Employee Handbooks - Work Rules - Employee Conduct: New Jersey
Federal law and guidance on this subject should be reviewed together with this section.
Authors: Stacey D. Adams, Alison B. Andolena, Littler
- Although New Jersey is an at-will employment state, there are several exceptions to the at-will employment doctrine. See At-Will Nature of Employment; Exceptions to the At-Will Employment Doctrine.
- New Jersey has several laws designed to promote workplace safety, including a Right to Know act requiring employers to provide employees with information regarding hazardous materials, an occupational health and safety act geared towards public employees and a smoke-free air act. See Workplace Safety.
- New Jersey has wage and hour laws governing meal breaks and rest periods, wage payment, permissible deductions and other wage-related issues. See Meal Breaks and Rest Breaks; Wage and Hour Requirements.
- There are several laws in New Jersey governing employee leaves, including the New Jersey Family Leave Act and the New Jersey Paid Family Leave Law. See Employee Leaves.
- There are limitations placed on employers with regard to monitoring employees in the areas of drug testing, electronic communications, polygraphs and wiretapping.See Employee Monitoring.
At-Will Nature of Employment
New Jersey is an at-will employment state, meaning that employees may be discharged for any reason, with or without cause or notice, so long as it is not an illegal reason. See Employment At-Will: New Jersey.
There are, however, both judicial and legislative exceptions to the at-will doctrine in New Jersey. In New Jersey, both written handbooks, as well as oral assurances, may alter the at-will employment relationship and form a just cause employment contract.
Exceptions to the At-Will Employment Doctrine
Written Policies & Handbooks
New Jersey Courts have found that statements contained in employee handbooks or company policies may create an implied promise that an employee cannot be fired without cause or unless the employer followed the procedures outlined in its handbook or policies. See Woolley v. Hoffman-La Roche, Inc., +99 N.J. 284 (1985); see Employment At-Will: New Jersey.
To avoid such an outcome, employee handbooks or company policies should contain a clear and prominent disclaimer that there is no promise of any kind by the employer contained in the manual.
The disclaimer should notify employees that regardless of what the manual says or provides, the employer promises nothing and remains free to change wages and all other working conditions without having to consult anyone and without anyone's agreement; and that the employer continues to be free to fire an employee with or without good cause.
The statement must be written in straightforward language and avoid the use of legalese and should be separated from the rest of the text through the use of a different font, color, etc., so as to attract the reader's attention. See Nicosa v. Wakefern Food Corp., +136 N.J. 401 (1994).
Employers may also enter into separate agreements with employees confirming that the employment relationship is at-will and can be terminated for any reason at any time. See Schlichtig v. Inacom, Corp., +271 F. Supp. 2d 597 (D.N.J. 2003).
New Jersey Courts also recognize that oral assurances may alter the at-will employment relationship. See Employment At-Will: New Jersey.
Courts will consider whether the contract is sufficiently clear and capable of judicial enforcement when deciding whether an oral contract exists. See Shebar v. Sanyo Business Systems Corporation, +111 N.J. 276 (1988).
Public Policy Exception
There is a public policy exception to the at-will doctrine in New Jersey. See Employment At-Will: New Jersey.
Specifically, an at-will employee will have a cause of action for wrongful discharge if it violates a clear mandate of public policy. See Pierce v. Ortho Pharmaceutical, +84 N.J. 58 (1980).
In addition to the public policy exception, there are many statutory exceptions to the at-will doctrine which restrict an employer's ability to terminate an employee either because they have engaged in certain protected activities or because the individual is a member of a protected class and the reason for the termination relates to that classification. See Employment At-Will: New Jersey.
For example, the New Jersey Law Against Discrimination (NJLAD or LAD) prohibits adverse employment action against an employee based upon a number of protected categories such as race, gender, religion, age, handicap, national origin.
Worker and Community Right to Know Act
Under the New Jersey Worker and Community Right to Know Act, employers must disclose to employees information about hazardous substances. +N.J. Stat. § 34:5A-1.
Employers shall maintain a central file containing the workplace survey for the facility, appropriate hazardous substance fact sheets, and, if applicable, a copy of the environmental survey for the facility; post a notice to employees of the availability of the information; and supply employees with any materials provided by the Departments of Health, Environmental Protection or Labor informing employees of their rights. +N.J. Stat. § 34:5A-12.
Access to information must be provided within five days of the request.
Employers may not discharge, discipline, penalize, or discriminate against an employee for exercising their rights under the statute. +N.J. Stat. § 34:5A-17(a).
An employee may file a complaint with the Commissioner of the Department of Labor within 30 days of a violation or learning of a violation. +N.J. Stat. § 34:5A-17(b).
New Jersey Public Employees' Occupational Safety & Health Act (PEOSHA)
Public employers must comply with the provisions of PEOSHA. +N.J. Stat. § 34:6A-25. As mandated by the New Jersey Department of Labor and Workforce Development, New Jersey public employers must post the New Jersey Safe and Healthful Workplace Poster.
PEOSHA requires public employers to provide employees with employment and a place of employment which is free from recognized hazards which may cause serious injury, physical harm or death to employees and to comply with standards promulgated under PEOSHA. +N.J. Stat. § 34:6A-33.
Like its federal counterpart, PEOSHA contains a number of specific provisions governing different aspects of employee health and safety.
PEOSHA further prohibits any person from discharging, disciplining, or discriminating against an employee because they have filed a complaint, instituted a proceeding or testified in a proceeding, or exercised any right under the Act. +N.J. Stat. § 34:6A-45(a).
Employees may file a complaint of such a violation with the Commissioner of the Department of Labor within 180 days of learning of the discrimination. +N.J. Stat. § 34:6A-45(b).
Cell Phone Use While Driving
With very limited exceptions, drivers are prohibited from using their cellular telephones unless it is a hands-free wireless device. +N.J. Stat. § 39:4-97.3(a).
The statutory definition of use includes text messaging. +N.J. Stat. § 39:4-97.3(b).
New Jersey Smoke-Free Air Act
The New Jersey Smoke-Free Air Act bans smoking in indoor public places and workplaces with few exceptions. +N.J. Stat. § 26:3d-55.
Building owners and operators are required to ensure compliance with the Act and to post signs indicating that smoking is prohibited except in designated areas and that violators are subject to a fine. +N.J. Stat. § 26:3d-57; +N.J. Stat. § 26:3d-62.
If after receiving written notice an indoor public place or workplace fails to comply with the act, they are subject to fines. +N.J. Stat. § 26:3D-60.
Employers may not refuse to hire or take an adverse action against an employee because of their use or non-use of tobacco products unless there is a rational basis for the action that is reasonably related to the employment. +N.J. Stat. § 34:6B-1.
Meal Breaks and Rest Breaks
There is no specific requirement that employers provide adults with a specified rest or break period.
However, New Jersey law provides that all of the time the employee is required to be at his or her place of work or on duty shall be counted as hours worked. +N.J.A.C. 12:56-5.2(a).
Minors under the age of 18 cannot work for more than five continuous hours without a lunch period of at least 30 minutes. +N.J. Stat. § 34:2-21.4.
Employers with minor employees must post an abstract of the child labor law and for each minor employed, listing, among other things, the beginning and ending of their daily meal period. +N.J. Stat. § 34:2-21.5.
As mandated by the New Jersey Department of Labor and Workforce Development, every employer covered by the state child labor laws must post the New Jersey Schedule of Hours of Minors Under 18 Years of Age Poster.
Wage and Hour Requirements
Frequency of Payment
Employers must pay their employees in full at least twice each calendar month on regular paydays designated in advance. +N.J. Stat. § 34:11-4.2.
If a payday falls on a nonwork day, employees must be paid on the immediately preceding work day unless otherwise provided in a collective bargaining agreement. Payment must be made no later than 10 days after the end of a pay period.
Employers in a bona fide executive position may be paid less frequently so long as they are paid at least once during each calendar month on a regularly established schedule.
Notification of Payday
At the time of hiring, employers must notify employees of the regular payday and of the rate of pay. +N.J. Stat. § 34:11-4.6(a).
Employers must provide notice to employees of any changes to the rate of pay or the regular pay day prior to the change. +N.J. Stat. § 34:11-4.6(b).
Changes to Pay
Employers must notify employees at the time of hiring of their rate of pay and are also required to notify employees of changes in pay rates or pay days prior to implementing such changes. +N.J. Stat. § 34:11-4.6(a), +N.J. Stat. § 34:11-4.6(b).
Reductions cannot be made retroactively or bring the rate of pay below minimum wage.
Wage deductions from employees' paychecks are generally prohibited unless required or permitted by state or federal law or where withheld for a specified purpose. +N.J. Stat. § 34:11-4.4; +N.J.A.C. 12:55-2.1.
For each pay period in which deductions are made, employers must provide the employee with a statement of deductions. +N.J. Stat. § 34:11-4.6(c).
Reporting Time Pay
In New Jersey, an employee who by the request of an employer reports for duty must be paid for at least one hour at the employee's regular rate. +N.J.A.C. 12:56-5.5.
This provision does not apply to an employer who made available the minimum number of hours agreed upon between the employer and employee before the work began.
Medical Tests for Employment
Employers requesting or requiring applicants or employees to have medical tests as a condition or employment or continued employment may not deduct the cost of such examination from wages of that individual. +N.J. Stat. § 34:11-24.1.
Employers must reimburse applicants or employees who pay for such tests.
Unemployment Notice at Time of Termination
Employers are required to complete and provide any employee who is separated from employment for any reason with a Form BC-10, which provides employees with a notice of their right to file an unemployment claim, as well as certain information about the employer and their separation. +N.J.A.C. 12:17-3.1. As mandated by the New Jersey Department of Labor, New Jersey employers must provide a copy of the New Jersey BC-10 Form.
Paid Time Off
Employers are not required to pay employees for hours worked due to holidays, vacation, lunch hours, or similar reasons. +N.J.A.C. 12:56-5.2(b).
However, employers must uniformly administer benefits in accordance with an established policy, employment agreement or union contract. If an employer fails to follow their policy, agreement, or contract, employees may have a basis for a claim.
Time Off for Jury Duty
Public employees must be excused from employment for jury duty. +N.J. Stat. § 2B:20-16. In addition, they are entitled to their usual compensation in lieu of payment for their jury service.
Employers cannot penalize any employee because they have jury duty. +N.J. Stat. § 2B:20-17(a).
Employers violating this provision are guilty of a disorderly persons offense and may be subject to a civil action for economic damages by the employee. +N.J. Stat. § 2B:20-17(b).
An employee may bring a civil action within 90 days from the later of the completion of jury duty or the date of the violation. +N.J. Stat. § 2B:20-17(c).
New Jersey Family Leave Act
Unlike the federal FMLA, the NJFLA does not provide coverage for the employee's own serious health condition.
New Jersey Family Leave Insurance Law
The New Jersey Family Leave Insurance Law, commonly referred to as the Paid Family Leave Law (PFLL) extends the state's Temporary Disability Benefits Law to allow eligible employees to collect benefits while on a leave of absence to care for certain family members with serious health conditions. +N.J. Stat. § 43:21-27(o); +N.J. Stat. § 43:21-38; see FMLA: New Jersey.
Employers should note that, unlike the NJFLA, the PFLL does not provide an entitlement to leave time.
All New Jersey employers subject to the unemployment compensation law are subject to the PFFL. +N.J. Stat. § 43:21-27(a)(1).
Every employer subject to the Family Leave Insurance provisions of the New Jersey Temporary Disability Benefits Law must post the New Jersey Family Leave Insurance Poster.
State Employees' Maternity Leave Rule
State employees who request leave with or without pay because of a disability due to pregnancy are entitled to leave under the same terms and conditions as those applicable to such employees for sick leave or leave without pay. +N.J.A.C. 4A:6-1.8(a).
The LAD prohibits discrimination against an individual based on a liability for service in the Armed Forces of the United States.
The law defines a person with a liability for service as being an individual who may be called to active duty because he or she either:
- Is a member of the National Guard, naval militia, or the armed forces reserves; or
- Is subject to a national selective service system.
The Soldiers' and Sailors' Civil Relief Act of 1979 provides that employees who leave employment to perform military service must be restored to employment provided that he or she:
- Receives a duly executed certificate of completion of military service;
- Remains qualified to perform the duties of the position; and
- Makes an application for reemployment within 90 days after being relieved from service.
Employees must be reinstated to the same position or to a position of like seniority, status and pay unless the employer's circumstances have changed and make it impossible or unreasonable to do so.
If such circumstances exist, the employer must restore the individual to any available position for which they are able or qualified to perform the duties if the individual makes such a request.
In addition, persons in the military service must be reinstated after temporarily leaving their position for up to three months in a four year period for military training provided they are qualified and apply for reemployment within 10 days after completing the temporary period of service. +N.J. Stat. § 38:23C-20(b).
Employees restored to a position are to be considered to have been on furlough or a leave of absence during the period of their military service, and may not be discharged from such position without cause within one year after such restoration. +N.J. Stat. § 38:23C-20(d).
Public employees may not be laid off while on a military leave of absence for active service in the armed services during war or emergency. +N.J. Stat. § 11A:8-1(i).
Leave to Provide Disaster Relief Services
State employees who are certified disaster service volunteers of the American Red Cross shall be entitled to a leave of absence with pay for not more than 10 work days each year upon the request of the American Red Cross and with the approval of the employee's appointing authority. +N.J. Stat. § 11A:6-11.1.
An additional 10 days without pay shall be given in certain circumstances if the services are to be performed in the state.
Domestic Violence Leave
The New Jersey Security and Financial Empowerment Act (the NJ SAFE Act) requires NJ employers with 25 or more employees to provide up to 20 days of unpaid leave to an employee who is a domestic violence or sexual violence victim, or whose covered family member is a victim. +N.J. Stat. § 2C:25-19. The SAFE Act contains specific eligibility requirements. See Other Leaves: New Jersey.
If an employee wants to take planned (foreseeable) leave under the NJ SAFE Act, the employee must give the employer advance written notice as far in advance as is reasonably practicable. The NJ SAFE Act does not require written advance notice for emergency situations.
Leave under the NJ SAFE Act may also be covered under the federal Family and Medical Leave Act (FMLA) and/or New Jersey Family Leave Act (NJFLA). Leave under the NJ SAFE Act will run concurrently with any other leave entitlements and/or paid PTO time.
New Jersey employers subject to the NJ SAFE Act must post the New Jersey SAFE Act Poster. An employer may provide a notice advising an employee of rights under the NJ SAFE Act upon notice that the employee was a victim or may include a summary of the leave rights in an employee handbook.
Employers should be aware of the NJ SAFE Act and modify their existing policies, practices and handbooks to comply with the law.
Paid Sick Leave
The state law preempts existing local paid sick leave laws and prohibits counties and municipalities from adopting paid sick leave laws going forward.
An employer means any person, firm, business, educational institution, nonprofit agency, corporation, limited liability company or other entity that employs workers in the state, including a temporary help service firm. There is no exemption for smaller employers.
An employer does not include a public employer that is required to provide employees with sick leave with full pay under any other state law, rule or regulation.
An employer must provide earned sick leave to each employee working for the employer in New Jersey. An employee means an individual engaged in service to an employer in the business of the employer for compensation.
The law does not apply to employees covered by a collective bargaining agreement (CBA) in effect on October 29, 2018, when the law takes effect, until the CBA expires.
An employee does not include:
- A construction industry employee working under a CBA;
- A per diem health care employee; and
- A public employee who receives paid sick leave under any other state law, rule or regulation.
An employee may use earned sick leave for any of the following reasons:
- 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 or sexual 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.
The term family member is broadly defined.
An employer is in compliance with the paid sick leave law if it offers paid time off (including, but not limited to, personal days, vacation days and sick days) that may be used for the same purposes and in the same manner as provided by the paid sick leave law and accrues at a rate equal to or great than the rate required by the law. +N.J. Stat. § 34:11D-2(b).
The New Jersey Law Against Discrimination (NJLAD or LAD) prohibits employers from taking adverse employment actions against individuals because of their race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer. +N.J. Stat. § 10:5-12(a).
It is also a violation of the LAD to retaliate against an individual for exercising their rights thereunder. +N.J. Stat. § 10:5-12(d).
Nepotism in employment is not prohibited by the LAD's provision prohibiting discrimination based upon familial status. See Bumbaca v. Township of Edison, +373 N.J. Super. 239 (App. Div. 2004) certif. denied, +182 N.J. 630 (2005).
A woman has a right to breastfeed her child in public or any place where she is permitted to be. +N.J. Stat. § 26:4B-4.
Although the statute does not specifically mention employers, it can be construed to include places of employment.
Same-Sex Partner Benefits
In New Jersey, if benefits coverage is provided to a spouse, then coverage must be provided to a domestic partner as well as civil union partner or valid civil unions or same-sex marriages from other jurisdictions.
See +N.J. Stat. § 17B:27-46.1bb (domestic partner);
See New Jersey Dept. of Banking and Insurance, Bulletin No. 07-04.
The LAD protects rehabilitated drug users. It does not, however, protect current abusers. See Bosshard v. Hackensack Univ. Med. Ctr., +345 N.J. Super. 78 (App. Div. 2001).
Random drug testing of current employees is not permitted unless the public interest outweighs the employee's right to privacy when dealing with a safety-sensitive position. See Hennessey v. Coastal Eagle Point Oil Co., +129 N.J. 81 (1992).
Even for employees in safety-sensitive positions, employers should implement procedures allowing for as much privacy and dignity as possible; provide notice of the program, its details, and the consequences of positive tests or refusals; conduct only those tests necessary to determine the presence of drugs in the urine; and may not disclose any information obtained. Similar to federal law, employers may also conduct drug tests where they have reasonable suspicion that the employee is under the influence of drugs or alcohol while working.
Like federal law, New Jersey law permits employers to review employee emails. Employers should implement electronic resource use policies to reduce employee expectations of privacy to the extent permitted.
Employers should note that monitoring employee email and computer usage imposes a duty upon employers to prevent employees from intentionally harming others or from engaging in activities deemed to be a threat or an unreasonable risk of harm to others. See Doe v. XYZ Corp., +382 N.J. Super. 122 (App. Div. 2005) (employer has duty to report child pornography).
The New Jersey Supreme Court recognizes a difference between emails sent on a workplace computer using the employer's email account versus emails sent through the employee's personal email account.
The employee may retain a privacy interest in the latter, even if sent or received on a workplace computer, and an employer should be cautioned about reading such emails, even if it has a clear policy stating that anything on a workplace computer may be accessed. See Stengart v. Loving Care Agency, +201 N.J. 300 (2010).
The New Jersey Code of Criminal Justice, like the Employee Polygraph Protection Act, generally prohibits the use of polygraph tests both prior to or during employment. +N.J. Stat. § 2C:40A-1.
A person commits a disorderly persons offense by influencing, requesting, or requiring an employee or prospective employee to take or submit to a lie detector test as a condition of employment or continued employment.
The New Jersey Wiretapping and Electronic Surveillance Control Act prohibits the interception of a wire, electronic or oral communication, and the disclosure or use of the contents of an interception or evidence derived from it. +N.J. Stat. § 2A:156A-3.
The statute makes an exception if the person intercepting is a party to the communication or if one party has given prior consent. +N.J. Stat. § 2A:156A-4.
It also contains a business extension exception that allows employers to monitor employee conversations provided that:
- The service provider or subscriber furnished the intercepting equipment; and
- The employee used the equipment in the ordinary course of business.
Public Employee Pursuit of Public Office
New Jersey Courts have found that a city fire department's rule requiring employees to take a leave of absence before running for public office was unconstitutional. See DeStefano v. Wilson, +96 N.J. Super. 592 (Law Div. 1967).
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