Here are some recent doings from the NJ employment law scene that employers should know about.
Assembly bill A2648 has been signed into law by Governor Christie. The new law prohibits employers from taking retaliatory action against employees who believe that they have been the victim of pay discrimination from making inquiries, including of other employees, about their compensation and benefits. Note that the law does not give employees free rein to conduct fishing expeditions into a company's pay practices. The protection from discipline only extends to inquiries made “in a reasonable belief . . . that the purpose of the request . . . was to assist in investigating the possibility of the occurrence of, or in taking legal action regarding, potential discriminatory treatment concerning pay, compensation, bonuses, other compensation or benefits.”
Assembly bill A2647 imposes another posting requirement upon employers. Here the magic number is 50. All employers with 50 or more employees must “conspicuously post notification . . . detailing the right to be free of gender inequity or bias in pay, compensation, benefits or other terms or conditions of employment under the ‘Law Against Discrimination.'” Approved language will eventually be found on the website of the Department of Labor and Workforce Development, but was not yet posted (sorry!) when last we looked. Companies with 49 or fewer employees do not have to post this information, but counting numbers of employees can be tricky, so if your company is approaching 50, check with an attorney to see if you could be subject to this requirement.
Is she an employee or is she an independent contractor? That's a question that employment attorneys are asked all the time. In the context of the wage and hour laws, it is never been conclusively answered by the the courts of New Jersey. Until now. In Hargrove v. Sleepy's, an unpublished decision, the United States District Court for the District of New Jersey imported what is known as the Darden test from ERISA to find that plaintiffs were independent contractors rather than employees, and thus to rule against them under the Wage and Hour laws. On appeal, the United States Court of Appeals for the Third Circuit certified the issue to the Supreme Court of New Jersey, noting that the question is both novel and determinative of the lawsuit in question. We won't hazard a prediction at this time. But we will keep you informed.
Finally, a little cautionary tale for management side attorneys. In EEOC v. Faps, Inc. the EEOC brought suit on behalf of 28 claimants. We won't bother you with what they were complaining about – that's not important here. What is important is that the employer's attorneys hired private investigators to interview the claimants without notifying EEOC in advance. The EEOC asserted that the defense attorneys had committed an ethical violation, specifically a violation of RPC 4.2, which prohibits ex parte communications with represented parties. US Magistrate Judge Douglas Arpert did not rule on that charge, but found that by directing investigators to engage in ex parte interviews of claimants, counsel had engaged in “some level of wrongdoing.” The court ordered the defendant to turn over all documents and notes related to the interviews. Lesson: be very sure that a party is not represented by counsel if you decide to interview him, and instruct your investigator to discontinue the discussion immediately if he discovers that there is representation.
So far we employment lawyers have had a pretty interesting start to September 2013.