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Employee Discipline: New Jersey

Employee Discipline requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Christine Zebrowski, Overbrook Law LLC

Summary

  • New Jersey is known as a pro-employee state with respect to the protection of employee rights in the work environment. This protection extends to employee discipline. Employers should be familiar with the many ways New Jersey differs from other state and federal laws on these requirements. See The New Jersey Law Against Discrimination.
  • Employees may file an administrative complaint with the New Jersey Division of Civil Rights or may proceed directly to Superior Court. See Statute of Limitations Under the LAD.
  • New Jersey employers may not discriminate or discipline employees on the basis of their displaying the American flag. See Other Discrimination Protections.
  • New Jersey's Conscientious Employee Protection Act (CEPA) prohibits retaliation against an employee who blows the whistle or who threatens to do so, with regard to improper, deceptive, harmful or illegal conduct by his or her employer, or conduct that relates to improper patient care by a health care provider. See New Jersey's Whistleblower Act: the Conscientious Employee Protection Act (CEPA).
  • New Jersey employees may have retaliation protections in addition to those under CEPA. See Additional Whistleblower and Retaliation Protections.
  • An employee's right to privacy in New Jersey is not clearly defined and depends on the circumstances of each case and the balance of factors at issue. See Employee Privacy.
  • New Jersey has a state wiretap act that follows the federal Wiretap Act. See Wiretapping and Recording of Phone Calls and Other Electronic Communications.
  • New Jersey is a single-party consent state with respect to recording communications. See Wiretapping and Recording of Phone Calls and Other Electronic Communications.
  • Noncompete agreements are enforceable in New Jersey if the terms of the agreement are reasonable. See Covenants Not to Compete.
  • New Jersey employees owe their employers a duty of loyalty not to act contrary to the employer's interests. See Duty of Loyalty.
  • New Jersey has implemented the New Jersey Trade Secrets Act (NJTSA). See New Jersey Trade Secrets Act (NJTSA).
  • In general, a New Jersey employer can discipline or fire employees for lawful off-duty activities under the at-will nature of employment in the state. However, employers may not make decisions affecting employment based on the fact that an employee does or does not smoke or use other tobacco products. See Off-Duty Conduct.
  • New Jersey law restricts the use of tobacco and e-cigarettes in certain workplaces. See E-Cigarette and Tobacco Use.
  • New Jersey employers are prohibited from retaliating against employees for exercising their rights under the state domestic violence leave law. See Domestic Violence Leave.
  • In the case of a disciplinary meeting, an employer can be held liable for false imprisonment if the employer or his agent knowingly restrains an employee so as to interfere substantially with the employee's ability to leave the room. See False Imprisonment.

The New Jersey Law Against Discrimination

Just as the nondiscrimination requirements of Title VII of the Civil Rights Act apply to employee discipline, so do the nondiscrimination requirements of New Jersey law. See also Employee Management > EEO - Discrimination: New Jersey.

The New Jersey Law Against Discrimination (NJLAD or LAD) is considerably broader than federal antidiscrimination law. +N.J. Stat. §10:5-1.

As a result, New Jersey is known as a pro-employee state with respect to the protection of employee rights in the work environment.

The LAD allows an employee to file a charge of discrimination directly in Superior Court without having to file a complaint with the New Jersey Division on Civil Rights. +N.J. Stat. §10:5-12.

The LAD defines handicap and disability broadly. The LAD applies to all employers, regardless of the number of employees.

The LAD also prohibits retaliation against employees for engaging in protected activity. For example, an employer may not take reprisals against an employee who seeks information from other employees regarding job titles, compensation rates or benefits. See Employee Management > EEO - Retaliation: New Jersey. Available remedies under the LAD's retaliation protections include:

  • Equitable relief;
  • Recovery for economic losses;
  • Compensatory damages;
  • Punitive damages; and
  • Attorney fees.

An employee filing a retaliation claim under the LAD need not show "actual discrimination against an identifiable victim," but only that he or she had a reasonable belief that there was a violation of the LAD's protections against workplace discrimination. See Battaglia v. UPS +214 N.J. 518 (2013).

The LAD includes the following protected classes:

  • Race;
  • Creed;
  • Color;
  • National origin;
  • Ancestry;
  • Age (aged 70 and under);
  • Marital status;
  • Civil union status;
  • Domestic partnership status;
  • Affectional or sexual orientation;
  • Genetic information;
  • Sex, including pregnancy or breastfeeding;
  • Gender identity or expression;
  • Disability;
  • Nationality or atypical hereditary cellular or blood trait of any individual;
  • Because of the liability for service in the Armed Forces of the United States; and
  • Because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer.

Statute of Limitations Under the LAD

Employees may file an administrative complaint with the New Jersey Division of Civil Rights or may proceed directly to Superior Court. An administrative complaint must be filed within 180 days after the alleged act of discrimination.

For a court claim, the statute of limitations is two years, although New Jersey recognizes the continuing violation doctrine, which can extend the filing deadline beyond the initial statute of limitations.

Other Discrimination Protections

New Jersey employers may not discriminate against or discipline employees on the basis of their displaying the American flag. +N.J. Stat. § 10:5-12.6.

Employees wishing to display the American flag at their workstations must ensure that the display does not interfere with their job duties.

Employees may seek the following remedies under this law:

  • Damages;
  • Punitive Damages;
  • Costs; and
  • Reasonable attorney fees.

New Jersey's Whistleblower Act: the Conscientious Employee Protection Act (CEPA)

New Jersey's Conscientious Employee Protection Act (CEPA) prohibits retaliation against an employee who blows the whistle, or who threatens to do so, with regard to improper, deceptive, harmful or illegal conduct by his or her employer, or conduct that relates to improper patient care by a health care provider. +N.J. Stat. § 34:19-3.

Protected activity also includes:

  • Providing information to or testifying in a government agency hearing or investigation; and
  • Objecting to or refusing to participate in any activity, policy or practice which the employee reasonably believes:
    • Is a violation of law;
    • Is harmful or deceptive; or
    • Relates to improper patient care by a health care provider.

The CEPA applies to public sector and private sector employers.

CEPA's protections apply to employees and "any individual who performs services for and under the control and direction of an employer for wages or other remuneration." +N.J.S.A. 34:19-2(b). Independent contractors are explicitly covered under CEPA. D'Annunzio v. Prudential Ins. Co. of America, +192 N.J. 110 (2007). However, unpaid volunteers who do not receive wages or other remuneration are not covered under the statute. Sauter v. Colts Neck Volunteer Fire Co. No. 2, +2017 N.J. Super. LEXIS 133 (App.Div. 2017).

"Watchdog" employees - those whose job duties entail knowing or securing compliance with a relevant standard of care and knowing when an employer's actions or proposed actions deviate from the standard of care - are covered under CEPA. In Lippman v. Ethicon, a unanimous New Jersey Supreme Court held that CEPA's protections extend to the performance of regular job duties by watchdog employees. +2015 N.J. LEXIS 791. The Court stated that unless and until the legislature expresses its intent to differentiate among the classes of employees who are entitled to CEPA protections, there can be no additional burden imposed on watchdog employees seeking CEPA protection.

Employees can establish a CEPA retaliation claim by showing that:

  • He or she engaged in protected conduct;
  • The employer took retaliatory action against the employee immediately after or close in time to the protected conduct; and
  • There is a causal connection between the two.

Protected conduct does not include complaints that:

  • Are vague;
  • Concern minor workplace misconduct;
  • Relate to generalized workplace discontent.

See Battaglia v. UPS +214 N.J. 518 (2013).

Employees have up to one year to file a court action for retaliation under CEPA, although the continuing violation exception applies to CEPA actions, which can extend the statute of limitations beyond the one-year period.

There is no requirement to file an administrative charge before proceeding to court.

Available remedies include:

  • Equitable relief;
  • Recovery for economic losses;
  • Compensatory damages;
  • Punitive damages, which may be capped; and
  • Attorney fees.

Employers facing a potential action under the CEPA should consult with counsel immediately.

Additional Whistleblower and Retaliation Protections

Wage and Hour Laws

New Jersey has amended its state wage and hour law to include retaliatory protections with respect to wage theft and to increase penalties for noncompliance. +2018 Bill Text NJ S.B. 1790, amending +N.J. Stat. § 34:11-4.10 , +N.J. Stat. § 34:11-56a24; see Payment of Wages: New Jersey. State wage and hour, wage theft and minimum wage provisions contain retaliation protections.

Employee protections. The law prohibits an employer from taking retaliatory action against an employee by terminating or in any other manner discriminating against the employee because the employee:

  • Has made a complaint regarding nonpayment of wages to:
    • The employer;
    • The state (i.e., the Department of Labor and Workforce Development); or
    • The employee's authorized representative; or
  • Has instituted or is about to institute a proceeding related to the enforcement of wage payment laws;
  • Has testified or is about to testify in any proceeding under wage payment laws; or
  • Has informed a co-worker about employee rights under state wage and hour laws.

Criminal penalties. An employer that violates these provisions may be subject to:

  • For a first violation:
    • A fine of at least $500, and no more than $1,000;
    • Imprisonment for no less than 10 and no more than 90 days; or
    • Both;
  • For a second or subsequent violation:
    • A fine of at least $1,000, and no more than $2,000;
    • Imprisonment for no less than 10 and no more than 100 days; or
    • Both.

In the case of a termination or other discriminatory or retaliatory action against an employee that is in violation of the law, the employer will also be required to:

  • Offer reinstatement to the terminated employee;
  • Pay all wages lost as a result of the termination or discriminatory action; and
  • Pay liquidated damages equal to no more than 200 percent of the wages due.

In addition, effective November 1, 2019, an employer that commits multiple violations may be subject to penalties under the crime of pattern of wage nonpayment.

Employee claims. An employee may file a court claim against the employer to recover unpaid minimum wages, or wages lost due to retaliatory acts, in order to obtain the following remedies:

  • Unpaid wages;
  • Reinstatement;
  • Liquidated damages equal to no more than 200 percent of the amount of the unpaid wages;
  • Costs; and
  • Reasonable attorney fees.

+2018 Bill Text NJ S.B. 1790, amending +N.J. Stat. § 34:11-56a25 and +N.J. Stat. § 34:11-58.

A court may not award liquidated damages on a first violation if an employer can show that it:

  • Made an inadvertent error in good faith;
  • Had reasonable grounds for believing the act or omission was not a violation of wage and hour laws;
  • Acknowledges the violation; and
  • Pays the amount owed within 30 days of notice of the violation.

Employees must file a claim within six years of the violation.

Administrative remedies. Administrative remedies under the Administrative Procedure Act may be assessed in addition or as an alternative to criminal and civil sanctions, including:

  • A fine of up to $250 for a first violation; and
  • A fine of up to $500 for each subsequent violation.

The Department of Labor and Workforce Development is authorized to investigate claims and to make a decision or award when the sum in controversy, exclusive of costs, does not exceed $50,000. +N.J. Stat. § 34:11-58(c).

Rebuttable presumption. Taking an adverse action (e.g., termination) against an employee within 90 days of an employee engaging in a protected activity (e.g., filing a complaint or a court claim) under the law will be presumed to be retaliation. An employer may contest the assumption of retaliation with a showing of clear and convincing evidence.

Legal protections. An employee complaint or communication does not have to make explicit reference to state wage and hour, minimum wage or wage theft laws in order to trigger the law's protections.

Joint employer liability. With respect to labor contractors and client employers, the law designates joint and several liability for these entities, so that the client employer and labor contractor would share legal responsibilities for any violations of the wage and hour laws, including retaliatory acts. Any attempts to waive liability by contract or agreement of either party are contrary to public policy, void and unenforceable.

Domestic Violence Leave

New Jersey employers with 25 or more employees have requirements regarding New Jersey's domestic violence leave law, the New Jersey Security and Financial Empowerment (NJ SAFE) Act. +N.J. Stat.§ 34:11C-2. Employers are prohibited from taking any adverse employment actions against an employee based on his or her exercise of any rights under the Act. +N.J. Stat.§ 34:11C-4. If an employer fails to provide leave, discriminates or retaliates against an employee for exercising his or her rights under the SAFE Act, the employer can face civil penalties of $1,000 to $2,000 for the first incident and up to $5,000 for each additional violation. +N.J. Stat.§ 34:11C-4.

See Other Leaves: New Jersey.

New Jersey Earned Sick Leave Law

New Jersey has enacted an earned sick leave law. See Other Leaves: New Jersey; +2018 Bill Text NJ A.B. 1827, supplementing +N.J. Stat. § 34:11-56a et seq. The law contains retaliation protections, including for any person who mistakenly, but in good faith, alleges violations of the law.

Specifically, the law prohibits an employer from taking retaliatory personnel action or discriminating against an employee because the employee:

  • Requests or uses earned sick leave either in accordance with:
    • The law; or
    • The employer's internal earned sick leave policy;
  • Files a complaint with an enforcement agency alleging the employer's violation of any provision of the law; or
  • Informs any other person of his or her rights under the law.

In addition, an employer is prohibited from counting earned sick leave taken in accordance with the law as an absence that may result in the employee being subject to:

  • Discipline;
  • Discharge;
  • Demotion;
  • Suspension;
  • A loss or reduction of pay; or
  • Any other adverse action.

The law imposes a rebuttable presumption of unlawful retaliatory personnel action (assumes a violation unless the employer proves otherwise) if an adverse action occurs within 90 days of when an employee:

  • Files a complaint with an enforcement agency or a court alleging a violation of any provision of this section;
  • Informs any person about an employer's alleged violation of the law;
  • Cooperates with an enforcement agency or other persons in the investigation or prosecution of any alleged violation of the law;
  • Opposes any policy, practice or act that is unlawful under the law; or
  • Informs any person of his or her rights under the law.

However, nothing in the law requires that an employer provide earned sick leave for an employee's leave for purposes other than those protected by the law, including:

  • The employee's or a family member's diagnosis, care, treatment of or recovery from a mental or physical illness, injury or other adverse health condition, or need for preventive medical care;
  • The employee or a family member is a victim of domestic abuse or violence, and needs to obtain:
    • Medical attention;
    • Services from a designated domestic violence agency or other victim services organization;
    • Psychological or other counseling; or
    • Legal services, including obtaining a restraining order or preparing for or participating in a civil or criminal legal proceeding;
  • Closure of the employee's workplace or a child's school or place of care by order of a public official due to an epidemic or other public health emergency;
  • A public health authority determines that the employee's or a family member's presence in the community would jeopardize the health of others;
  • To attend a child's school-related conference, meeting, function or other event requested or required by a school administrator, teacher or other professional staff member responsible for the child's education; and
  • To attend a meeting regarding a child's care in connection with the child's health or disability.

In addition, an employer may:

  • Discipline an employee who uses earned sick leave for purposes other than those listed in the law;
  • Prohibit employees from using foreseeable earned sick leave on certain dates;
  • Require reasonable documentation if sick leave that is not foreseeable is used during certain dates; and
  • Require reasonable documentation if the leave is being taken for three or more consecutive days.

Any violations of the law may be subject to fines and penalties under the New Jersey State Wage and Hour Law and to remedies available under discrimination protections.

  • Bloomfield;
  • East Orange;
  • Elizabeth;
  • Irvington;
  • Jersey City;
  • Montclair;
  • Newark;
  • Passaic;
  • Paterson; and
  • Trenton.

New Jersey Worker Health and Safety Act

New Jersey law also protects employees who have reported violations of the state Occupational and Health Act. See +N.J. Stat. § 34:6A-45; see also HR and Workplace Safety: New Jersey.

Temporary Disability Benefits Law

Under New Jersey law, an employer may not discharge, harass, threaten, or otherwise discriminate or retaliate against an employee with respect to the compensation, terms, conditions or privileges of employment on the basis that the employee requested or took:

  • Any temporary disability benefits to which the employee is legally entitled; or
  • Family temporary disability leave benefits.

The law prohibits an employer to engage in retaliation by refusing to restore the employee following a period of leave.

An employee or former employee may file a civil action in the state supervior court. A claimant may seek all remedies available for common law tort claims. A court may order the following remedies:

  • Civil fines of at least $1,000 and up to $2,000 for the first violation, and up to $5,000 for each subsequent violation;
  • An injunction to restrain continued violations;
  • Reinstatement of the employee to the same position or to a position equivalent to that which the employee held prior to any unlawful termination or retaliatory action;
  • Reinstatement of full fringe benefits and seniority rights;
  • Compensation for any lost wages, benefits and other remuneration; and
  • Payment of reasonable costs and attorney fees.

+2018 Bill Text NJ A.B. 3975, creating N.J. Stat. § 43:21-55.2; see Insurance and Disability Benefits: New Jersey.

Employee Privacy

New Jersey employees may have a cause of action for violation of privacy under certain conditions, e.g., random drug testing. Hennessey v. Coastal Eagle Point Oil Co., +129 N.J. 81 (1992).

An employee's right to privacy in New Jersey is not clearly defined and depends on the circumstances of each case and the balance of factors at issue.

In most cases, the outcome will depend on whether the employee has a reasonable expectation of privacy in any given situation and whether the employer has any legitimate business interest to intrude.

The extent and clarity of the language in the employer's policy is a key factor in defining an employee's reasonable expectation of privacy and the employer's legitimate business interest to intrude into employee workspace.

For these reasons, employers should include language in their policies describing the specific areas that constitute the workplace and the specific items that constitute employer property. See Employee Management > Employee Handbooks - Work Rules - Employee Conduct.

The policy should inform employees that specific areas and items are subject to search, and that no reasonable expectation of privacy exists with respect to personal items and information in those designated areas.

Employers should have their applicable policies reviewed by counsel to ensure the broadest possible application in this regard.

Employee Privacy in Electronic Communications

The factors to be considered with respect to privacy in electronic communications may include:

  • The location of the computer, e.g., home or office;
  • Whether a personal email or employer email address was used;
  • The specificity of the employer's policy on email communications; and
  • The reasonableness of the employee's expectation of privacy in the communications.

For example, the New Jersey Supreme Court has upheld an employee's legitimate expectation of privacy in personal emails to her lawyer when the emails were sent through her password-protected personal email account, even though she sent them from her work computer. See Stengart v. Loving Care Agency, +201 N.J. 300 (2010).

In that case, the court considered the adequacy of the notice in the employer's policy and the important public policy concerns raised by the attorney-client privilege.

In ruling for the employee, the Court considered the fact that the employee had taken steps to protect her communications by using a personal password-protected account.

The Court also considered the fact that the lawyer included specific language in his emails stating that the communication was privileged.

The Court also found that the employer's policy was not clear on whether personal emails sent through an employee's web-based personal email account were covered by the policy.

In another case, a New Jersey court found that an employee had no reasonable expectation of privacy in personal information stored on a workplace computer under a separate password, since the employee was advised in the employer's policy that all computers were the property of the company. State v M.A., +402 N.J. Super. 353 (App. Div. 2008).

In still another case, an employee had no legitimate expectation of privacy when he used a company computer to view pornographic sites.

The company in that case had a policy on monitoring employee emails and web use, which the court relied upon in reaching its decision. Doe v. XYC Corp., +382 N.J. Super. 122 (App. Div. 2005).

Neither of these last two cases dealt with the important public policy of protecting the attorney-client privilege.

Employee Privacy in Social Media

At least one New Jersey court has found that employee privacy rights do not extend to social media pages that are accessible by third parties. See Pietrylo v. Hillstone Restaurant Group, Civil Case No. 06-5754(FSH), +2009 U.S. Dist. LEXIS 88702 (D. N.J. 9/25/09).

However, unauthorized employer access of employee social media postings may violate the federal and state antiwiretapping acts, as well as the federal and state Stored Communications Acts. See Wiretapping and Recording of Phone Calls and Other Electronic Communications.

In Pietrylo, supervisors accessed an invitation-only, password-protected employee website without authorization. The Pietrylo supervisors were found to be in violation of the wiretapping and stored communications laws.

In that case, an employee had created a page on a social media site for complaints about the company.

Only certain employees were invited to participate and the site was password protected. Employees accessed the site after work hours on personal computers.

Some of the postings included comments about supervisors, complaints about service standards, sexual comments about customers and other inappropriate postings.

A supervisor coerced a member-employee to give him the password. He accessed the site and reported his findings to other managers.

The employee who created the site was fired and sued for invasion of privacy and violation of the wiretapping and stored communications act.

The jury ruled against the employee on the invasion of privacy claim, finding that employees had no reasonable expectation of privacy in a social media page that could be shared with third parties. However, the employer lost on the wiretapping and stored communications claims.

Wiretapping and Recording of Phone Calls and Other Electronic Communications

New Jersey has a state wiretap act that follows the federal Wiretap Act.

Under the New Jersey Wiretapping and Electronic Surveillance Control Act, the interception of wire, electronic or oral communications, by means of electronic, mechanical or other devices, is illegal. +N.J. Stat. § 2A:156A-3.

New Jersey also has a provision that follows the federal Stored Communications Act, which prohibits unauthorized access of websites and social media pages. +N.J. Stat. § 2A:156A-27.

New Jersey is a single-party consent state with respect to recording communications, which means that a communication may be intercepted if one party to the communication consents, unless a crime or other legal violation is being committed. +N.J. Stat. § 2A: 156A-4.

New Jersey also recognizes the business extension exception, which allows recording of communications when the interception is made:

  • With interception equipment furnished to the employer by a communication services provider; and
  • Within the ordinary course of business.

The business extension exception ordinarily applies when a phone call or other communication is prefaced with a recording stating that the communication may be recorded.

Drug Testing of Certain State Employees

New Jersey regulates drug testing for applicants and state employees at psychiatric hospitals, developmental centers and veteran's memorial homes. +N.J. Stat. § 30:4-3.27.

Applicants are required to undergo drug testing as a condition of employment, at the applicant's expense. Failure of the drug test results in removal from consideration for employment.

Employees are subject to random drug testing and may be subject to additional testing if a supervisor has reasonable suspicion to believe the employee is illegally using a controlled substance.

Employers May Not Give Lie Detector Tests

New Jersey law prohibits employers from influencing, requesting or requiring employees and applicants to take a lie detector test as a condition of employment or continued employment. +N.J. Stat. § 2C:40A-1.

However, employers that are authorized to manufacture, distribute or dispense controlled dangerous substances may administer lie detector tests to certain employees or applicants under certain conditions.

Protection of Intellectual Property

Covenants Not to Compete

Noncompete agreements are enforceable in New Jersey if the terms of the agreements are reasonable. Reasonableness depends on whether the agreement:

  • Protects the legitimate interests of the employer;
  • Imposes undue hardship on the employee; or
  • Is harmful to the public.

Courts will modify portions of a noncompete agreement that are not enforceable, and will enforce the remaining provisions of the agreement.

An offer of employment or continued employment is sufficient consideration to support a noncompete agreement in New Jersey.

Duty of Loyalty

New Jersey employees owe their employers a duty of loyalty not to act contrary to the employer's interests. An employee is not precluded from taking any action in preparation of a plan to compete with his employer.

However, while employed, an employee must not act contrary to the employer's interest, or compete with his or her employer.

This includes not soliciting the employer's customers or other acts of secret competition during employment. See Baseline Servs., Inc. v. Kutz, No. A-5214-09T3, +2011 N.J. Super. Unpub. LEXIS 2309 (N.J. Super. August 25, 2011).

A court may award disgorgement (i.e., repayment) of employee compensation in a duty of loyalty case even in the absence of a finding that the employer sustained economic loss as a result of the employee's disloyal conduct. If a court determines that disgorgement is an appropriate and fair remedy, it should apportion that compensation and order disgorgement of only the compensation received during the period in which the employee breached the duty of loyalty. See Kaye v. Rosefielde, +223 N.J. 218 (2015).

New Jersey Trade Secrets Act (NJTSA)

New Jersey has implemented the New Jersey Trade Secrets Act (NJTSA). +N.J. Stat.§ 56:15-1.

The law essentially codifies the existing common law, or court-made law, on trade secret theft.

New Jersey law defines trade secrets as any information, such as a formula, pattern, business data compilation, device or process, that:

  • Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, other persons who can obtain economic value from its disclosure or use; and
  • Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

To state a claim under the NJTSA, an employer must prove that the employee obtained trade secrets by improper means.

Remedies under the NJTSA include injunctive relief to prevent actual and threatened misappropriation. Additional remedies include:

  • Damages for unjust enrichment;
  • Damages for actual loss;
  • Punitive damages;
  • Costs; and
  • Attorney fees for willful and malicious misappropriation of trade secrets.

Required Postings

The New Jersey Department of Labor and Workforce Development (DLWD) requires the conspicuous posting of a six-page notice with details regarding an employer's obligations to maintain and report records regarding wages, benefits and taxes pursuant to state law.

The notice must be posted and distributed to all employees and new hires. Employers may satisfy the posting and distribution requirement by providing either a physical copy of the notice or an electronic copy via email.

Other New Jersey notices that must be posted and distributed to employees include:

  • Conscientious Employee Protection Act notice, distributed annually to all employees; and
  • Family Leave Insurance notice, distributed to:
    • All current employees;
    • Each new hire;
    • Each employee who requests time off for a covered reason; and
    • Any employee upon his or her first request.

See Employee Communications: New Jersey.

Off-Duty Conduct

In general, a New Jersey employer can discipline or fire employees for lawful off-duty activities under the at-will nature of employment in the State.

However, employers may not make decisions affecting employment based on the fact that an employee does or does not smoke or use other tobacco products.

There is an exception for cases in which the employer has a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee or prospective employee. +N.J. Stat. § 34:6B-1. Violations of this law are enforced by the Commissioner of Labor and Workforce Development and could result in penalties of up to:

  • $1,000 for the first violation;
  • $5,000 for the second violation;and
  • $10,000 for each subsequent violation.

+N.J. Stat. § 34:6B-19.

In addition, employers may not make adverse employment decisions or engage in harassing or threatening behaviors based on an employee's political activities. +N.J. Stat. § 19:34-27. Violations may result in charges of a crime in the third degree.

E-Cigarette and Tobacco Use

New Jersey prohibits the smoking of tobacco products and the use of electronic smoking devices in all enclosed indoor places of public access and workplaces. +N.J. Stat. § 26:3D-56. An electronic smoking device is defined as an electronic device that can be used to deliver nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, cigarillo or pipe.

Marijuana

Federal law continues to prohibit use of marijuana. Marijuana, or cannabis, is scheduled as a Schedule I controlled substance, which means that it has no acceptable medical use. Therefore, an employer:

  • Does not have to accommodate marijuana use, including ingestion, possession or intoxication, in the workplace; and
  • May take adverse action, including discipline up to and including termination, against an employee who is under the influence of marijuana at work.

Under the Jake Honig Compassionate Use Medical Cannabis Act (Act), which amends the Compassionate Use Medical Marijuana Act, qualified registered users with a qualifying medical condition are permitted to use medical cannabis (previously referred to as marijuana under state law). +N.J. Stat. § 24:6I-3 amended by +2018 Bill Text NJ A.B. 20.

An employer cannot take an adverse employment action against an employee who is a registered qualifying patient solely on the employee's status as a registrant with the Cannabis Regulatory Commission. However, the law does not:

  • Restrict an employer's ability to prohibit, or take adverse employment action for, the possession or use of intoxicating substances during work hours or on the premises of the workplace outside of work hours; or
  • Require an employer to commit any act that would cause the employer to be in violation of federal law, that would result in a loss of licensing-related benefit under federal law, or that would result in the loss of a federal contract or federal funding. (An employer would not be penalized or denied any benefit under state law solely on the basis of employing a person who is registered with the Cannabis Regulatory Commission.)

The law defines adverse employment action as refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.

A New Jersey employer need not permit or accommodate cannabis use or ingestion in the workplace, or an employee working while under the influence of cannabis. However, as the court in Wild v. Carriage Funeral Holdings, Inc., +2019 N.J. Super. LEXIS 37 (N.J. Ct. App. Mar. 27, 2019) noted, just because the Compassionate Use of Marijuana Act does not require an employer to accommodate the use of medical marijuana in the workplace, it "does not mean that the LAD may not impose such an obligation, particularly when the declination of an accommodation to such a user relates only to use "in any workplace."

An employer should continue to follow applicable drug testing and drug-free policies and document any facts that would show impairment while at work, such as those relating to dexterity or appearance.

If an employer has a drug testing policy and an employee tests positive for cannabis, the employer must:

  • Offer the employee an opportunity to present a legitimate medical explanation for the positive test result; and
  • Provide written notice to the employee of the employee's right to present a legitimate medical explanation.

Within three working days after receiving notice of a positive test result for cannabis, the employee may submit information to the employer to explain the positive test result, or may request a confirmatory retest of the original sample at the employee's own expense. As part of an employee's explanation for the positive test result, the employee may present an authorization for medical cannabis issued by a health care practitioner, proof of registration with the Commission, or both.

False Imprisonment

In the case of a disciplinary meeting, an employer may be held liable for false imprisonment if the employer or his agent knowingly restrains an employee so as to interfere substantially with the employee's ability to leave the room. +N.J. Stat. § 2C:13-3.

Future Developments

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