconcile employee use of medicinal marijuana with their desire to maintain a drug-free workplace.  It is not unreasonable to expect that this struggle will be further confused by the new individual privilege of recreational use.

Therefore, as New Jersey awaits the publication of implementing regulations by the newly seated  Cannabis Regulatory Commission, and issues relating to medical marijuana use work their way thorough the judicial system, employers can begin to look to the state courts for some guidance.

• Wild v. Carriage Funeral Holdings Inc, 241 N.J. 285 (March 10, 2020): In this case, a licensed funeral director was diagnosed with cancer and prescribed marijuana under the NJ Compassionate Use of Medical Marijuana Act (“Compassionate Use Act”).  After being involved in a motor vehicle accident while working, and informing his treating doctor of his license to possess medical marijuana, he was fired despite the doctor’s conclusion that he was not under the influence at the time of the accident. The lawsuit was predicated on unlawful discrimination based on a disability, which required the use medical marijuana off-site.  Addressing the right to pursue a claim under the Law Against Discrimination, the New Jersey Supreme Court concluded that the NJ Compassionate Use of Medical Marijuana Act (“Compassionate Use Act”) did impact the plaintiff’s existing employment rights. Therefore, the Supreme Court held that when giving the plaintiff’s allegations “every reasonable inference of fact,” he had properly stated a claim.
• Hager v. M&K Construction, A-64 (N.J. Apr. 13, 2021): Affirming the appellate court’s decision of May 12, 2020, the New Jersey Supreme Court concluded that the defendant-employer was responsible for the reimbursement to an injured worker for their out-of-pocket cost for medical marijuana. The Court also ruled that the Compassionate Use Act, as applied to this case, is not preempted by the federal Controlled Substances Act.

Notably, Assembly Bill No. 21,  addressing the legalization and decriminalization of adult use cannabis, does address employer policies for the use and consumption of recreational marijuana; stating, among other things, that an employer is not required to accommodate the use of legal marijuana by employees while at work.  You can find a more in depth discussion of Assembly Bill No. 21 here.

Campanella Law Office anticipates that this will be a rapidly expanding area of law and will keep you informed of any important developments.  We strongly recommend that any current policies related to maintaining a drug-free workplace employee drug testing undergo review.  If you would like assistance drafting new or reviewing current policies pertaining to your business, please do not hesitate to Contact Us.

The post Case Law Alert: New Jersey Courts Address Issues Raised By Employee Use Of Marijuana appeared first on Campanella Law Office.

As 2020 comes to a close, many are striving to learn from the trials of this incredibly difficult year and make positive changes.  Aside from the COVID-19 pandemic, our country was challenged to confront the existing and equally insidious disease of systemic racism.  While the battle is far from over, we are happy to witness CROWN Acts gaining a foothold within our state and local governments throughout the United States and also making strides at the federal level.

New Jersey’s CROWN Act was signed and went into effect immediately on December 19, 2020.  The acronym stands for “Create a Respectful and Open Workplace for Natural Hair Act” and the act specifically addresses discrimination based on “traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.”  P.L. 2019, c.272 (2019).  The amendment to the Law Against Discrimination (LAD) eliminates any confusion or ambiguity regarding the scope of LAD as applicable to race discrimination stemming from such traits.

This past October, the City of Pittsburg and Allegheny County, Pennsylvania joined New Jersey and several other states in enacting its own CROWN Act and just one month prior to that, the United States House of Representatives passed a  CROWN Act (H.R. 5309), prohibiting discrimination based on a person’s hair texture or hair style if that style or texture is commonly associated with a person of a particular race or national origin.  H.R. 5309 is currently being considered by the United States Senate.

With this in mind, employers should review their workplace policies related to appearance and be certain that their standards of professionalism clearly relate to legitimate health and safety concerns.  While it would be ideal to not have any restrictions on appearance, those that do exist should be backed by objective evidence regarding their necessity.

If you would like assistance reviewing your workplace policies regarding appearance and hairstyles, please Contact Us.

The post No more “bad” hair: The CROWN Act passes the United States House of Representatives and continues to gain strength at state and local levels appeared first on Campanella Law Office.