Effective January 26, 2022, section 740 of the New York Labor Law (NYLL) will be expanded to enhance protections for employee whistleblowers.

Until now, the New York whistleblower protection law has been interpreted fairly narrowly and was limited. The old protections were limited to violations of law that created or presented a substantial and specific danger to the public health and safety. The new amendments to the law will expand employee protections in significant ways and is much broader.

Employer’s may not take any retaliatory action against an employee because the employee:

• Discloses or threatens to disclose to a supervisor or a public body any activity, policy or practice of the employer that the employee reasonably believes is in violation of any law, rule or regulation or poses a substantial and specific danger to the public health and safety;
• Provides information to, or testifies before, any public body investigating any such activity, policy or practice; or
• Objects or refuses to participate in any such activity, policy or practice.

If any employee is retaliated against for engaging in the above protected activities, he or she may sue in court and can seek remedies which include injunctive relief, reinstatement, lost compensation, a civil penalty of up to $10,000, punitive damages and attorneys’ fees.

Other notable changes include an expanded statute of limitations for filing a claim from one year to two years and expanded coverage that includes former employees and independent contractors.

These amendments to the NYLL are similar to the protections that already exist in New Jersey under the Conscientious Employee Protection Act (CEPA), which provides for broad protections for whistleblowers in New Jersey.

On October 5, 2021, New Jersey Governor Phil Murphy signed into law legislation that expands the New Jersey Law Against Discrimination (NJLAD) to expand protections for older employees.

Section 11 of the NJLAD has been removed which means that New Jersey employers can no longer refuse to hire or promote an employee on the basis of them being age 70 or older. Prior to the removal of Section 11, the NJLAD allowed employers to refuse to hire or promote any person over the age of 70. However, it did not allow an employer to otherwise discriminate against employees over 70 by, for example, terminating their employment.

Additionally, the NJLAD has broadened the remedies that employees can pursue to obtain relief if they are victims of age discrimination. Section 5 of the NJLAD now includes that if an employee is forced to retire because of age, he or she has a wide range of legal remedies provided by the applicable law. This allows a broader recovery and subjects employers to greater risk if they engage in unlawful age discrimination.

As people are living longer, it makes sense for them to remain in the workforce longer. If you have been subjected to age discrimination or forced to retire, you should speak to an attorney about your rights.

Hostile work environment is a frequently used and frequently misinterpreted phrase that has a specific legal definition. The New Jersey Law Against Discrimination establishes a hostile work environment exists when an employee can prove that the harassment he or she is enduring:

New Jersey courts have adopted the severe or pervasive test to determine whether an employee has been subjected to an unlawful hostile work environment. As discussed in the July 1 blog, this can include a single incident or repeated conduct. The determinative factor is whether a reasonable person of the same protected class would believe that the work environment has been hostile.

If you believe you are experiencing a hostile work environment because you are in one of the protected categories, you should take notes for yourself about what is being done or said. In addition, if your employer has put in place a procedure to complain to someone at work about the problem, such as a human resources manager, you should consider making a complaint. It is also a good idea to speak to an employment lawyer for guidance.

The New Jersey Supreme Court unanimously held that a supervisor’s two instances of offensive slurs were sufficient to support a hostile work environment claim.

On June 16, 2021, the Court held in Rios Jr. v. Meda Pharmaceutical, Inc., that two offensive slurs from a supervisor were severe and pervasive enough to establish a hostile work environment claim under the New Jersey Law Against Discrimination (“NJLAD”).

Plaintiff, Rios, is a Hispanic male who had been working at Media Pharmaceutical, Inc. since May 2015. On two occasions his direct supervisor used an ethnic slur while speaking to him. Rios brought the issue to Human Resources but they did not take any action.

The Court held that when viewing the evidence in the light most favorable to the plaintiff, a rational jury would be able to conclude that the slurs uttered by a direct supervisor were sufficiently severe or pervasive to create a hostile work environment. The Court took into consideration that the plaintiff reported the incident to his employer and the employer took no action. This decision significantly broadens the scope of the severe and pervasive standard necessary to assert a claim under the NJLAD.

Most home health care workers must be paid minimum wage and overtime pay. Minimum wage in New Jersey is $12.00 per hour and in New York City, it is $15.00 per hour. If a worker works more than 40 hours in a week, they are entitled to overtime pay which is one and a half times their regular rate of pay for each hour over 40. If overtime pay is due, the worker must receive it for every hour worked over 40 hours in a workweek.

Home care workers could be direct hires of an individual or family or they can be hired through a home health care agency. There are some exceptions to the minimum wage and overtime pay requirements for certain types of health aides. The type of work that the aide regularly does can affect whether or not the aide should be exempt from being paid minimum wage and overtime.

For example, there are certain exemptions to overtime pay for live-in home care workers. A live-in home care worker is entitled to minimum wage, but is not required to receive overtime pay in the following three special circumstances: (1) if they permanently live in the home of the person they are caring for seven days per week; (2) live there for extended periods of time, which is considered to be either five days a week for 120 hours or more; or (3) live in the home for five consecutive nights for less than 120 hours per week. A live-in worker does not have to be paid for time he or she spends eating or sleeping or other periods in which she has no duties to perform. When starting a new home care assignment it is very important to establish an agreement regarding a schedule concerning sleep time, meal breaks and other periods of off-duty time.

There are additional pay exemptions applicable to home health aides who provide companionship services. The companionship service exemption only applies if (1) the home care worker spends a maximum of 20% of the working time assisting with personal care such as bathing, dressing, toileting, grooming, cooking, cleaning, etc.; (2) the worker does not perform any medically related tasks that are usually done by a nurse; or (3) the worker does not perform any general household work for other members of the household besides the one that the worker is taking care of, such as laundry or cooking.

Also, some home care workers are paid a daily or weekly rate instead of an hourly wage rate. Just because an employee is compensated with a daily or weekly rate, and not an hourly wage rate, does not mean that employee is not entitled to overtime pay. All eligible employees are entitled to overtime pay. If you are not paid by the hour, in order to calculate your overtime pay rate, you divide your total weekly salary by the number of hours you worked in the week, which gives you your regular hourly rate. Then you multiply the hourly rate by 1.5 and multiply that times the number of hours over 40 that you worked in that week, which gives you the total overtime pay you are owed for that week.

Lastly, the law requires home health care agencies to maintain accurate records of each employee’s daily and weekly hours worked per week, but many agencies do not do so. This makes it more difficult for employees to make a claim against their employer for unpaid wages. Therefore, it is important for each employee to keep their own records of the time they begin and end work each day in case the employee needs to make a claim for unpaid wages. The employee should also keep records of the total pay they receive each week, whether it is by check, cash or both.

There has been much debate in New Jersey on whether arbitration agreements are enforceable in discrimination, harassment and retaliation claims brought under the New Jersey Law Against Discrimination (NJLAD). The New Jersey District Court settled this matter in N.J. Civil Justice Institute v. Grewal in March 2021.

Employers frequently require employees to sign an arbitration agreement at the start of their employment. An arbitration agreement waives an employee’s right to litigate claims against his or her employer in court. Instead, the claims would be heard in an arbitration, which is a less formal dispute resolution process.

Employers favor arbitration over the court for several reasons that are detrimental to the interests of employees. First, arbitration is done in private so the employer avoids the negative publicity that may result from a public court case. Second, arbitration limits the employee’s right to discovery, which is the right to obtain all information relevant to the claim. Third, an employee may have perhaps one arbitration in his or her lifetime while a large company will have many. Since the arbitrator is selected and paid by the parties there is a belief that arbitrators favor employers to obtain repeat business. Fourth, an arbitration decision is final and there is no right to appeal.

In March 2021, the New Jersey District Court ruled in N.J. Civil Justice Institute v. Grewal, that the Federal Arbitration Act (FAA) overrides the NJLAD’s ban on arbitration clauses. Therefore, arbitration clauses are permissible for claims brought under the NJLAD.

Consequently, the NJLAD does not provide employees with a defense against enforcing arbitration clauses for their claims related to discrimination. However, there are other flaws that could make an arbitration agreement unenforceable. For example, confusing or vague wording could make an arbitration agreement unenforceable. If you believe you have a claim against your employer, but may be subject to an arbitration agreement, it is a good idea to contact a lawyer to determine whether you may be able to bring your claim in court.

There is a practice that some employers utilize that employees need to understand. It is known as a “No-Fault Attendance Policy.”

These policies provide for automatic discipline, up to termination, after a specified number of absences or “occurrences” within a certain period of time, regardless of the reasons for the absences.

No-fault policies are becoming common because they are easy to implement and they assure a uniform application of policies to all employees. However, there are specific issues that arise when implementing such policies that can violate employee rights.

If the employees’ absence qualifies for leave under the Family Medical Leave Act (“FMLA”) or if it is for a disability within the meaning of the Americans with Disabilities Act (“ADA”), then there are special considerations that must be put into place. The EEOC and the courts have determined that an employer may not apply the no-fault policy to an employee who needs leave that is covered under the FMLA or ADA. Thus, those days off may not count as “occurrences.”

Therefore, if you are terminated for violating a No-Fault Attendance Policy based on legally protected absences, you should consider speaking to an employment lawyer.

The 2021 minimum wage for most employees in New Jersey will be $12 per hour — an increase from $11 per hour in 2020.

The minimum wage for tipped employees is increasing to $4.13 per hour, up from $3.13 per hour in 2020.

There are exceptions to the $12 per hour minimum wage requirement such as employees in “training” seasonal employees, “small” employers (fewer than 6 employees), agricultural workers and direct care staff at long-term care facilities.

In training employees are to receive a “training wage” that is equal to at least 90% of the minimum wage for the first 120 hours of work.

Seasonal employees and small employers with fewer than six employees will have a minimum wage of $11.10 per hour in 2021, up from $10.30 in 2020.

Agricultural workers have a minimum wage of $10.30, which is the same as 2020.

As of November 1, 2020, direct care staff members in long-term health care facilities began to receive a minimum wage that is $3.00 higher than New Jersey’s current minimum wage which brings them to a minimum wage of $15.00 in 2021.

By 2024, the minimum wage rate in New Jersey will reach $15 per hour with a one dollar increase each year.

Effective January 1, 2021, New York City is expanding its paid sick leave law. The amendments to the NYC Paid Safe and Sick Leave Law (“NYCPSL”) provide the following:

Further, NYC employers are required to note the amount of sick and safe time accrued and used during each pay period as well as each employee’s total balance accrued sick and safe time on each employee’s pay statement.

Sick time is defined in § 20-914a as time for absence from work due to an employee’s or a family member’s mental or physical illness, injury or health condition or need for medical diagnoses, care or treatment of a mental or physical illness, injury or health condition or need for preventative medical care or closure of an employee’s place of business by order of a public official due to a public health emergency or such employee’s need to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.

Safe time is defined in § 20-914b as time for absence from work due to any of the following reasons when the employee or employee’s family member has been the victim of domestic violence.

This expanded sick leave is in effect as the COVID outbreak continues to surge through the winter months. The NYCPSL is broad and includes time off needed to take the COVID vaccine once it becomes available and time off to care for a health condition of the employee’s family member.

Additionally, an anti-retaliation provision was added to the NYCPSL. The anti-retaliation provision is implicated when an employee’s use of NYCPSL is a motivating factor for an adverse employment action. The NYCPSL also permits the NYC Department of Consumer and Worker Protection (“DCWP”) to bring pattern or practice enforcement actions with expanded subpoena and investigative powers, that could incorporate civil penalties for each employee who was not permitted to utilize NYCPSL.

These benefits are on top of the sick leave employers must provide under existing state and federal law.

The Covid-19 outbreak continues to lead to new laws and regulations in the workplace. The most recent is Executive Order 192, issued by New Jersey Governor Phil Murphy which took effect on November 5, 2020. This Order requires employers with employees who are physically present at a workplace to adhere to strict safety requirements.

The Executive Order provides that every business, non-profit organization and governmental and educational entity must:

Two important measures included in the Executive Order are that the employer must:

Governor Murphy along with the New Jersey Department of Health and the Department of Labor and Workforce Development put these standards in place and have created a “COVID-19 Worker Protection Complaint Form” available on the New Jersey Department of Labor website, where you can anonymously report unsafe conditions.