DISCLAIMER: The materials on this page are provided for informational purposes only, specific to New Jersey based employers. They do not constitute legal advice, nor have they been written by an attorney. They are intended, but not promised or guaranteed to be current, complete, or up-to-date and should in no way be taken as an indication of future results. You should not act or rely on any information contained on this page without first seeking the advice of an attorney.
- 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 here, and a federal employer poster packet is available by clicking here. Please note that posting requirements vary by law; that is, some employers may or may not be required to post a specific notice depending on the size of their companies and other factors.
- What are the 2017 maximum weekly benefit rates for New Jersey social insurance programs and what is the taxable wage base?
The taxable wage base for Unemployment Insurance, Temporary Disability Insurance, and Family Leave Insurance (FLI) is $33,500. Maximum weekly benefit rates appear below:
- 2017 Maximum Workers’ Compensation weekly benefit rate: $896
- 2017 Maximum Unemployment Insurance weekly benefits rate: $677
- 2017 Maximum Temporary Disability Insurance weekly benefit rate: $633
- 2017 Alternative earnings test amount for UI and TDI: $8,400
- 2017 Base week amount: $168
Click here for more information about employer tax rates.
- 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.
Wage & Hour
- 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.
- What are the exceptions to paying overtime? Are there any differences at the state and federal level?
In 2011 New Jersey adopted – with minor exceptions – the federal white collar overtime exemptions (the administrative, executive, professional, and outside sales exemptions). The standards for determining these exemptions are discussed in an NJBIA Fast Facts which is available by clicking here.
- 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.
- What are the risks of using independent contractors or freelancers instead of bringing on new employees?
Employers must ensure that the person hired actually functions as a contractor and not an employee. Worker misclassification occurs when an employer hires a worker and incorrectly (whether intentionally or unintentionally) treats that person as an independent contractor rather than an employee as required by law. If federal or state authorities find that an employer has misclassified one or more employees, the criminal, legal and financial penalties can be severe. The fact that a worker explicitly agrees to be treated as independent contractor has no bearing in determining misclassification. For more information, click here.
- Where can employers go for answers to more wage and hour questions?
Hiring & Firing
- Does New Jersey prohibit employers from considering criminal history?
On August 11, 2014, Governor Chris Christie signed the “Opportunity to Compete Act,” P.L. 2014, c. 32, which regulates the consideration of criminal history by New Jersey employers with 15 or more employees in making hiring decisions. As of March 1, 2015 (the act’s effective date), most New Jersey employers must wait until after the first interview to ask about criminal history. Specifically, the law states that an employer cannot make an oral or written inquiry into an applicant’s criminal record until after the initial employment application process, “ending when an employer has conducted a first interview.” To provide employers with some flexibility, the interview can be in person or “by any other means” such as over the telephone.There are some exemptions to the law. The EEOC argues that considering arrest and conviction records can have negative consequences on some groups and may be discriminatory unless the information being considered is “job related” and “consistent with business necessity.” For more information, click here.
- 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.
- 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.
- Do employers have to provide advanced notice when shutting down facilities or locations or conducting layoffs?
- 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. Employers in New Jersey many 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 Insurance (TDI) 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 TDI: 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.)
- Do all of the leave laws provide job protection?
Technically speaking, the laws either provide a protected leave entitlement or compensation replacement. For instance, an employee who takes leave under the FMLA or NJFLA is generally entitled to be to be restored to their position (or to a position equivalent in status, pay, benefits, etc.) once their leave expires (with limited exceptions). In contrast, FLI and TDI are income replacement – not job protection – statutes. As such, they do not require employers to hold positions for any period of time. In many instances, however, entitlements under the various laws may run concurrently. This means that an employee’s job may be protected under the NJFLA or the FMLA while they are receiving compensation through FLI and TDI. It is critical that employers have a thorough understanding of the interplay of the eight laws listed above – as well as their internal policies and contractual obligations – before taking any type of adverse action.
- For what reasons can employees exercise their rights under each employee leave law?
The uses, benefits, eligibility requirements, tax implications, etc. of each law varies greatly. Through its Fast Facts series, NJBIA has prepared general information on the provisions of many of these laws. The Fast Facts that are currently available on employee leave appear below:
- Leave Law for Victims of Domestic Violence and Sexual Assault: (NJ SAFE Act)
- Understanding New Jersey’s Temporary Disability Benefits Law (TDI)
- Family and Medical Leave
- Expansion of the Federal ADA
Are other resources available on the various leave laws?
Which municipalities now have sick leave ordinances?
- Bloomfield Ordinance, effective June 30, 2015
- East Orange Ordinance, effective January 6, 2015
- Jersey City Ordinance, effective January 24, 2014
- Newark Ordinance, effective May 28, 2014
- Passaic Ordinance, effective December 31, 2014
- Paterson Ordinance, effective January 7, 2015
- Irvington Ordinance, effective January 28, 2015
- Montclair Ordinance, effective March 5, 2015
- Trenton Ordinance, effective March 4, 2015
- Elizabeth, effective March 2, 2016
- Plainfield, effective July 15, 2016
- New Brunswick, effective May 5, 2016
- Morristown, currently delayed effective date