The past year saw many state legislatures and regulatory agencies resume their focus on non-COVID-19-related issues, and New Jersey was no different.
There are several developments from 2022 that New Jersey employers should keep in mind when reviewing and updating their workplace policies and protocols in the new year. For example, by way of highlight and summary, New Jersey’s 2022 employment-related measures included the following:
- The New Jersey Division on Civil Rights (DCR) issued updated posters that all New Jersey employers, housing providers, health care providers, and places of public accommodations must display, including a revised New Jersey Law Against Discrimination (NJLAD) poster and New Jersey Family Leave Act (NJFLA) poster (see our previous blog post).
- The state gave New Jersey health care workers new job protections, including continued employment for at least four months following a change in control of their health care entity employer without any reduction in their wages and benefits—such as paid time off, health care, retirement, and education benefits. A “change in control” includes sales, transfers, assignments, mergers, and reorganizations and is deemed to “occur on the date of execution of the document effectuating the change” (see our previous blog post).
- The Legislature acted to revise the effective date for the 2020 amendments to the Millville Dallas Airmotive Plant Job Loss Notification Act (the “NJ WARN Act”), which were postponed due to the COVID-19 pandemic. Unless vetoed, the amendments will now take effect 90 days after Governor Phil Murphy signs A4768 or if no action is taken, April 29, 2023 (for a summary of the amendments, see our previous article).
- For employers that use tracking devices on vehicles used by employees, a notice requirement took effect on April 18, 2022, obligating employers to notify employees before using an electronic or mechanical device that is designed or intended to be used for the sole purpose of tracking movements (i.e., not mileage counters, odometers, or other methods of documenting employee expense reimbursement).
- The New Jersey Cannabis Regulatory Commission (NJCRC) issued interim guidance regarding the use of a Workplace Impairment Recognition Expert (WIRE) to detect and identify an employee’s use of or impairment from cannabis or other intoxicating substances. The NJCRC also released a template titled “Reasonable Suspicion Observed Behavior Report” that employers may, but are not required to, use when determining whether to conduct workplace drug testing.
- As we previously reported, the scheduled change to the state’s minimum wage raised the rate to $14.13 per hour for most employees as of January 1, 2023.
In addition to updating any outdated NJLAD and NJFLA posters and notifying employees of tracking devices on vehicles used by employees, New Jersey employers should use the start of a new year as an opportunity to ensure that their workplace posters and employee notices remain in compliance.
Satisfying Notice and Posting Requirements
New Jersey mandates that employers display a variety of official posters informing employees of the law relating to employee rights and employer responsibilities. Failure to comply with these requirements may result in monetary fines and other penalties. Generally, to ensure compliance, an employer must post the most recent version of the mandated posters in a conspicuous location, i.e., in locations accessible and easily visible to all employees and applicants for employment, such as in a lunchroom, breakroom, or human resources office. Employers operating in New Jersey must also distribute certain notices to employees. In addition, for some laws, employers must post and/or distribute the notice in English, Spanish, and the language spoken by at least 10 percent of the employer’s workforce.
New rules from the DCR expressly allow New Jersey employers with internet and intranet sites used by their employees to satisfy their display obligations by posting the NJLAD and NJFLA posters on those sites instead of posting them in the physical worksite. Except as noted below, however, New Jersey Department of Labor & Workforce Development (NJDOL) regulations do not yet expressly permit electronic posting. As a reminder, in 2020, the U.S. Department of Labor (USDOL) issued guidance encouraging employers to supplement required hard-copy postings with electronic postings continuously accessible to employees. Although the USDOL guidance applies only to federal notice and posting requirements, and in light of this year’s DCR rules described above, we recommend electronic posting as a best practice for all state-mandated notices, in addition to hard-copy posting when required.
Downloading Mandatory Notices and Posters
The NJDOL provides employers with poster packets containing the required notices, which are available for downloading here.
Posters required by the New Jersey Division on Civil Rights are available for downloading here.
Note that, although some of the regulations specify that the notices must be on legal-size paper (81/2 x 14 inches), the posters from the state’s website printout are letter size (81/2 x 11 inches) and considered compliant.
In 2023, New Jersey requires employers to display—and, in some instances, distribute—the following posters and notices to their New Jersey employees:
In addition to the above, New Jersey has posting requirements aimed at specific sectors of the labor force. For example, New Jersey employers associated with the sale, rental, or lease of properties must advise of the NJLAD in housing. Employers that provide services to the public—including, but not limited to, restaurants, hotels, hospitals, movie theaters, and shopping centers—must advise patrons of the NJLAD in public accommodations. These businesses should display posters in areas readily accessible to the public (for example, near cash registers). Health care facilities must post notices apprising employees of mandatory overtime restrictions.
Employers should also remember to similarly comply with posting requirements under federal law; workplace posters from the USDOL are available for downloading here. (See also our previous article regarding the U.S. Equal Employment Opportunity Commission’s updated “Know Your Rights” poster here.)
Employers may meet many of their posting obligations by purchasing New Jersey and federal “all in one” posters from a reputable supplier and subscribing for updates.
What New Jersey Employers Should Do Now
- In advance of any mass layoff, review severance plans and agreements for compliance with amendments to the NJ WARN Act.
- Review anti-discrimination and drug testing policies to ensure compliance with new WIRE guidance and consider adopting the model Reasonable Suspicion Observed Behavior Report.
- Review and comply with all posting and notice requirements applicable to your organization.
- Update the organization’s notices and posters, as needed, to ensure compliance with current law.
- Keep or take a photo of the posters/notices that are being replaced to maintain a historical record of compliance.
- Review the organization’s new hire materials to ensure that they include the required notices.
- Review USDOL guidance regarding the electronic posting of federally required notices and posters. (For more information on how to comply with these notices and posters, see our blog post.)
- If distributing required notices by email, require employees’ written acknowledgment of receipt.
- Consider subscribing to a reputable supplier of federal and state notices.
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|Eric I. Emanuelson, Jr.|