Quick Hits

• A bevy of new bills is making its way through the New Jersey Legislature and may become law in 2024.
• One of the most significant measures will expand the state’s Family Leave Act to cover all employers with five or more employees, down from the current thirty-employee minimum threshold.
• Another major proposal will require employers to include salary ranges in job advertisements and require employers to post promotional opportunities.

Domestic Workers’ Bill of Rights Law

Senate Bill 723 (which passed the Senate on December 21, 2023) eliminates the exclusion of domestic workers from the New Jersey Law Against Discrimination (NJLAD) and the state Wage and Hour Law, and creates new privacy rights for domestic workers, requires employers to enter into written contracts with domestic workers, institutes requirements for rest and break times, and creates several additional protections for domestic workers. Under the bill, a covered domestic worker is someone who works on a full-time or part-time, hourly or salaried basis and “works in residence for the purposes of providing any of the following services: caring for a child; serving as a companion or caretaker for a sick, convalescing, or elderly person, or a person with a disability; housekeeping or house cleaning; cooking; providing food or butler service; parking cars; cleaning laundry; gardening; personal organizing, or for any other domestic service purpose.”

Family Leave and Family Leave Insurance

Two bills would dramatically expand the scope of the state’s Family Leave Act (NJFLA) and Family Leave Insurance Law (NJFLI). Assembly Bill 5166 (which passed the Assembly on December 21, 2023) extends the job-protected leave requirements of the NJFLA to employers with five or more employees, replacing the current thirty-employee minimum threshold. The new threshold will be phased in over two years, first to twenty employees, then ten employees, and then ultimately to only five employees. The bill also provides that an employee who is eligible for both earned sick leave, and either Temporary Disability Insurance (TDI) or Family Leave Insurance (FLI) benefits, has the option of using either earned sick leave or TDI/FLI benefits (whichever is applicable), and may select the order in which the different kinds of leave are taken.

Assembly Bill 5703 overlaps to some extent with A5166, but also, among other things: (1) provides that FLI benefits are available when providing care because of certain exigencies arising out of active military service; (2) eliminates the seven-day waiting period for TDI benefits; and (3) requires, when employees take leave with TDI or FLI benefits, that employers maintain health insurance coverage during the leave period on the same terms as when the employees are working (notably, a requirement that is likely subject to an ERISA preemption challenge).

Another bill introduced earlier in 2023, Assembly Bill 5084, amends the NJFLA and the TDI Law to provide that an employee may take family leave, and obtain TDI benefits, to grieve the loss of a child due to death, miscarriage, or stillbirth, or the termination of a pregnancy for medical reasons. The bill also permits leave and benefits due to an unsuccessful adoption that had been pending and planned by the employee or due to an unsuccessful fertility treatment, including, but not limited to, intrauterine insemination and assisted reproductive technology.

Finally, while we are on the subject, note that the current maximum weekly FLI and TDI benefit will increase to $1,055 in 2024.

Height and Weight Discrimination

Senate Bill 2741 amends the NJLAD to prohibit employment discrimination on the basis of height or weight. The bill provides exceptions for bona fide employment occupational qualifications.

Nursing

Senate Bill 3135 expands the current nursing requirements of the NJLAD to provide that: (1) an employer is required to accommodate a lactating employee for as long as the employee desires; (2) lactating employees are entitled to reasonable break time each day paid at the employee’s regular rate of compensation; and (3) an employer must provide job restructuring, a modified work schedule, and a suitable room or other location with privacy, free from the intrusion of other employees or customers of the employer’s business other than a restroom, for the purpose of milk expression.

Pay Transparency

Following a growing trend in other states, Assembly Bill 3937 requires employers of ten or more employees, prior to making a promotion decision (defined as a change in job title and an increase in compensation), to make reasonable efforts to announce, post, or otherwise make known promotional opportunities that are advertised internally or externally to all current employees in the affected department. The notification requirement does not apply to any promotion for a current employee that is awarded on the basis of years of experience or performance. Nor does it apply to “a promotion on an emergent basis due to an unforeseen event.” Each failure to announce, post, or otherwise make known one promotional opportunity shall constitute a separate violation of this subsection.

The bill also requires an employer to disclose in each posting for promotions, new jobs, and transfer opportunities that are advertised by the employer, either externally or internally, the hourly wage or salary, or a range of the hourly wage or salary, and a listingof benefits and other compensation programs for which the employee would be eligible within the employee’s first twelve months of employment. Notably, the bill does not prohibit an employer from increasing the wages, benefits, and compensation identified in the job posting at the time of making an offer for employment to an applicant. Each failure to include the information required in this subsection in a particular job posting shall constitute a separate violation of this subsection.

The bill provides for statutory penalties and enforcement by the New Jersey Department of Labor (NJDOL) and private lawsuits.

Wage and Hour

Assembly Bill 5690 amends the New Jersey Wage and Hour Law to require the payment of a minimum wage to minors, deleting the current sub-minimum wage provisions, with only a few exceptions. The bill also clarifies that minors between sixteen and eighteen years of age who work up to fifty hours per week during the summer months are entitled to overtime pay, but it retains the overtime exclusion for minors or other employees working at summer camps, conferences and retreats operated by any nonprofit or religious corporation or association.

New Jersey’s minimum wage will increase by $1 to $15.13 per hour for most employees on January 1, 2024. Tipped workers’ cash wage will remain at $5.26/hour, with employers able to claim a $9.87 tip credit, an increase of $1.

In addition, Senate Bill 2970 requires the NJDOL to provide an individual, upon request, with a copy of their wage, employment, and unemployment compensation records and information that is possessed by the NJDOL.

Workplace Safety

Noting that “[t]he Occupational Safety and Health Administration (OSHA) in the United States Department of Labor has not adopted a heat stress standard,” Senate Bill 4243 requires the NJDOL to: (1) adopt a heat stress standard that establishes heat stress levels for employers that, if exceeded, trigger actions by employers to protect employees from heat-related illness and injury; and (2) adopt a requirement that each employer develop, implement, and maintain an effective heat-related illness and injury prevention plan for employees.

The heat-related illness and injury prevention plan is required, to the extent permitted by federal law: (1) to be developed and implemented with the meaningful participation of employees and employee representatives, including collective bargaining representatives; (2) to be tailored and specific to the hazards in the place of employment; (3) to be in writing in both English and in the language understood by a majority of the employer’s employees, if that language is not English; and (4) to be made available to employees, employee representatives, including collective bargaining representatives, and the NJDOL.

Under the bill, after initially creating a heat-related illness and injury prevention plan, employers are required to conduct an annual review to determine whether revisions to their plans are necessary. The bill further provides that the NJDOL may issue a stop-work order against the employer requiring cessation of all business operations if an employer is in violation of the bill’s provisions.

Several other bills that have not seen recent legislative action but remain pending and could be taken up at any time follow below.

Artificial Intelligence

Assembly Bill 4909 “regulates the use of automated employment decision tools during the hiring process to minimize employment discrimination that may result from the use of the tools.” The bill prohibits the sale of automated employment decision tools in the State unless: (1) the tool is the subject of a bias audit conducted in the past year prior to selling the tool or offering the tool for sale; (2) the sale of the tool includes, at no additional cost, an annual bias audit service that provides the results of the audit to the purchaser; and (3) the tool is sold or offered for sale with a notice stating that the tool is subject to the provisions of the bill. In addition, the bill provides that any person who uses an automated employment decision tool to screen a candidate for an employment decision is required to notify each candidate of the following within 30 days of the use of the tool: (1) that an automated employment decision tool, which is subject to an audit for bias, was used in connection with the candidate’s application for employment; and (2) the tool assessed the job qualifications or characteristics of the candidate.

Non-Disparagement Agreements

Assembly Bill 4521, which passed the Assembly in late 2022, amends the NJLAD to extend the law’s current restrictions on certain nondisclosure agreements (NDAs) to non-disparagement agreements, which are typically included in settlements of employment discrimination claims. The bill would reverse a recent judicial decision holding that non-disparagement clauses are not covered by the current NDA law.

Whistleblowers

Assembly Bill 5637, amends the New Jersey Conscientious Employee Protection Act (CEPA) to expressly provide “whistleblower” rights and protections to “C-Suite executives”—including a chief executive officer, chief operating officer, and chief financial officer—who object to, or refuse to, participate in an activity that they believe violates their fiduciary responsibilities.