On January 10, 2023, Governor Phil Murphy signed Assembly Bill No. 4768, which amends the Millville Dallas Airmotive Plant Job Loss Notification Act (“NJ WARN Act”).  The amendments will take on April 10, 2023, which is 90 days from Governor Murphy’s signing of the bill.

The significant amendments to the NJ WARN Act include the following:

• New Jersey employers with 100 employees will be covered by the law.  This includes both full-time and part-time employees.

• 90 days-notice will be required for mass layoffs, termination of operations, or transfer of operations as defined under the NJ WARN Act.

• Regardless of whether the requisite notice is provided, employers will be required to pay affected employees one-week of severance for each year worked. 

• “Mass layoff” under the NJ WARN Act will mean a layoff that affects at least 50 employees at an establishment or reporting to an establishment in the State of New Jersey. 

• In the event the requisite notice is not provided, employers will be required to pay four (4) weeks of severance.

The Amendments to the NJ WARN Act are extensive.  And, the penalties to employers are significant.  Accordingly, it is imperative that employers consult with legal counsel prior to implementing any action under these amendments.  If you have any questions about the new amendments to the NJ WARN Act, please contact Curcio Mirzaian Sirot LLC.

*    Frank A. Custode, Esq. is the Managing Partner and Chair of the Employment Practice at Curcio Mirzaian Sirot LLC. 

Effective November 1, 2022, New York City employers must include a good faith salary range for every advertised job, promotion, and transfer opportunity.

Who Is Covered?  The law covers all employers with four or more employees or one or more domestic workers.  Employment agencies are also covered by the law.  Note, however, that the law does not apply to temporary help firms, which are defined by the New York City Commission on Human Rights (“NYCCHR”) as “businesses that recruit, hire, and assign their own employees to perform work or services for other organizations.” See New York City Commission on Human Rights May 12, 2022 Salary Transparency In Job Advertisements Fact Sheet. 

What is covered?  Any advertisement – which is defined by the NYCCHR as “a written description of an available job, promotion or transfer opportunity that is publicized to a pool of potential applicants”- for a job, promotion or transfer opportunity that would be performed in New York City is covered by the new law.  See id.  Note that the law applies to positions that would be “performed, in whole or in part, in New York City, whether from an office, in the field, or remotely from the employee’s home.”  See id.

What needs to be included in the job advertisements?  Employers are required to include the minimum and maximum salary “they in good faith believe at the time of the posting” in the job advertisements.  See id.  “Good faith” means “the salary range the employer honestly believes at the time they are listing the job advertisement that they are willing to pay the successful applicant(s).” See id.

How is the law enforced?  The New York City Commission on Human Rights is the agency enforcing this law.  “Employers and employment agencies who are found to have violated the NYCHRL [New York City Human Rights Law] may have to pay monetary damages to affected employees, amend advertisements and postings, create or update policies, conduct training, provide notices of rights to employees or applicants, and engage in other forms of affirmative relief.”   

If you have any questions about the New York City Salary Transparency Law, please contact Curcio Mirzaian Sirot LLC.

* Frank A. Custode, Esq. is a Partner of Curcio Mirzaian Sirot and the Chair of the firm’s Employment Practice.

In light of the COVID-19 pandemic, many employers are opting to allow their employees to work remotely.  To avoid potential liability, employers who choose to implement a remote work policy must ensure that the policy is administered in a manner that complies with applicable anti-discrimination and anti-retaliation laws.  The following should be included in remote work policies implemented by employers:

• Eligibility: Depending on the nature of the employer’s business as well as the employee’s job functions, an employer may not be able to make all of its employees eligible for remote work.  Therefore, a remote work policy should include eligibility criteria.  Eligibility should be based on objective criteria, such as job duties or years of service with the employer.
• Compliance with Existing Company Policies: The remote work policy should make it clear that all existing company policies still apply to employees who are working remotely.
• Set Work Expectations: The policy should make clear that employees need to be accessible during regular work hours and that employees must follow their normal work schedules.
• Equipment: The policy should set forth what equipment, if any, that will be supplied by the employer (i.e., laptop, printer, etc.).  The policy should state that any such equipment is to be used for business purposes only.  The policy should also state what equipment, if any, that must be maintained by the employee, and should make clear that the employer is not liable for any damage to equipment maintained by the employee.
• Protection of Confidential and Proprietary Information: The policy should set forth that remote employees are expected to protect confidential and proprietary information belonging the employer, including the use of locked file cabinets and desks, and regular password maintenance.
• Compensation: The policy should state that there will be no changes to employee salaries for working remotely. Any salary adjustments should be made in accord with the employer’s regular course of business.

If you have any questions about remote work policies and/or need assistance with any remote work issues, please contact Curcio Mirzaian Sirot LLC.

* Frank A. Custode, Esq. is a Partner of Curcio Mirzaian Sirot and the Chair of the firm’s Employment Practice.

Are you planning a major new construction project in New Jersey? There are a great many details that will need to be worked out in advance. One of them will be the potential issue of liquidated damages. These are the funds that cover the cost of continuing the project past the deadline that both parties have agreed on.

How can you qualify for liquidated damages?

The issue of liquidated damages is one that will fall under the heading of construction litigation. There are several factors that need to be in play before you can consider filing for them. You cannot use the threat of filing for these damages as a ploy to speed up the project. In addition, the amount of the damages must be agreed on by both parties in advance.

The rule of thumb for when liquidated damages apply will normally be until the point of substantial completion. This is defined as the date when the project is finished far enough to be put into use. The potential to receive damages runs out because further additions don’t prevent the property from being utilized.

The best way to prevent any misunderstandings is to work out every single detail of your construction contract in advance. This will help you to ease any issues that may arise as a result of miscommunication or unavoidable delays. The sooner you do so, the sooner you can safely begin.

When can you file for liquidated damages?

Is the project you paid for still sitting there half-finished with no sign of progress? You are entitled to take action to collect liquidated damages once the deadline both parties agreed on passes. This condition will apply if the construction project in question has not yet reached the point of substantial completion.

If this is the case, you can file a claim for liquidated damages. These will apply if you have the ability to prove your side of the story. It’s a good idea to document every stage of the project as it develops. This will give you the evidence you need to make your case.

Bullying occurs in many areas and at various stages of life. However, when it happens in New Jersey workplaces, it’s not only intolerable but illegal. It’s worth knowing if workplace bullying constitutes retaliation.

What is workplace bullying?

There are many ways that workplace bullying can occur. If the manager, supervisor or boss of an employee continuously harasses them, it makes for an uncomfortable, hostile working environment. Intimidation and threats may be used. The employee may constantly be on the receiving end of verbal abuse.

Employees often face bullying as a part of workplace retaliation. That retaliation might be due to the employee making a complaint for any number of issues such as harassment, unethical practices or more.

What types of behavior are included in workplace retaliation?

Retaliation against an employee can take place in a variety of ways. The person might be worthy of a promotion or raise and be passed over for it due to unfair treatment. Another example is that a female employee could suffer constant harassment by male employees or supervisors.

Anything that is continuous and that makes a person feel singled out and uncomfortable in the workplace can be considered workplace retaliation.

What is the impact of workplace bullying?

Workplace bullying can cause the victim to suffer serious psychological trauma and other mental health issues. Stress, anxiety and post-traumatic stress disorder are common. It can even lead to physical symptoms like high blood pressure and sleep problems.

People who are the target of workplace retaliation can also have issues finding new employment if they leave their current jobs. There may be a lack of trust in people in the workplace as a result of their experience. The place of employment could also suffer if it gets a bad reputation for those actions.

New Jersey employers are generally not allowed to engage in conduct that may be seen as retaliation against their workers. Workplace retaliation may include demoting an employee who files a sexual harassment complaint or cutting the hours of a worker who takes part in any other protected workplace activity.

When might an act be seen as retaliation?

Courts often look to the timing of an employment decision when determining if it might be perceived as workplace retaliation. For instance, a poor performance review given after an individual reports his or her employer to the authorities may be seen as retaliatory in nature. A worker who is transferred to another department days after filing a harassment claim may also be the victim of employer retaliation.

Does an act create a chilling effect on others?

In many cases, companies take adverse actions against their workers in an effort to dissuade others from speaking up against company policies. For example, someone who speaks out about poor working conditions may be tasked with working in a warehouse alone during a busy time of day. In such a scenario, the firm is likely trying to frustrate that person or create conditions in which that person’s job performance will suffer. After enough time has passed, the organization can claim that this worker was terminated for poor performance as opposed to speaking out against poor working conditions. Other employees will likely take notice of what happened and be less likely to speak out.

If you are the victim of workplace retaliation, you may be entitled to compensation or other forms of relief. Depending on the facts of your case, you may be entitled to return to your job with full pay and benefits.

On October 28, 2021, Governor Kathy Hochul signed legislation that will significantly expand the scope of whistleblower protection for employees in the State of New York. The law goes into effect on January 26, 2022. Here are highlights of the more significant expansions:

• Covered Individuals: Former employees and independent contractors will now be included in the scope of individuals protected under the law.

• Scope of Claims: Employees will now be protected if they disclose or threaten to disclose an activity, policy, or practice of the employer that the employee “reasonably believes” is a violation of a law, rule, or regulation, or “poses a substantial and specific damage to the public health and safety.”  Whereas, prior to this amendment, employees were required to show an “actual violation” of the law.

• Notifications to Employer:  Prior to the expansion of this law, employees were only provided whistleblower protection if they notified their employer before making a disclosure to a public body. Under the amended law, there will now be whistleblower protection for employees who make a “good faith effort” to notify the employer prior the disclosure. In addition, employer notification is not required when “there is an imminent and serious danger to the public health or safety; the employee reasonably believes that reporting to the supervisor would result in a destruction of evidence or other concealment of the activity, policy or practice; such activity, policy or practice could reasonably be expected to lead to endangering the welfare of a minor; the employee reasonably believes that reporting to the supervisor would result in physical harm to the employee or any other person; or the employee reasonably believes that the supervisor is already aware of the activity, policy or practice and will not correct such activity, policy or practice.”

• Retaliatory Action: The whistleblower protection law will now expand “retaliatory action” to include “actions or threats to take such actions that would adversely impact a former employee’s current or future employment.”
• Remedies: The law will now include remedies such as front pay in lieu of reinstatement, a civil penalty not to exceed $10,000.00, and punitive damages if the “violation was willful, malicious or wanton.”
• Publication: The new law also imposes publication requirements on employers.  Specifically, “every employer shall inform employees of their protections, rights and obligations” under the law “by posting a notice” which “shall be posted conspicuously in easily accessible and well-lighted places customarily frequented by employees and applicants for employment.”

The expansion of this law is an important victory for workers in the State of New York.  With its increased scope and remedies, this new law should give rise to increased whistleblower litigation in New York.

If you have any questions about whistleblower protection and/or the expansion of this law, please do not hesitate to contact Curcio Mirzaian Sirot LLC.

* Frank A. Custode, Esq. is a Partner and Chair of the Employment Practice at Curcio Mirzaian Sirot LLC.