United States: Summer 2019 – Never A Dull Moment In New Jersey Employment Law

New Jersey (August 13, 2019) – The weather down the shore is not the only thing heating up in the Garden State. New Jersey remains active on the legislative front with respect to laws impacting all employers active in the state. We discuss below several recent developments.

New Wage Theft Law Dramatically Changes Legal Landscape

On August 6, 2019, New Jersey adopted the Wage Theft Act (WTA), which is effective immediately. Among other provisions, the WTA enables employees to recover liquidated damages and makes client-employers and labor contractors jointly and severally liable for violations, including retaliation.

Among the important changes are the following:

  • There is now a rebuttable presumption against employers who fail to maintain records required by law or take adverse action against employees who have complained about wage and hour violations.
  • Employees can recover liquidated damages of up to 200% of the wages owed. First-time offenders can avoid liquidated damages by demonstrating that the violation was an inadvertent error made in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation, but only if the employer admits to a violation and pays the full amount owed within 30 days of receiving notice of the violation.
  • Employers may be required to offer reinstatement to employees terminated due to retaliation.
  • The statute of limitations is extended from two years to six years for wage and hour violations.
  • There is a rebuttable presumption of successor liability. An employer will be deemed to have established a successor entity if the predecessor and alleged successor share at least two of the following: perform similar work within the same geographical area; occupy the same premises; have the same telephone or fax number; have the same email address or website; employ substantially the same work force, administrative employees, or both; utilize the same tools, facilities, or equipment; employ or engage the services of any person or persons involved in the direction or control of the other; or list substantially the same work experience.
  • Employers can be fined for violations, as well as imprisoned.
  • The Wage Collection Section (WCS) of the New Jersey Department of Labor and Workforce Development (DOL), which had been empowered to investigate State Wage and Hour Laws claims of up to $30,000, may now investigate claims of up to $50,000.
  • When the WCS finds an employer liable for wages or damages, the employer must pay within 10 days of the determination.
  • Employers must provide to each current and newly hired employee a notice of employee rights under the State Wage and Hour Laws including an explanation of how to file claims. The DOL will be preparing a model notice.

Salary Inquiries Are Now Largely Prohibited in Connection with Job Searches

Effective January 1, 2020, New Jersey will join several other states and municipalities in barring employers from screening job applicants (not including internal candidates for promotions or lateral transfers) based on the applicant's prior salary history, which includes prior wages, salary, or benefits. There are exceptions which employers should make note of. Specifically:

  • Employers which use multi-state employment applications that include operations outside of New Jersey are permitted to retain salary history questions, provided that the employer adds a disclaimer that instructs applicants for New Jersey positions not to answer the question.
  • Applicants remain free to voluntarily disclose salary history. If they do so, the employer is permitted to verify the accuracy of the information and use it to determine the applicant's compensation if an offer is being extended.
  • After an employment offer is extended that includes advice about the compensation package being offered, the employer may ask the applicant to confirm his or her salary history.
  • A disclosure of salary history by the employer's outside background check vendor will not violate the law if the employer has cautioned the vendor not to disclose that information.
  • Employers may inquire about the terms and conditions of the applicant's prior employer's incentive compensation plan when interviewing for positions that include incentive or commission pay, but it may not ask about the specific amounts paid by the prior employer.
  • In addition, the law bars employers from requiring that an applicant's salary history satisfy any minimum or maximum threshold. Finally, employment agencies can ask applicants for compensation information, but the agencies can only pass that information along to the employer if the applicant gives written consent.

Employers have strong incentive to comply based on the availability of a private right of action for damages and attorneys' fees as well as civil penalties from $1,000-$10,000 per violation. Employers who have had the unfortunate experience of litigating employment discrimination claims in New Jersey Superior Court well know that it is advisable to take pains to avoid a return trip to the courthouse. All others should heed this word to the wise.

Compassionate Use Medical Marijuana Act Impacts Employers

New Jersey has adopted an amended statute governing medical marijuana use and regulation which contains provisions that bear on medical marijuana use by employees and applicants. The law bars taking any adverse action against employees and applicants based on their off-premises and non-working hour consumption when it is "based solely on the employee's status as a medical marijuana user." It does not require employers to permit marijuana use in the workplace, and it also permits employers to take adverse action based on employee use or possession of intoxicating substances during work hours or at the workplace outside of working hours. There is a carve-out under which the employer may take adverse action against a medical marijuana user if accommodating such use would violate federal law or result in the loss of a federal contract or federal funding. That is important since federal law continues to impose blanket restrictions on the sale and use of marijuana.

The law provides new mandatory procedures to be used when employees or applicants test positive for marijuana. The employer must provide written notice of the positive test result and provide an opportunity for the individual to provide a legitimate medical explanation for the positive result. Within three working days of the individual's receipt of the written notice, he or she can provide the reason or request retesting at his or her expense.

Employers should be careful in considering terminations or rejections of applications based on the rationale that the contemplated adverse action is predicated solely on the positive test result. The plaintiffs' bar is skilled at conjuring additional criteria claimed to have been in play as a basis to challenge what should be non-actionable employer action.

Notably in the same regard, the New Jersey Appellate Division had recently held that the New Jersey Law Against Discrimination may require employers to accommodate medical marijuana use for treatment of an employee's disability. See Wild v. Carriage Funeral Holdings, Inc., 458 N.J. Super. 416 (App. Div. 2019). In light of this ruling, medical marijuana users may have two different statutes on which to rely if subjected to adverse action.

New Jersey Requires Employers to Provide Pretax Transportation Fringe Benefits

New Jersey has apparently become the first state to require certain employers to provide pretax transportation fringe benefits to employees. Specifically, every employer which has at least 20 employees is required to offer all employees the opportunity to utilize a pretax transportation fringe benefit. Note that the employee head count permits excluding employees covered by a collective bargaining agreement. Employers must offer the benefit to all employees who are covered by the State Unemployment Insurance Code.

The commissioner of the DOL is responsible for compliance and can issue fines against employers who fail to provide the required benefits.

Paid Family Leave Amendments

Finally, we  previously advised on amendments to the Paid Family and Medical Leave and Temporary Disability Laws. One such important change was effective June 30 of this year. It expands the number of covered employees under the Family Leave Act. It now applies to all employers with at least 30 employees during each working day in the 20 or more calendar workweeks in the current or prior calendar year.

Needless to say, it would behoove all New Jersey employers to revisit their handbooks, policies and practices in light of the panoply of new legal requirements.  Lewis Brisbois' Employment Law team is available to assist employers in navigating these new requirements.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions