NJ and NY Employment Law Updates
Over the past few months, NJ and NY have passed a slew of new and amended employment laws. What follows is an update regarding recent and upcoming changes as a result. The below are brief points providing the general thrust of the new developments – each of the laws has various provisions affecting applicability and enforcement. We of course are happy to assist with compliance with any of the below.
In New Jersey:
Salary history ban: Effective January 1, 2020, NJ employers generally no longer may request a job applicant’s prior compensation history.
Medical marijuana protection: NJ now generally prohibits an employer from taking any adverse employment action against an employee based solely on the employee’s status as a registered medical marijuana patient. The law does not prohibit drug testing, but does provide new required procedures that must be followed when an employee or applicant has tested positive for marijuana.
Minimum wage: As of July 1, 2019, the minimum wage for most NJ employers is $10.00 per hour. Beginning January 1, 2020 and each year through 2024, that rate will increase by $1.00 (for a final rate of $15.00). For small employers, generally meaning those with five or less employees, the minimum wage remains $8.85 per hour, and as of January 1, 2020 will increase to $10.30, with varied yearly increases afterward to bring the rate to $15.00 by 2026. The preceding may be affected by certain changes in the consumer price index in the meantime. Employers that believe they are “small” should be certain that they are properly counting employees, as the counting requirements are more complex than merely considering the number of employees at any given time.
Wage violations: NJ’s new Wage Theft Act is in effect now. Among other things, the act requires employers to distribute to current employees and new hires a notice concerning their rights under New Jersey’s wage and hour laws (although the NJDOL has not yet released the model notice); extends the statute of limitations for wage claims from two years to six years; permits treble damages as a remedy for wage violations, along with an award of the claimant’s costs and attorney fees; includes new anti-retaliation measures; provides for personal liability of certain officers and agents of the employer; and creates a third-degree crime criminalizing an employer’s “pattern of wage nonpayment.” In light of the harshness of the new law’s remedies, we strongly recommend that every NJ employer audit and confirm the legality of its wage and hour practices (including, among other things, regarding the minimum wage, premium overtime pay, and exemptions from overtime pay).
In New York:
Salary history ban: Effective January 1, 2020, NY State employers generally no longer may request a job applicant’s prior compensation history. Please note that a similar law has been and currently is in effect in NYC.
Employee appearance and grooming: Effective now, NY has amended the definition of “race” in its anti-discrimination law to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” Protective hairstyles include, among others, “braids, locks, and twists.” As such, workplace grooming or appearance policies that ban, limit, or restrict natural hair or that disparately impact particular races or ethnicities now are unlawful. Also, effective October 8, 2019, employers may not discriminate against employees based on “any attire, clothing, or facial hair” reflecting a sincerely held religious practice.
Pay equity: Effective October 8, 2019, NY's pay equity law, which previously only concerned pay discrepancies with respect to gender, will extend to discrepancies with respect to any protected class of persons recognized under NY’s non-discrimination law (such as age, race, national origin, sexual orientation, and many others). The law requires equal pay among employees who perform “substantially similar” work, when the jobs being compared are “viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” This is a lower standard for an employee claim than the previous “equal work” standard, and the law permits an employee to establish a violation even if his or her position is not identical to the comparator's position.
Anti-discrimination: NY has (yet again) overhauled its anti-discrimination law to include, among other things, the following:
Effective now, at the time of hire and at annual training, the employer must provide employees with a copy of the employer’s anti-sexual harassment policy as well as the information provided at the anti-harassment training. It is expected that NY will further clarify the latter requirement.
Effective October 11, 2019, protection under the law will extend to independent contractors and domestic workers; an employee claiming a hostile work environment will need to meet a far lower standard of proof than previously, and certain classic employer defenses will be weakened; non-disclosure provisions in settlements of discrimination claims will be prohibited, other than by employee choice; a complaining employee may be awarded punitive damages; and either the employer or employee may be awarded its attorney fees if it is the prevailing party in the dispute (although the standard for an employer to be awarded fees is much more difficult than for an employee).
Effective January 1, 2020, there will be a notice requirement with respect to employee disclosure rights.
Effective February 8, 2020, the anti-discrimination law applies to all NY employers (rather than those with four or more employees, as is the case now).
Effective August 12, 2020, the statute of limitations to make a claim under the law will be extended from one year to three years.
Lactation room accommodation: The following concerns employers in NYC with four or more employees only (although there are NYS and Federal requirements that apply more broadly), and is in effect now. The law requires an employer to provide an employee needing to express breast milk with a lactation room (other than a restroom) and a refrigerator suitable for breast milk storage. An employer also must maintain a written policy with respect to, among other things, the right to request a lactation room and the procedure for doing so. NYC provides model policies and a request form here: https://www1.nyc.gov/site/cchr/law/lactation.page.
