November 14, 2019
In 2019, there have been many significant changes to New Jersey law, especially involving employment law. Some of the changes have expanded employer liability. Below are summaries of several changes in and interpretations of law that are worthy of special mention.
- New Jersey Enacts One of the Strongest Wage Theft Laws in the Country
- New Jersey Imposes New Salary History Inquiry Ban
- New Jersey Amends Compassionate Use Medical Cannabis Act to Clarify Employer’s Obligations
- The New Jersey Health Insurance Market Preservation Act (NJHIMPA) Imposes Reporting Obligations on Employers
- New Jersey Enacts Secure Choice Savings Program Act
- New Jersey Appellate Court Rules that Nonprofit Receiving “Nominal” Nongovernmental Public Contributions Not Entitled to Charitable Immunity
- NJ Amends State Consumer Fraud Act to Expand Businesses’ Responsibilities in an Electronic Data Breach
1. New Jersey Enacts One of the Strongest Wage Theft Laws in the Country
The New Jersey Wage Theft Act (NJWTA) enhances the enforcement of New Jersey’s existing wage and hour laws and increases penalties for employers that unlawfully fail to pay wages (including overtime) and/or certain benefits to employees. Among other things, the NJWTA:
- Permits employees to receive three times the amount of wrongfully withheld wages and, in some cases, attorneys’ fees;
- Creates a rebuttable presumption of unlawful retaliation if an employer takes an adverse employment action against an employee within 90 days after the employee has filed a wage complaint with the New Jersey Department of Labor and Workforce Development or a court;
- Creates a rebuttable presumptionthat an employee worked for an employer for the period of time and for the amount of wages alleged in the employee’s wage claim if the employer failsto provide sufficient employee records to the contrary, to the extent such records are required to be kept by the employer under New Jersey wage and hour laws;
- Increases the statute of limitations for an employee to file a wage complaint from two to six years; and
- Imposes criminal penalties of imprisonment for up to five years and a fine of up to $15,000 for employers knowingly engaging in a “pattern of wage nonpayment.”
2. New Jersey Imposes New Salary History Inquiry Ban
Effective January 1, 2020, employers will be prohibited from asking job applicants about their prior salary history, with certain exceptions. In particular, employers will no longer be allowed to:
- Require applicants to disclose their salary histories (which include, but are not limited to, prior wages, salaries, and other compensation and benefits);
- Screen applicants based on their salary histories; or
- Require that applicants’ salary histories satisfy any minimum or maximum criteria.
For more details about this new law, see Seyfarth’s legal update.
3. New Jersey Amends Compassionate Use Medical Cannabis Act to Clarify Employer’s Obligations
New Jersey’s medical cannabis law – the Jake Honig Compassionate Use Medical Cannabis Act (CUMCA) – was amended to prohibit employers from taking an adverse employment action against employees who are registered medical cannabis users based solely on their status as a registrant with the New Jersey Cannabis Regulatory Commission. However, CUMCA still permits employers to prohibit the use of medical cannabis during work hours or in the workplace.
For more details on CUMCA’s impact on the workplace, see Pro Bono Partnership’s website for Jackson Lewis’ analysis of CUMCA.
4. The New Jersey Health Insurance Market Preservation Act (NJHIMPA) Imposes Reporting Obligations on Employers
Pursuant to the NJHIMPA, most New Jersey residents are required to carry minimum essential health coverage. Although the NJHIMPA does not mandate employers to provide health insurance to employees, employers will be required, by March 31, 2020, to submit to the New Jersey Division of Revenue and Enterprise Services (Division) annual IRS Affordable Care Act reporting forms for their New Jersey resident employees.
The Division has a website that details the reporting requirements for employers. Employers that provide health insurance to their employees should:
- Check that website periodically because the Division is still finalizing the reporting obligations, including with respect to which employees must be reported on; and
- Discuss compliance with the NJHIMPA with their insurance carriers and brokers.
5. New Jersey Enacts Secure Choice Savings Program Act
The New Jersey Secure Choice Savings Program Act will require employers with 25 or more employees in New Jersey that do not offer a qualified retirement plan (e.g., a 401(k) or 403(b) plan) to participate in a state-sponsored individual retirement account savings program. The program will be administered by the New Jersey Secure Choice Savings Board.
The Board has not yet released details about how the program will work. The program is required to be operational by no later than March 28, 2021, though the Board can delay implementation for up to 12 months.
6. New Jersey Appellate Court Rules that Nonprofit Receiving “Nominal” Nongovernmental Public Contributions Not Entitled to Charitable Immunity
In F.K. v. Integrity House, Inc., the Appellate Division of the New Jersey Superior Court held that a 501(c)(3) non-profit was not entitled to assert New Jersey’s Charitable Immunity Act as a defense in a personal injury lawsuit because it had only “nominal” nongovernmental public support. The court determined that 2.04% of total revenues – composed of $252,855 in “gross receipts” from two fundraising events and $157,310 in “contributions” from those events – was “too insignificant” as nongovernmental support for this noneducational, nonreligious nonprofit to qualify for charitable immunity.
Although the court did not establish a specific minimum threshold for nonprofits to meet in order to qualify for charitable immunity, its decision nonetheless suggests that charitable immunity might not be available as a defense unless nonprofits can show they have significantly higher levels of nongovernmental public support than the nonprofit in this case had. Note that nonprofits that are organized exclusively for educational or religious purposes are not required to show that they receive nongovernmental public support in order to qualify for charitable immunity.
For more details about the court’s decision, see Capehart & Scatchard’s legal update.
7. NJ Amends State Consumer Fraud Act to Expand Businesses’ Responsibilities in an Electronic Data Breach
The New Jersey Consumer Fraud Act (Act) has been amended to expand businesses’ notification requirements in the event of a data breach. Under the Act, businesses (including nonprofit corporations) that operate in New Jersey must notify customers when there is a breach of security with respect to the businesses’ electronic records that contain customers’ personal information. If a breach occurs, a business must first notify the State Police. Once the State Police clears the business to do so, the business must then notify customers who may have been affected as expediently as possible. A nonprofit can do so by a variety of methods, such as written notice or by substitute notice, including notice by email.
The amendments broaden the scope of a customer’s “personal information” to include additional elements, and also add two provisions relating to how a business should notify its customers of a security breach. To learn more, please refer to our full alert on this matter here.
If you have any questions regarding these laws, please contact Alexandra Kilduff, Esq., Pro Bono Partnership New Jersey staff attorney at firstname.lastname@example.org or 973-240-6955 ext. 305.
This document is provided as a general informational service to volunteers, clients, and friends of Pro Bono Partnership. It should not be construed as, and does not constitute, legal advice on any specific matter, nor does distribution of this document create an attorney-client relationship.