The Member Action Center run by the New Jersey Business & Industry Association (NJBIA) tackles business questions every day. Our hotline (1-800-499-4419) and email address (member411@njbia.org) are always buzzing with requests for help from businesses just like yours. Below we summarize the most common human resource (HR) questions we get.
Where can employers get free posters to notify workers of their rights under various laws?
A New Jersey employer poster packet is available by clicking here, and a federal employer poster packet is available by clicking here. Please note posting requirements vary by law; some employers may or may not be required to post a specific notice depending on the size of their companies and other factors.
Does New Jersey prohibit employers from making job offers that are dependent on applicants passing drug tests?
No, but employers should proceed with caution. An employer may run into trouble based on who is tested or how the test is conducted. Best practices include using the least intrusive tests necessary; adopting a policy to keep results confidential; informing the applicant about the testing program itself, including who will be tested, how samples will be analyzed, and what consequences there will be for failing or refusing the test; and, providing information about the effects of drug use. (Laws may vary in other states.)
Does New Jersey prohibit employers from considering credit history?
No, although state legislation is pending, it has not been enacted in New Jersey. Even so, relying on credit history could still carry risks. Much like it does with criminal background checks, the US Equal Employment Opportunity Commission (EEOC) takes the position that credit checks may be discriminatory unless the information being considered is “job related” and “consistent with business necessity.” Also, employers who purchase credit reports from third-parties (usually the only way to get them) must follow state and federal law on their uses and required notifications for applicants.
What should employers do when facing audits?
Consult with counsel. NJBIA cannot provide specific legal advice. However, an attorney should be able to explain the process and may be able to lessen fines and penalties associated with possible violations.
When are employers required to pay overtime?
Overtime must be paid at a rate of time and one-half times the employee’s regular rate of pay for each hour actually worked in excess of 40 hours in the workweek, with the exception of certain salaried employees who meet the definition of an executive, administrative or professional.
Do employers automatically have to pay overtime for employees who work on holidays and weekends?
Generally speaking, the fact that an employee has worked over a holiday or weekend in and of itself does not require the payment of overtime (provided that the employee has not worked in excess of 40 hours in the workweek). However, special holiday or weekend pay may be required as a result of a company policy, collective bargaining agreement, or individual contract of employment.
Do employees need to provide two weeks’ notice when they leave voluntarily? Do employers have to provide two weeks’ notice for terminations?
Generally speaking, New Jersey is an at-will employment state. This means that either the employer or employee can terminate the relationship at any time with or without notice. There are, however, some exceptions including where federal and state law comes in to play, and where there is an employment contract or collective bargaining agreement in place.
What are some best practices to reduce getting sued when terminating an employee?
The best course of action is almost always to consult with an attorney. There is always some risk of liability, which can be mitigated with proper legal advice. It is also extremely important to have written documentation that is accurate and objective. All employment decisions should be performance-based and not based on other issues including, but not limited to, pregnancy, race, religion, sexual orientation, gender, age, etc. (These classifications may support discrimination claims in violation of several laws.) Any layoffs should be done because of a legitimate business necessity as opposed to an excuse to get rid of poor performers.
Under which laws can employees take leave?
There are eight separate federal and state statutes that may guarantee leave time or partial wage replacement for workers under certain circumstances (not counting local sick leave ordinances). Employers in New Jersey may be covered under the Americans with Disabilities Act (ADA), the federal Family and Medical Leave Act (FMLA), New Jersey Family Leave Act (NJFLA), New Jersey Family Leave Insurance (NJFLI), New Jersey Law Against Discrimination (NJLAD), New Jersey Security and Financial Empowerment Act (NJ SAFE Act), the New Jersey Temporary Disability Benefits (TDB) law, and the New Jersey Workers’ Compensation Act (WCA). Local sick leave ordinances may also apply.
Generally speaking, which leave laws apply to which employers?
- ADA: Private employers with at least 15 employees, and all public agencies.
- FMLA: Private employers with at least 50 employees for at least 20 workweeks in the current or preceding calendar year at one or more worksites within 75 miles. All public agencies.
- NJFLA: All employers with at least 50 employees working at least 20 workweeks over the past 12 months. (Employees outside of New Jersey are included in the count.)
- NJ FLI: All employers (regardless of size) who employ one or more individuals and pay wages of at least $1,000 in a calendar year.
- NJLAD: All public and private employers (except federal employers) regardless of size.
- NJ TDB: With very limited exceptions for some governmental employers, public and private employers subject to the New Jersey Unemployment Compensation Law.
- NJ SAFE Act: Private employers with 25 or more employees for each working day during each of 20 or more calendar workweeks. All public employers.
- WCA: All New Jersey employers, not covered by federal programs.
(This list does not take into account local sick leave ordinances, company policies, labor contracts, and sometimes even individual contracts of employment that may dictate leave.)
Don’t see your question asked? Don’t worry. We’ve probably gotten it before. Contact us anytime at 1-800-499-4419 or member411@njbia.org for help.
DISCLAIMER: This article is provided for informational purposes only, specific to New Jersey based employers. It does not constitute legal advice, nor has it been written by an attorney. NJBIA urges its members to always consult an attorney to ensure that they are in compliance with applicable laws.
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