Applying for Work Post Pandemic: Employees’ Rights Under Federal and New Jersey Law

As the COVID-19 pandemic shows signs of winding down, employers across the state have reported that they cannot find enough workers for their businesses. Many have blamed the expanded unemployment benefits but that alone does not explain the mass shortage. Instead, many of the industries reporting the most issues are the ones with a less than perfect track record, with respect to workplace safety, fair wages, and employee satisfaction.

 

In accordance with New Jersey and Federal employment laws, workers are afforded various protections, such as minimum wage and compensation for overtime. These laws additionally prohibit discrimination on the basis of a number of enumerated characteristics such as race, gender, sexual orientation, age, etc. Job applicants are afforded these protections as well. However, enforcing these rights may require the assistance of an experienced employment attorney.

 

Minimum Wage

Under Federal law, specifically the Fair Labor Standards Act, minimum wage as of 2010, is $7.25 per hour. 29 U.S.C. 206(a)(1)(C). For employees who receive tips, such as many restaurant workers, employers must pay a base wage of $2.13 per hour. 29 U.S.C. 203(m)(2)(A); and 29 C.F.R. 531.59.

 

New Jersey law sets an even higher minimum wage, however. Presently, the minimum wage in New Jersey is $12.00 per hour for non-tipped employees, and $7.87 per hour for tipped employees. N.J.A.C. 12:56-3.1; and 12:56-3.5. These figures additionally increase by law each calendar year. For instance, the rate for non-tipped employees rises by $1.00 each year, until it reaches $15.00 in 2024. As for tipped employees, the figure is set to increase to $8.87 on January 1, 2023, and then $9.87 on January 1, 2024.

 

Checking Your Credit History

At the federal level, consumer reporting agencies (companies that collect information about consumers and provide credit reports for a fee), are regulated by the Fair Credit Reporting Act (FCRA). Under the FCRA, the use of a credit report is confined to a small number of situations, which does include employment. 15 U.S.C. 1681b; and N.J.S.A. 56:11-31. However, an employer must obtain an applicant’s written consent before obtaining a credit report. Further, if an employer intends to take an adverse action based upon information contained in a credit report, the employer is required to notify the applicant, provide the applicant with a copy of the credit report, and provide a written disclosure of the applicant’s rights.

 

New Jersey law on the other hand, again takes the protections set forth at the federal level, but takes things a step further. Pursuant to New Jersey law, employers are required to give applicants a written disclosure providing that: “an investigative consumer report commonly includes information regarding the consumer’s character, general reputation, personal characteristics, and mode of living…” N.J.S.A. 56:11-33. Employers are additionally required to provide the applicant with a copy of the report upon request.

 

Checking Your Criminal Record

As of March 1, 2015, many New Jersey employers are prohibited from making inquiries into an applicant’s criminal record. N.J.S.A. 34:6B-14. The Opportunity to Compete Act or “Ban the Box” law applies to employers with at least fifteen (15) employees, and prohibits said employers from making oral or written inquiries, regarding the applicant’s criminal record during the initial employment application process.

 

The “initial application process” refers to the period of time prior to the applicant’s first interview. Consequently, an employer may inquire into an applicant’s criminal history following interviewing a candidate. An inquiry is also permissible if the applicant voluntarily discloses the information during the initial application process. An employer, however, should document that the information was obtained as a result of a voluntary disclosure, if this is the case.

 

Finally, the law prohibits employers from posting job advertisements stating that the employer will not consider an applicant who has been arrested or convicted of a crime.

 

Checking Your Social Media

As of 2013, New Jersey employers may not require nor request that an applicant provide any user name or password, or any other form of access to a personal account through an electronic communications device. N.J.S.A. 34:6B-6. This includes private social media and email accounts.

 

Salary History

New Jersey employers are prohibited from requiring applicants to provide a salary history and further may not screen applicants based on past salary amounts. N.J.S.A. 34:6B-20. However, an employer may consider any information about salary that an applicant provides voluntarily.

 

Discrimination

New Jersey employers may not subject employees or applicants to discriminatory treatment based solely or primarily on a number of protected characteristics. The New Jersey Law Against Discrimination (LAD) prohibits discrimination and harassment on the basis of:

·               Race;

·               Creed (religion);

·               Color;

·               Nationality or national origin;

·               Ancestry;

·               Age;

·               Marital, civil union, or domestic partnership status;

·               Affectional or sexual orientation;

·               Genetic information, or because of the refusal to submit to a genetic test;

·               Pregnancy or breastfeeding;

·               Sex, gender identity or expression;

·               Disability or atypical hereditary cellular or blood trait; or

·               Liability for service in the Armed Forces of the United States or the nationality of any individual.

At the federal level, similar protections are afforded through Title VII of the Civil Rights Act of 1964.

 

Further, both Title VII and NJLAD prohibit workplace sexual harassment. This includes both conduct that creates a hostile work environment based upon sex and demands for sexual favors as a condition of employment.

 

Conclusion

Employment laws can be difficult to navigate and pursuing a potential claim can be arduous. As such, it is often wise to retain an experienced employment attorney who can assist you in prosecuting your claim. Our attorneys at Farrell & Thurman, P.C. possess a wealth of information and have years of experience building strong cases for clients. If you have a claim you wish to pursue, contact us today for a free consultation.