Nobel laureate Bob Dylan was writing about different times, but his song “The Times They Are a-Changin’” surely applies to the state of employment law since New Jersey Gov. Phil Murphy took office in January.
No New Jersey employment lawyer would argue with the general proposition that our state has been far more liberal than most when it comes to protecting employees’ rights. While former Gov. Chris Christie did his best to put a halt to that trend, since his first day in office, our new governor has made it clear the direction he wants to travel. The train is now barreling down the tracks toward more employee rights.
On Day One, Murphy signed an executive order to combat gender pay disparity by precluding state government from asking job applicants about their pay history. Subsequently, Murphy signed the New Jersey Equal Pay Act to further close the pay gap not only for women but all minorities covered by New Jersey’s discrimination law. Christie previously vetoed these measures, arguing they were unfriendly to businesses and a threat to our economy. This new law enables workers to assert claims that go back six years, and sometimes even longer, rather than being bound by the two-year statute of limitations for all other types of state discrimination claims. The NJEPA also provides for treble (triple) damages and other provisions that are also extremely unfriendly to New Jersey employers.
Murphy’s next employment law move was to require employers, regardless of size, to provide workers with paid sick and domestic violence leave. New Jersey is now one of only about 10 states to require such paid leave. Within the past few weeks, he also signed another executive order to create a task force to investigate misclassification of workers as independent contractors rather than employees. This crackdown could result in significant awards against employers.
Finally, the New Jersey Legislature is considering a bill that would cut back the use of non-compete agreements in this state. The bill would enable workers to compete with their former employers in New Jersey if they go to work in New York City, limit any noncompete to one year and allow employees to continue to provide services to customers of their former employers as long as they don’t solicit them for that business. Last, but not least, an employee terminated without good cause could be restrained from competing only if his or her former employer continues to pay the former employee during the noncompete period.
Was Christie correct that these types of measures would be a threat to our economy? That may be overstating it a bit, but not by much. Most people are not against women and minorities earning equal pay for equal or substantially similar work. However, it seems that the pendulum has swung too far the other way when allowing for a six-year or longer statute of limitations and gutting legitimate defenses employers previously had when fighting disparate pay cases. Likewise, while noncompete agreements are overused by employers, requiring employers to pay former employees during their noncompete periods would impose a large financial burden on many employers and be a measure that could cause employers not to operate in the Garden State. A better approach would be to limit noncompete clauses to salespeople or others with access to confidential information that could harm their former employers.
So, gather ’round employers, there’s a battle outside and it is ragin’. The new employment laws will soon shake your windows and rattle your walls, for the times in New Jersey they are a-changin’.
Steve Adler is co-chair of Mandelbaum Salsburg P.C.’s Labor and Employment Law Practice Group and a member of the Litigation Department.