What is employee misclassification?
Employee misclassification is when employers incorrectly label workers as independent contractors rather than employees to avoid paying taxes and other payments.Read More
What is employment law?
Employment law includes a wide variety of issues ranging from all areas of the employers and employee relationship. It includes the laws and rules regulating relationships between employees and employers.Read More
How do you prove wrongful termination?
If your contract lays out grounds for termination the employer cannot fire you on other grounds. The contract itself can help prove wrongful termination by showing the grounds acceptable for termination and any policy or procedure articulated for termination.
Additionally, to show that wrongful termination occurred you must show that you engaged in a protected action and that the protected activity was the reason for the termination.Read More
What is wrongful termination?
Wrongful termination arises when an employee believes the employer illegally fired him or her. This occurs when an employee is fired and that firing breaches an employment contract or employment law.Read More
Can I File for Unemployment if I Am on Strike?
In New Jersey, workers involved in labor disputes may have the option to file for unemployment. This legislation allows striking workers to collect these benefits if their employer breaks the stipulations outlined in their employment contract or collective bargaining agreement. Additionally, employees could be entitled even if the disagreement is not related to their company’s refusal to follow the employment contract’s terms. There is a mandatory 30-day waiting period for filing claims.Read More
What Are Discriminatory Interview Questions?
What Are the Federal Guidelines for Overtime Hours and Pay?
Can I Get Fired for Discussing Politics on Social Media?
Yes. New Jersey is an at-will employment state which means a private employer can terminate you for any reason or no reason at all. Therefore, if an employer concludes that your speech is causing other employees to feel uncomfortable or is harming or interfering with its business, you could be disciplined or terminated. This extends to posting on social media, wearing political clothing, pins, masks, etc. Make sure to read your employee handbook to find out what conduct violates your workplace rules.Read More
What Are the White Collar Overtime Exemptions from the Fair Labor Standards Act?
There are three types of white collar FLSA exemptions: executive, administrative, or professional.
A worker in one of these categories must satisfy both salary and duty requirements to be exempt from the FLSA overtime rules. Titles, such as manager, or salary do not make an employee automatically exempt. The employee must be paid on a salary basis at a minimum of $455 per week. Any employee paid on an hourly basis or commission only system does not satisfy the salary requirement for white collar exemptions.Read More
What Are the Reasons My Unemployment Get Denied?
If the DOL finds that an employee quit without good cause, that employee will not be eligible for unemployment benefits. Good cause is generally established by showing that the employee’s reason for quitting justifies the applicant’s unemployment status. Applicants who left voluntarily due to domestic violence, military spouse relocation or an unhealthy work environment will generally be considered to have quit with good cause.
Employees who were fired for misconduct such as insubordination, excessive absenteeism or coming to work under the influence of drugs or alcohol will not be eligible to receive unemployment benefits.Read More
What Is a Tip?
A tip is any money a customer voluntarily pays beyond the amount charged for products or services plus tax. Some employers, such as restaurants, add a mandatory service charge to bills for large parties or catered events. This designated service charge allows employers to keep the extra amount paid even if the customer thinks that by paying it, he or she is leaving a tip for an employee.
Is Getting Fired Over Email a Form of Wrongful Termation?
In the many states with at-will employment laws, employers are generally within their rights to fire a worker at any time, in any manner – including letter, phone call, or e-mail, provided the firing is not discriminatory or based on a person’s protected class status.
Can I Apply for Paternity Leave in NJ?
Yes. In 2009, New Jersey became the third state in the country to pass a law for paid family leave. Many mothers consider taking a leave from their jobs for the birth of a child, but fathers should know that they are also eligible to take paternity leave.Read More
What Is the NJ WARN Act?
The New Jersey Millville Dallas Airmotive Plant Job Loss Notification Act (NJ WARN) expands part of the Federal WARN Act by requiring notice even when the employment losses result from a sale of a business.
The NJ WARN Act also contains strict provisions with respect to job transfer circumstances and penalties for employers violating the Act.Read More
What Are the Cons of Arbitration?
Arbitration is extremely expensive. As is clear from the name, arbitration is also arbitrary. Lastly, arbitration can often be inconvenient as well.Read More
What Are the Pros of Arbitration?
Many people like arbitration because it is much faster than the New Jersey Court system. Arbitration is also much more straightforward than litigation. Finally, arbitration is confidential.Read More
Does the American Bar Association Have any Guidelines to Prevent Discrimination in the Courtroom?
The American Bar Association (ABA) has a rule that prohibits lawyers from discriminating against or harassing any individual based on race, sex, religion, disability, pregnancy, national origin, ethnicity, age, sexual orientation, marital status, or socioeconomic status. The rule protects counsel, defendants, plaintiffs, witnesses, or any individual involved in the process of practicing the law from sexist, derogatory, or offensive verbal or physical actions. These and other condescending or inappropriate gestures are now defined by the ABA as “harmful verbal and physical conduct that manifests bias or prejudice toward others.” Lawyers that knowingly engage in this type of behavior are in direct violation of the rule and subject to penalty.Read More
How Can Legal Agreements Silence Victims of Sexual Assault?
Forms of legal agreements may be misused to silence victims. One highly-publicized case is that of Harvey Weinstein, a Hollywood producer accused of sexually harassing various employees at his company for decades. He allegedly used non-disclosure agreements (NDAs) and confidential, out-of-court settlements to prevent these stories from being exposed. NDAs, out-of-court settlements, and arbitration agreements are all legal agreements that can hinder victims from speaking out publicly.
Can I Still File a Charge with the EEOC if I Believe that I Have Been Discriminated Against Based on My Age, Race, Sex, or Disability, Even If I Signed a Waiver Releasing My Employer from all Claims?
Yes. While your severance agreement may use broad language to describe the claims you are releasing (i.e., “all claims”), you are within your rights to file a charge with the EEOC if you believe you were discriminated against while you were employed or if you believe you were wrongfully terminated.Read More
What Can a Party to Mediation Expect?
Depending on the mediator, the parties may start in a joint-session, where the mediator talks to all parties about the process of mediation and what the goals of mediation are. Sometimes the mediator will ask the representation for each party to make a short statement of their client’s position. After this initial joint-session, the parties will break out into separate rooms for the majority of the mediation as the mediator travels back and forth between the parties. The parties may come together again at the end of mediation if the matter is resolved, to sign a mediation agreement and go through the terms of the agreement.Read More
What Is the Litigant’s Role in the Mediation Process?
The litigant plays a crucial role in the mediation process. While the mediator does not always request to speak with the litigant, the litigant should be prepared regardless. To that end, there are a number of things the litigant should do to prepare for mediation:
- Know your case
- Discuss how you feel
- How to dress
Am I a Member of a Protected Class?
What Is Mediation?
Mediation is an out-of-court process where the parties to litigation go before a neutral third-party to attempt to resolve their claims.Read More
What Do I Need to Know About Arbitration Agreements?
If you have signed an arbitration agreement and ultimately need to sue someone, you have waived your right to a jury trial. This means that even if you would like to bring a case in state court, you are not allowed to by operation of the arbitration agreement. In the event you attempt to bring a claim in the Courts of New Jersey, the opposing party can make a motion to enforce the arbitration agreement, and will likely be successful.Read More
What Is Arbitration?
Arbitration is an alternate form of dispute resolution. In arbitration, a party may file their claim with a private arbitration company, such as American Arbitration Association (AAA) or JAMS, Inc. The party does not file a case with the Courts of New Jersey. Instead of a trial of peers, arbitration involves a review and determination on the outcome of the matter by either an individual or panel of arbitrators. Like a trial, each side will have the opportunity to present their case. A determination will be reached by the arbitrator or panel which will be binding on all parties. The dispute cannot then be brought in court. It is fully and finally resolved through the arbitration process.Read More
What Is the Appeals Process if My Unemployment Application Got Denied?
Applicants who are initially denied may appeal their claims to the Appeal Tribunal of the New Jersey Department of Labor within seven days of delivery, or ten days of mailing, of the Notice of Determination. The Appeal Tribunal will then schedule a hearing which usually takes place over the phone.
Applicants should include a brief explanation of why they should receive benefits and may submit their appeal in person, by fax or by mail. Throughout the process, applicants should also be actively seeking work just as they would if their application was approved so that they may be eligible to receive retroactive benefits; if successful, claimants may receive current and retroactive benefits to compensate for the time of the initial denial.
What Are the Eligibility Requirements for Unemployment in New Jersey?
New Jersey applicants must have earned at least $8,300 during the base period of 12 months or have worked for at least 20 weeks, earning at least $165 a week. They must also have been out of work through no fault of their own. Also, for every week that an applicant claims benefits, he or she must be physically, mentally and legally able to work.
Applicants must additionally be actively seeking work and willing to accept suitable job offers. The DOL will consider an applicant to be actively seeking work if they have at least three employer contacts per week, including in person or over the phone contact as well as sending resumes. When deciding what constitutes a suitable offer, the applicant’s last job, job duties, distance from home and salary will be considered.Read More
What Wage and Hour Restrictions Are Outlined in the NJ State Wage and Hour Law?
New Jersey employers are required to pay at least minimum wage for hours worked up to 40 and then must pay at least time and a half for any hours worked over 40 in a week. Generally, the NJSWHL does not limit the number of hours an employee may be required to work and New Jersey employers may fire employees who do not comply with forced overtime.
Can My Employer Force Me to Work Overtime?
What Are the NJ Guidelines for Minors Receiving Breaks?
In New Jersey a mandatory break law applies to minors under the age of 18. After five consecutive hours of work, employees under the age of 18 must be given a 30-minute meal period. All other employees over the age of 18 are not subject to the mandatory break law, but rather only to company policy.
Does New Jersey Require Rest or Meal Breaks?
New Jersey employers are not required to provide employees with rest or meal periods, although they must still comply with federal law should they choose to do so. Federal law defines bona fide meal periods as rest periods, which are usually at least 30 minutes in duration.
The one exception is a mandatory break law that applies to minors under the age of 18.
How Do Confidentiality Agreements Work?
In business, NDA and other types of confidentiality agreements serve a valuable purpose. They prevent employees from sharing confidential, proprietary information that may jeopardize trade secrets and give competitors an unfair advantage. Confidentiality agreements typically include time restrictions on how soon an employee can begin working for a customer or competitor. They also protect any product or information workers produce during their employment
Does New Jersey Have a Law for Paid Sick Leave?
Yes. Bill A1827 allows workers in the private sector to earn an hour of sick leave for every 30 hours they work. Businesses of all sizes would have to allow up to 40 paid sick leave hours. The time could be used to stay home for reasons of illness, to care for a sick family member, to attend school conferences or meetings, or to recover from domestic violence. The few exemptions included in the bill are for certain construction employees, public employees who already have generous sick leave benefits, and per-diem health care workers.
What Is the Federal WARN Act?
Under the Federal Worker Adjustment and Retraining Notification Act (WARN), employers are required to provide 60 days advance notice of either a plant closing or mass layoff. This notice must be provided to the employees, any applicable unions, and government officials. The Act defines “plant closing” as a shutdown of a single site, which will result in the loss of employment for 50 or more employees within a 30-day period.
Additionally, a “mass layoff,” including a loss of employment of at least 33 percent of the workforce (with a minimum of 50 employees being affected); or a loss of employment of 500 or more employees at a single sight, within a 30-day period, is covered under the Act.
Can I Refuse to Sign My Employer’s Arbitration Agreement?
Employees who have read the arbitration agreement and agree to its terms can sign the agreement without an issue. However, those that do not agree with the terms should not sign the document without talking to their employer first.
Although it is possible that a flat-out refusal to sign could jeopardize employment, employees can try to negotiate to make the agreement more amenable.Read More
What is an Arbitration Agreement?
An arbitration agreement is a written contract in which parties agree to settle a dispute outside of court. Signing an arbitration agreement means that workers are essentially giving up their rights to sue over serious workplace issues such as:
- Sexual harassment;
- Gender and racial discrimination;
- Breach of contract; and
- Wrongful termination.
What Are the Criteria Used to Determine if I Am an Independent Contractor?
The “ABC” test is criteria used by both the New Jersey Unemployment Compensation Law and Wage and Hour Law to determine if a worker can be classified as an independent contractor.
Those criteria are that:
- The worker controls and directs his or her work, not the employer.
- The work is performed somewhere other than the primary business site and outside of all other places of business of the employer.
- The worker would not lose income if the employment ended, in other words, they have another primary source of income.
All three requirements must be met in New Jersey, or the worker cannot be classified as an independent contractor and must be paid as an employee.Read More
What is the Difference Between Independent Contractors and Employees?
An independent contractor generally enjoys far more autonomy than an employee. Independent contractors have the discretion to accept or deny an assignment as they see fit, they may set their own schedule, and frequently will provide their services to more than one company at the same time.
Conversely, employees provide their services at the direction of the employer. Unlike the independent contractor, employees lack the ability to make their own schedule, primarily report to their employer’s place of business during regularly scheduled business hours, and rarely perform similar services for another employer simultaneously.
The two classifications also differ in their tax treatment and overtime treatment. An independent contractor will not have any tax or FICA withholding, unlike an employee. Moreover, independent contractors are paid in accordance with the terms of their contract, and are therefore not entitled to overtime pay. Conversely, employees who are not managers or supervisors are entitled to overtime pay when working in excess of 40 hours in a given work week.
Individuals classified as independent contractors are also not afforded the same benefits as employees, as is demonstrated in Lowman. They receive no employment benefits, such as health and disability insurance. Additionally, independent contractors cannot seek unemployment benefits and also cannot file a workers’ compensation claim if they are injured on the job. They also enjoy far less protection from unfair work practices than an employee and may not avail themselves of state and federal anti-discrimination and workplace safety laws.Read More
Can I Be Wrongfully Fired Even if I am Employed At-Will?
Yes. There are multiple wrongful termination standards which protect employees in at-will employment relationships. This ensures that there are a multitude of scenarios in which a worker’s rights are protected, even for non-contracted work. For example, if a termination is a violation of public policy or of an implied contract it can be disputed.
Was My Termination a Violation of Public Policy?
Some of the most common occurrences of wrongful termination are violations of public policy. This means that the employer’s reasoning for firing their employee violates clear, well-established and well-outlined public policies of the state. For example, it is illegal in most states for an employer to fire an employee for filing a Workers’ Compensation claim. In addition, this covers most discrimination laws. If an employee is fired on the bases of race, religion, gender, sexual orientation or similar reasons, that is considered wrongful termination.
If I Speak Out About Misconduct By My Employer, Can I Be Terminated?
No. Employees who voice concerns about unsafe work conditions or object to illegal business practices cannot be fired on the basis of those complaints.
Known as whistleblowers, these workers are shielded from wrongful discharge by the New Jersey Conscientious Employee Protection Act (CEPA). Under the CEPA, employees are protected from retaliation such as demotion or termination after speaking out about misconduct by their employer.
What Role Does My Employment Contract Play In Helping My Wrongful Termination Case?
Your employment contract could potentially help your wrongful termination case. Another exception to at-will employment is the existence of an employment contract which sets forth:
- Acceptable grounds for termination; and
- Procedures and protocols to be followed by an employer when termination of employment will be sought.
What Does “At-Will” Employment Mean?
“At-will” employment means that an employer or employee may terminate the relationship at any time, without reason or cause. An employer may not, however, terminate a worker’s employment for unlawful cause, such as in violation of NJLAD, in retaliation for reporting harassment or discrimination in the workplace, or for whistleblowing. If you suspect you’ve been terminated for an unlawful reason, you may have grounds for a wrongful termination claim.
Am I Entitled To A Warning Before I Am Terminated?
No. You are not entitled to “three strikes” or any sort of warning before you are terminated. New Jersey is an “at-will” employment state.
If I Am Successful On A Wrongful Termination Claim Brought Under NJLAD, What Am I Entitled To?
Employees who prevail on a wrongful termination claim under NJLAD are entitled to:
- Reinstatement to their previous position;
- Back pay;
- Damages for pain and humiliation;
- Reimbursement for the loss of fringe benefits; and
- Restoration of health and pension benefits.
What Medical Conditions Are Protected by the FMLA?
The medical conditions protected under the FMLA are specific and include:
- Birth of a child and time to bond with the newborn
- Placement and bonding time with an adopted child or foster care child
- Care of a spouse, child, biological or adoptive parent with a serious medical or health condition
- FMLA protection covers leave for an employee’s own serious health condition
- Care of a seriously wounded or ill spouse, child, or parent active in the military, including the National Guard, Reserves, or other branches of the military
- In the case of leave requested for an active duty military family member, the laws allow for 26 weeks of unpaid leave
Am I Eligible Under the FMLA?
To be eligible under the FMLA, employees must have worked a minimum total of 1,250 hours for their employer to request FMLA leave. Under FMLA, employers with 50 or more employees within a 75-mile radius are required to provide 12 unpaid work weeks of leave to eligible employees annually.Read More
What is FMLA?
It is the federal Family and Medical Leave Act. Under the FMLA, eligible employees of covered employers are entitled to leave for specific family or medical reasons. This federal law provides eligible employees unpaid, job-protected leave for up to 12 weeks.Read More
What to Do if Your Employer Misclassified Your Employment Status?
If your employer has misclassified you as an independent contractor, it is possible to correct the classification. The simplest way to do this is simply to talk to your employer.
You can also contact the IRS directly. File form SS-8, which lets the IRS decide whether you are an employee or an independent contractor.Read More
What are the rights of employees which are denied to independent contractors?
According to New Jersey law, employees have the right to the following protections and benefits:
- Overtime pay for hours they work beyond 40 hours in a week
- Having the employer pay half of the employee’s Social Security and Medicare taxes
- Hourly pay of at least $12 per hour, as of 2021
- Paid breaks and sick leave
- Workers’ compensation coverage, such that your employer pays for the treatment of injuries you sustain on the job
- Unemployment benefits