KNOW YOUR RIGHTS
One of the biggest concerns to any organization, regardless of size, must be the well-being of its employees. Skilled employees are the backbone of a successful organization. In the past, these valuable employees did not always get the fair treatment they deserved. As a result, Congress passed numerous laws to ensure that every person gets treated reasonably when at work.
Significant changes to past employment laws placed whole new areas of risk on employers, leaving them to redesign workplace policies in an attempt to limit their exposures. Employers today don’t just need to make sure that they follow all the rules, employees need to follow them as well. To manage this risk, most companies create a human resources team that is able to give advice and look out for the well-being of workers.
The landscape of employment law is continually evolving. With every new piece of legislation or court decision, employers and employees learn about workplace discrimination and employee rights that previously may not have been relevant. To protect both employees and the company, it is important to stay up to date on the risks and issues inherent to the employer-employee relationship.
When you're job hunting, it's important to know your rights. Need to know what employment at will means? Have questions about the arbitration agreement or other documents a new employer wants you to sign? Want information on drug testing? You'll find the answers you need here.
Interviews and Applications
Don't Lie on a Job Application
Lying on a job application may help you get hired, but could cost you later.
Many job applicants try to increase their chances of getting hired by exaggerating--or downright lying about--their experience or credentials. Although this may help you land a job, it is a risky strategy for a number of reasons. Most obviously, if your employer ever finds out that you lied, you might get fired for it. This is especially likely if you lied about something relevant to the job, such as falsely claiming to have a college degree or a required license. And you might have a more difficult time landing a new job once prospective employers find out you were fired.
There is another serious consequence of lying to get a job: If your employer violates your legal rights and you decide to sue, you might lose your case--or receive much less compensation for your damages than you otherwise would have--because of your false statements. If the employer can show that it wouldn't have hired you if it had known of your lies, you probably won't even get a chance to present your claims. Courts have generally found that employees who lied to get a job cannot later come to court and claim the employer fired them illegally. The employer's defense is that you can't claim wrongful termination because you should never have gotten the job in the first place.
This legal defense tactic is called the "after-acquired evidence" theory. Conduct by an employee that has been held sufficiently serious to be considered after-acquired evidence includes:
failing to list a previous employer on a résumé
failing to admit to being terminated for cheating on timecards
failing to reveal a prior felony conviction
lying about education and experience on a job application, and
fabricating a college degree during an interview.
In addition to lying on an application, things you do after being hired and while working for an employer--for example, falsifying company records or removing and copying the company's confidential financial statements--can also be considered after-acquired evidence. In this situation, you may still be able to bring your claims in court, but the employer will argue that your damages--for example, for lost wages following a termination--should be cut off on the date you committed misconduct, because the employer had legitimate reason to fire you from that point forward.
If you did lie on your job application or résumé, you may not be completely out of luck. Your employer may use the after-acquired evidence defense only if the employer can show that you would have been fired--or not hired in the first place--had the employer known the truth. To prove this, the employer will have to show that your falsehoods were related to the job and constituted grounds for termination.
Employment At Will: What Does It Mean?
If you are employed at will, your employer does not need good cause to fire you.
Job applicants and new employees are often perplexed to read--in a job application, employment contract, or employee handbook--that they will be employed "at will." They are even more troubled when they find out exactly what this language means: An at-will employee can be fired at any time, for any reason (except for a few illegal reasons, spelled out below). If the employer decides to let you go, that's the end of your job--and you have very limited legal rights to fight your termination.
Many employers take pains to point out, in their written policies, applications, handbooks, job evaluations, or other employment-related documents, that their employees work at will. If you are currently employed, look through your employment documents -- particularly those you have signed -- to see whether any of them mention at-will employment. If you have signed a document agreeing that you are an at-will employee, that's probably the end of the story.
Many employers ask new employees to sign a statement acknowledging that they are employed at will: that is, that they can be fired at any time, for any reason. You may have already signed such a statement as part of the application process. If not, however, and if you were led to believe that you would have job security or could be fired only for good cause, you should think carefully before signing this type of agreement.
If you have not signed an at-will agreement, check your employee manual or other written workplace policies. Do they state that you can be fired at any time? That you can be fired without cause? Even if your employer does not use the term "at will," statements that you can be fired without good cause or "for any reason" are indications that your employer follows an at-will policy.
On the other hand, some employers have written policies that require good cause to fire, provide an exclusive list of reasons for which employees can be fired, or otherwise provide employees with some job protections. If your employer has adopted these kinds of policies, you are entitled to rely on them.
Similarly, if you have signed an employment contract that promises job security, you are not employed at will. For example, if you have a two-year contract that states you can be fired during the contract term only for committing a crime, then you are not an at-will employee. If you are fired for any reason not specified in the contract, you may well have a legal claim against your employer for breach of contract.
Even if you are an at-will employee, you still cannot be fired for reasons that are illegal under state and federal law. In these situations, the government has decided to make an exception to the general rule of at-will employment.
For example, if your employer is subject to federal and state laws prohibiting job discrimination (as all but the smallest employers are), you cannot be fired because of certain characteristics, such as your race, religion, or gender. Similarly, you cannot be fired because you have complained about illegal activity, about discrimination or harassment, or about health and safety violations in the workplace. And you cannot be fired for exercising a variety of legal rights, including the right to take family and medical leave, to take leave to serve in the military, or to take time off work to vote or serve on a jury.
Signing an Arbitration Agreement With Your Employer
Many employers ask employees to sign arbitration agreements, in which they give up their right to sue in court over job-related issues such as wrongful termination, breach of contract, and discrimination. An employee who signs an arbitration agreement promises to pursue any legal claims against the employer through arbitration, rather than through a lawsuit. It might not sound like a big deal when you're just starting a new job and don't see any legal disputes on the horizon. But if your rights are later violated at work, that arbitration agreement might come back to haunt you. It could even mean the difference between winning or losing your case.
An arbitration differs from a court case in several ways, and many of these differences work against employees.Most important, an arbitration is heard and decided by an "arbitrator" -- a private citizen (often a retired judge) who is paid by one or both sides to listen to the evidence and witnesses. That means you won't have a jury hear your story -- and juries are often sympathetic to employees.
In addition, the arbitration process limits the amount of information each side can get from the other. In employment cases, this generally hurts the employee, because the employer is usually the one in possession of most of the documents and information relating to the employee's case.
Finally, an arbitration usually cannot be appealed, which makes arbitration awards more final than court verdicts. If you think the arbitrator's decision is unfair or wrong, you won't get a second chance to argue your case before a higher court -- a second chance that you might have gotten had you gone to a court trial.
An arbitration does have some advantages over a court trial. Arbitrations are less formal than court trials, and this informality can make the process easier for all involved, especially employees who are not used to litigation. Also, cases in arbitration are heard and decided much more quickly than court cases, which can take several years from start to finish.
If your employer asks you to sign an arbitration agreement, you can refuse, but that may put your job in jeopardy. Usually, an employer can rescind an employment offer if a prospective employee refuses to sign the arbitration agreement. And an employer can fire an at-will employee who refuses to sign one. Therefore, declining to sign the agreement could jeopardize your job.
Some employers will negotiate this point, however, especially if they are more excited about you than they are about Arbitration. If you are a highly sought after prospect, or if you are a valued employee in your company, your employer may allow you to refuse to sign rather than give you up.
If your employer won't let you outright refuse to sign, it may allow you to negotiate certain terms of the agreement to make it more fair to you. Although an employer may not agree to your requests, it is not likely to fire you for asking. Negotiating your agreement to arbitrate is no different from discussing your salary or benefits. The employer is negotiating for its best interest, as you are for yours.
You may have to consult with an attorney for help negotiating the fairest agreement possible.
Signing an Noncompete Agreement With Your Employer
Some employers ask new employees to sign a noncompete agreement, in which the employee promises not to start a competing business or go to work for a competitor after leaving the current employer. These agreements are not legal in every state. Even where they are legal, they must be reasonable, which is usually interpreted as limited in terms of time period, geographic area, and number or type of competitors they cover. If you are presented with a noncompete agreement, you may want to talk to a lawyer to make sure that it's legal -- and find out whether you should try to limit its application (for example, so that it is effective only if you quit your job, not if you are fired).
In New Jersey these agreements are legal but frowned upon by the courts because the legal system puts a high value on a person's right to earn a living. A noncompete agreement won't be enforced if a court find that it is unreasonable. An agreement may be held unreasonable because it:
lasts for too long
covers a geographical area that is too large
is too broad in the types of business it declares off limits to the employee, or
applies to employees who never had access to the employer's trade secrets or other valuable information in the first place. (In this situation, there's no compelling reason to allow the employer to prevent the employee from working for a competitor.)
If you're asked to sign a noncompete agreement, your best first step may be to negotiate the finer print with your employer. For example, you may want to consider the following:
If your employer asks you to sign a noncompete when you're promoted to a new position, it's reasonable to ask for money to compensate you for the rights you are giving up. Keep in mind, though, that this will almost certainly prevent you from later claiming that the clause should not be enforced against you. Because you got something valuable for signing the agreement, you probably won't be able to get out of it later.
If presented with a noncompete clause, demand that it take effect only if you leave the job voluntarily. Otherwise, the clause could limit your employment opportunities if you are fired or laid off.
Ask for the prohibited competition to be clearly identified and limited. Many employers fear competition with only one or two specific companies and will readily name their names in your agreement.
Signing an Nondisclosure Agreement With Your Employer
A nondisclosure agreement (NDA) is a contract in which you promise not to reveal the company's confidential information. An employer may ask you to sign one if you will receive, for example, confidential customer lists, formulas for products, or manufacturing specifications to do your work. If you are asked to sign a nondisclosure agreement, read it carefully and make sure you understand the terms, including which information is considered confidential, how you should handle that information, and what penalties you might face if you breach the agreement.
Nondisclosure agreements are one of the best ways to protect trade secrets -- valuable confidential information that businesses want to keep under wraps. That information could be a sales plan, a list of customers, a manufacturing process or a formula for a soft drink. By using a nondisclosure agreement, you can ensure that your secrets stay secret -- or have legal recourse if they are misused or disclosed to the wrong parties.
If you have a nondisclosure agreement with someone who uses your secret without authorization, you can ask that a court order the violator from making any further disclosures. You can also sue for damages.
NDAs are often categorized as either "mutual" or "one-way." A mutual NDA is one in which both parties are exchanging confidential information -- for example, you provide secret information for a company to evaluate and they provide you with secret information about their marketing strategy. A one-way agreement is used when only one party is making a disclosure -- for example, when you explain your secret to a contractor or investor.
There are five important elements in a nondisclosure agreement:
definition of confidential information
exclusions from confidential information
obligations of receiving party
time periods, and
Some agreements are titled Nondisclosure or Confidentiality Agreements, yet their terms have the opposite effect. Instead of agreeing to secrecy, the party with the secret effectively waives any claim of trade secret confidentiality.
If you sign one of these waiver agreements, you could lose the confidentiality of your trade secret and have no legal recourse. A waiver agreement usually contains language like the following (alternate terms appear in parentheses):
This agreement does not create a confidential relationship.
No confidential relationship is established or implied by the exchange (disclosure) of information (submission).
The exchange (disclosure) of information (submission) is not made in confidence.
No obligation of any kind is created (assumed, implied, imputed) by the receipt (exchange, disclosure) of information (submission).
Signing an Nonsolicitation Agreement With Your Employer
In a nonsolicitation agreement, you agree not to solicit the company's customers and/or its employees to a competing venture once you are no longer working for the company. Are you bringing customers or clients to your new employer? If so, you might want to try to exclude those people (or some of them, such as your friends and family members) from the nonsolicitation agreement. You should also make sure that the agreement prohibits only solicitation, not customers or employees who voluntarily follow you out the door. This is another area where it might make sense to talk to a lawyer before you sign.
Drug Tests for Job Applicants
Can Prospective Employers Require you to Take a Drug Test?
Many employers require job applicants to take a drug test—particularly those applicants who reach the final stages of the selection process. Most private employers are not required to test for alcohol or drug use. The big exception to this rule is for transportation and other safety-sensitive industries that are regulated by certain federal agencies such as the Federal Highway Administration, the Federal Aviation Administration, and the U.S. Coast Guard. For example, those in the trucking industry, aviation, or mass transit, as well as those who contract with the Department of Defense or NASA, may be required to test at least some employees for alcohol and drug use.
So if it's not usually required, why do employers drug test? Here are a few reasons:
To qualify for workers' compensation discounts. Many states offer employers a discount on their workers' compensation insurance premiums if they take certain steps to maintain a drug-free workplace, which may include testing job applicants.
To avoid legal liability. If an intoxicated employee harms someone on the job, the employer could be legally liable for those injuries. Workplace drug and alcohol use may also violate OSHA and state occupational safety laws.
To maintain productivity and save money. According to the federal government, drug and alcohol use takes a toll on the American workplace. Problems relating to drug and alcohol abuse cost $80 billion in lost productivity in a single year. Employees who use drugs are three times more likely to be late to work, more than three-and-a-half times more likely to be involved in a workplace accident, and five times more likely to file a workers' compensation claim.
There are legal limits on drug testing. Courts and legislators have recognized that drug testing implicates privacy rights. Additionally, there are possible disability or race discrimination claims that might arise when an employer requires an employee or possible employee to undergo a drug test. These tests don't just reveal current drug use—that is, intoxication when the test is taken. They also show past drug use, including use of legal drugs and use of drugs on the employee's own time. And, the test procedures require the test taker to surrender bodily fluids, sometimes under close supervision.Because drug testing is intrusive, state and federal laws put some limits on when, how, and whether it can be done. Generally, current employees have greater rights in this area than applicants, because employees already hold a job that they stand to lose if the test comes back positive; applicants stand to lose only an opportunity to get a job. Prospective employers can't force you to take a drug test. However, they can generally require you to take one as a condition of employment, as long as they follow the rules. If you don't want to take the test, you can take yourself out of the running for the job. There are notice and other procedural requirements that an employer must follow in the State of New Jersey before administering drug testing.
You may have to consult with an attorney if you feel your rights have been violated or may be violated when it comes to drug testing.
Your Rights Against Workplace Discrimination, Harassment & Retaliation
Your Rights Against Workplace Discrimination and Harassment
In New Jersey, state law prohibits discrimination based on:
Sex (including pregnancy, childbirth, and related medical conditions)
Disability: past or present physical or mental
Age (18 to 70)
Marital status (includes civil union or domestic partnership status)
Sexual orientation (includes affectional orientation and perceived sexual orientation)
Atypical hereditary cellular or blood trait
Accompanied by service or guide dog
Under federal law, companies with 15 or more employees are covered by Title VII, the primary law prohibiting employment discrimination, the Americans with Disabilities Act, which prohibits discrimination on the basis of disability, and the Genetic Information Nondiscrimination Act, which prohibits discrimination based on genetic information. Companies with 20 or more employees are subject to the Age Discrimination in Employment Act (ADEA), the federal law that prohibits discrimination against employees 40 years or older. Companies with four or more employees must comply with the employment discrimination provisions of the Immigration Reform and Control Act, which prohibits discrimination on the basis of citizenship status. And all companies of any size must pay men and women equally for doing equal work, by virtue of the Equal Pay Act.
In New Jersey, companies with one or more employees are subject to the state's antidiscrimination law.
Fighting Sexual Harassment
In legal terms, sexual harassment is any unwelcome sexual advance or conduct on the job that creates an intimidating, hostile, or offensive working environment. In real life, workplace sexual harassment ranges from repeated offensive or belittling jokes to a workplace full of offensive pornography (creating a hostile work environment) to an outright sexual assault. Although sexual harassment most often takes the form of men harassing women, it can happen to men and women, gay and straight -- in other words, sexual harassment is an equal opportunity offense.
Fortunately, state and federal laws protect workers from sexual harassment on the job -- the same laws that protect workers from discrimination based on gender. At the federal level, Title VII of the Civil Rights Act forbids harassment. In addition, most states have their own fair employment practices laws that prohibit sexual harassment, many of them stricter than the federal law.If you are being sexually harassed at work, there are a number of things that you should do to protect yourself.
First ask the harasser to stop. If you are concerned for your safety or you have asked the harasser to stop but the harassment continues, complain to a supervisor. If this does not end the harassment, you must report the matter to a higher level in the company.
Check your company's employee handbook, personnel policies, or manual. Is there a sexual harassment or complaint policy? If so, follow it. If not, ask your supervisor or someone in the human resources or personnel department how to make a sexual harassment complaint. If you don't get the help you need, move up the chain of command to managers and executives, documenting along the way.
Although it is often difficult to make a complaint at work, and you may prefer to skip this step, don't. The U.S. Supreme Court has said that employees who fail to use their employer's internal complaint procedure to make the company aware of sexual harassment, and to give the company a chance to stop it, may not be allowed to hold the company liable in a lawsuit. This means that you are likely to lose in court, should it come to that, if you don't complain within the company first. Even if your company doesn't have a formal complaint procedure, you should put the company on notice of the harassment. You can do this by making a complaint to the human resources department, telling your supervisor (or his or her supervisor) about the problem, or informing a company executive.
It is very important to document what is happening to you, and what you are doing to try to stop it, should you ever have to prove your case to a company investigator, a government agency, or a jury.
Start by collecting as much detailed evidence as possible about the harassment. Be sure to save any offensive letters, photographs, cards, or notes you receive. If you were made to feel uncomfortable because of jokes, pin-ups, or cartoons posted at work, confiscate them -- or at least make copies. An anonymous, obnoxious photo or joke posted on a bulletin board is not anyone else's personal property, so you are free to take it down and keep it as evidence. If that's not possible, photograph the workplace walls. Note the dates the offensive material was posted -- and whether there were hostile reactions when you took it down or asked someone else to do so.
Also, keep a detailed journal about incidents of harassment. Include the names of everyone involved, what happened, and where and when it took place. If anyone else saw or heard the harassment, note that as well. Be as specific as possible about what was said and done -- and how it affected you, your health, or your job performance. Keep your journal and notes at home or in a safe place outside of work.
Make sure you have copies of your performance evaluations and other important personnel documents. In fact, you may want to ask for a copy of your entire personnel file before complaining about a harassing coworker. Your records can be particularly persuasive evidence if your employer retaliates against you for complaining -- which is also illegal. For example, you'll want a copy of your records if you've had positive performance evaluations until you complain, and then your employer tries to transfer, demote, or fire you, or claims your job performance is poor.
There are certain time limitations by which you must either report the discrimination to a government agency or to file a lawsuit. Please consult with a lawyer to protect your ability to file a lawsuit.
Your Rights Against Age Discrimination
The federal Age Discrimination in Employment Act, or ADEA ( 29 U.S.C. §§ 621-634), is the primary federal law that prohibits employers from discriminating against employees and applicants who are at least 40 years old based on age.
The ADEA protects workers from age discrimination in every phase of the employment relationship, including job advertisements, interviewing, hiring, compensation, promotion, discipline, job evaluations, demotion, training, job assignments, and termination. The U.S. Supreme Court has held that the ADEA prohibits practices and policies that are seemingly neutral, but have a disproportionately negative impact on older workers (disparate impact), as well as those that explicitly treat older workers worse than younger workers (disparate treatment). (See Smith v. City of Jackson, Mississippi, 544 U.S. 228 (2005).)
Not only does the ADEA prohibit employers from discriminating against older workers in favor of those who are younger than 40, it also prohibits employers from discriminating among older workers. For example, an employer cannot hire a 43-year-old rather than a 53-year-old simply based on age.
The ADEA applies to all private employers with 20 or more employees and to federal and local governments. It also applies to state governments, although their employees cannot sue them directly for age discrimination.
The federal Older Workers Benefit Protection Act, or OWBPA (29 U.S.C. § 623 and following), amended the ADEA to make it illegal for employers to use an employee's age as a basis for discrimination in benefits and retirement. Like the rest of the ADEA, the OWBPA only protects people who are at least 40 years old.
The OWBPA prohibits age discrimination in the provision of fringe benefits, such as life insurance, health insurance, disability benefits, pensions, and retirement benefits. Typically, this means that employers must provide equal benefits to older and younger workers. For some types of benefits, however, employers can meet this nondiscrimination requirement by spending the same amount on the benefit provided to each group, even if older workers receive lesser benefits. In some circumstances, employers are also allowed to provide lesser benefits to older workers if those workers receive additional benefits -- from the government or the employer -- to make up the difference.
In New Jersey, the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et. seq. prohibits discrimination based on age. State law is far more liberal in favor of employees than that of Federal law.
Work Place Retaliation: Are You A Whistleblower?
Retaliation occurs when an employer punishes an employee for engaging in legally protected activity. Retaliation can include any negative job action, such as demotion, discipline, firing, salary reduction, or job or shift reassignment. But retaliation can also be more subtle.
Sometimes it's clear that an employer's action is negative -- for instance, when an employee is fired. But sometimes it's not. In those cases, according to the U.S. Supreme Court, you must consider the circumstances of the situation. For example, a change in job shift may not be objectionable to a lot of employees, but it could be very detrimental to a parent with young children and a less flexible schedule.
As long as the employer's adverse action would deter a reasonable person in the situation from making a complaint, it constitutes illegal retaliation.
Under New Jersey law, the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et. seq. protects employees who engage in whistle blowing activities.
Right to Time Off
On top of your employer's vacation, sick pay, or other time off programs, you may be legally entitled to leave from work. Learn more about the Family and Medical Leave Act (FMLA), military leave, parental leave, domestic violence leave, and more.
The Family and Medical Leave Act, or FMLA, provides important rights to employees who need to take family or medical leave -- that is, time off from a job in order to attend to personal and family needs. But these rights under the FMLA rights are limited, and the time off is unpaid. In addition to the federal FMLA, New Jersey has acted its own family and medical leave laws (see State FMLA Laws), some of which cover more workers or provide greater benefits than the federal law. And many employers are picking up where federal and state law leaves off.
Like employers in every state, New Jersey employers must follow the federal Family and Medical Leave Act (FMLA), which allows eligible employees to take unpaid leave for certain reasons. Once an employee’s FMLA leave is over, the employee has the right to be reinstated to his or her position.New Jersey laws also give employees the right to take time off for family and medical reasons. Employees are entitled to the protections of all applicable laws; if more than one law applies, the employee may use the most beneficial provisions.
Your Rights Under Wage & Hour Laws
What is the minimum wage in New Jersey?
The minimum wage in New Jersey is $8.38 as of January 1, 2015.
Is the minimum wage different in New Jersey for tipped employees?
The Fair Labor Standard Act allows employers to pay a lower hourly minimum wage, as long as that wage plus the tips the employee earns adds up to at least the full minimum wage for each hour worked. If not, the employer has to make up the difference. In New Jersey, employers can set the employee's hourly rate as they wish, as long as the employee’s tips bring the total hourly wage up to the state minimum wage. (The state suggests paying employees at least $2.13.)
When am I entitled to earn overtime?
In New Jersey, eligible employees must receive overtime if they work more than 40 hours in a week. Not every type of job is eligible for overtime, however.
Am I entitled to a lunch or rest break?
New Jersey does not require employers to provide lunch or rest breaks. However, you are entitled to be paid if you have to do any work during a break (for example, if you have to cover the phones while you eat lunch). And, generally, you are entitled to be paid for any short breaks (five to 20 minutes) your employer provides; this time is considered part of your workday.
What are wage and hour laws?
Wage and hour laws set the basic standards for pay and time worked -- covering issues like minimum wage, tips, overtime, meal and rest breaks, what counts as time worked, when you must be paid, things your employer must pay for, and so on.
Where do wage and hour laws come from?
The federal wage and hour law is called the Fair Labor Standards Act (FLSA). New Jersey also has its own wage and hour laws. See N.J.S.A. 34:11-56a et seq. An employer who is subject to more than one law must follow the law that is most generous to the employee. For example, the federal minimum wage is currently $7.25 per hour, but employers in New Jersey has a higher minimum wage and must pay the higher amount.
Rights to Privacy in the Workplace
“Workplace Privacy” actually covers a broad range of topics. The traditional employer activities that raise issues of workplace privacy include: drug testing, workplace and employee searches, surveillance by tape recording or video, and monitoring off-duty conduct. The emergence of the Internet and e-mail has created a vast new area of possible privacy rights for employees. Employees' use of this new technology at work has blurred the lines between personal and professional life. Employers have an interest in promoting workplace efficiency and protecting themselves from liability associated with misuse of employer-owned Internet and -mail resources. Advances in technology now make it possible to monitor closely employees' use of the Internet and e-mail. Consequently, employers must be informed as to what privacy rights such monitoring may implicate.
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