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EANJ's professional
staff help members solve their employee relations problems
with a healthy dose of common sense, business savvy and
practical experience. Regardless of the amount of time spent
on an issue, each member benefits from the collective experience
of the entire membership.
EANJ does not render legal advice, legal opinion or engage in the practice
of law. For such advice or opinion the services of an attorney competent in the
areas of labor and/or employment law should be retained.
In 2007, the EANJ Law Knowledge Center fielded over 6,000 telephone calls and emails,
on dozens of different topics, including:
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If an employee fails to return company property upon termination,
may the employer deduct the cost of the property from
the employee's final paycheck?
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Under
what circumstances can an employer administer a drug
test?
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Should
an employer have a probationary period for new employees?
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How
can I avoid the Employee Handbook from being made an
enforceable contract?
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What
are the most common employee
classifications?
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An exempt employee wants to work in a non-exempt position
to earn extra money...what should the company do?
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Should
a company have a leave policy for employees that are
not eligible for a leave under the Family Medical Leave
Act?
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How
should a company approach disciplinary matters?
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How
can an employer legally prohibit the distribution of
union literature?
For the response, simply click
the question. This information is designed to provide
accurate information in regard to the subject matter covered.
It is published with the understanding that EANJ is not
engaged in rendering legal services and should not be taken
as legal opinion.
HELPLINE RESPONSES
1.
New Jersey Wage Payment Law does not permit deductions from
an employee's paycheck for unreturned property. The only
payroll deductions permitted by law in New Jersey are stated
in N.J.S.A. 34:11-4.4. Earned wages are viewed as an employee's
property, and property can only be taken from an individual
using due process of the law, not by making deductions from
a paycheck.
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2.
For legal and other reasons, it is important to include
some provision in an employee handbook on the subject of
drugs and alcohol in the workplace.
While,
with some exceptions, testing employees for substance abuse
is not mandatory, it should be recognized that while a program
which does not include provision for testing and which merely
prohibits "being under the influence" or "impaired" may
be reasonably effective with respect to users of alcohol,
it will be of limited effectiveness against users of drugs.
Not only are these terms imprecise, but it is extremely
difficult even for trained observers to detect or identify
the symptoms or effects of drug use. Some symptoms and behavior
typically associated with drug use can be the result of
circumstances that are not drug-related.
If a
testing program is adopted, it must identify the categories
of employees who will be subject to testing, describe the
circumstances under which they will be tested, specify the
consequences of an adverse ("positive") test result and
the consequences of refusing to consent to or submit to
a test. Also, it is advisable to explain how the sample
will be analyzed and to warn employees of the lingering
effects of certain drugs in the system.
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3.
The establishment of an initial period of employment which
is described as one during which the performance of a new
employee is scrutinized and evaluated, at the end of which
time he becomes a "regular employee," is pointless and possibly
problematic legally.
It
is pointless because every employee's performance is evaluated
throughout his entire time of employment; the process does
not cease at the conclusion of some arbitrarily selected
period of time. And to state that after the completion of
the period the employee's classification changes to that
of a "regular" employee (or some similar designation) may
imply that he then acquires some protected status that he
would not otherwise possess.
On
the other hand, a "probationary" period which is described
as the minimum length of time that an employee must work
before attaining eligibility for various company benefits
is entirely appropriate.
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4.
Generally, in the absence of a written contract to employ
an individual for a specific period of time, he is an "employee-at-will"
and, with certain exceptions, can be discharged at the discretion
of the employer - at any time and for any reason, good or
bad.
One
exception is represented by the numerous statutes, particularly
the State and federal laws against employment discrimination,
which limit the right to discharge. Another exception may
arise from statements in employee handbooks or manuals and
other publications that expressly or impliedly limit the
employer's freedom to discharge. The New Jersey Supreme
Court so ruled in the case of Woolley v. Hoffmann-La Roche.
There
are some things which employers can do to prevent a handbook
or manual from impairing their freedom to discharge. One
is to attempt to exclude all statements and provisions which
expressly or implicitly limit the employer's freedom of
action. In addition, it is imperative that a so-called disclaimer
be included, which expresses the employer's right to discharge
at will. The court in the Woolley case set forth very specifically
the language of a disclaimer as part of a statement which
should be placed at the beginning of the handbook. Such
placement, and putting the disclaimer in capital letters,
will satisfy the court's requirement that a disclaimer be
very prominently displayed.
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5.
Depending on their hours of work and the nature of their
work and responsibilities, employees are usually classified
on the following basis:
Regular:
employees (other than temporary) who are assigned to regularly
work (40) hours or more per week.
Part-time:
employees (other than temporary) who are assigned to regularly
work fewer than (40) hours per week.
Temporary:
employees who are hired for a specific period of time;
or for a short, indeterminate period; or for a specific
project or task, usually of limited duration; or hired
as interim replacements.
Employees
in any of these classifications may be further classified
as either "exempt" or "non- exempt." "Exempt" employees
are those in certain executive, administrative, professional,
computer-related or outside sales positions, as defined
by law, who are exempt from the overtime pay provisions
of State and federal law. All other employees are "non-exempt."
The
status of a regular or part-time employee will not be affected
by a change in scheduled hours which are of a temporary
or intermittent nature.
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6.
In a situation such as this one, there are a number of things
an employer should consider. As long as the employee is
a bona fide exempt employee, there is no need to compensate
them at time and one half for hours worked over forty in
a week. The employer can opt to pay them at straight time
at the nonexempt rate for that job. However it is important
to be aware of the fact that under the New Jersey Wage Payment
Law, an exempt employee will lose their exempt status for
any week in which they spend more then 20% of their time
performing non-exempt work. This holds true even if they
are working two totally separate jobs for the same employer.
If the exempt status is lost, the employee must be paid
time and one half overtime for all hours worked over forty
in that week.
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7.
Some policy should be established with respect to employees
who are ineligible for FMLA leave because of insufficient
length of service.
There
are three choices for employers: (1) deny any leave of absence,
(2) allow a leave in all cases (possibly subject to some
restrictions or qualifications, or (3) grant or deny leave
according to individual circumstances.
The
first choice may result in the discharge of a valued employee,
and the second choice may require the retention of an undesirable
one. Inherent in the third choice is the possibility of
discriminatory or arbitrary treatment.
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8.
Engaging in some form of corrective or disciplinary action
(counseling, reprimanding, warning, suspending) before discharging
an employee is not only good employee relations practice
but often is a necessary step in establishing a legal foundation
for possible discharge.
However,
the particular kinds and number of disciplinary steps should
depend on circumstances; in some cases none is called for.
Therefore, employers should avoid making any commitments
on the subject; otherwise, if one is made but not observed,
a discharge will be considered to be wrongful regardless
of the underlying reason for it.
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9.
Employers lawfully may promulgate and enforce rules to prohibit
employees from engaging in the distribution of union literature
and in solicitation on behalf of a union, provided certain
limitations are observed with respect both to the application
and to the language of such rules.
The
limitations are that distribution of literature may be prohibited
at any time in work areas but only during working time in
non-work areas, whereas solicitation may be prohibited only
during working time.
Any
published rule on these subjects should not extend beyond
these limitations - e.g., it should not state that distribution
is prohibited "on company property" because such a proscription
could include both work areas and non-work areas. Reference
should not be made to "working hours", as distinguished
from "working time"; the former phrase would include non-working
time.
A rule
which is intended to prevent off-duty employees from engaging
in solicitation or distribution should state that they may
not enter the interior of the premises or work areas for
any purpose. They may not lawfully be denied
access for these purposes to exterior, nonwork areas of
the facility.
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