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The National Labor Relations Board (NLRB), the agency that enforces a federal labor law that protects the rights of employees and employers—is currently reviewing several hot topics that may have a significant impact on the workplace.
 
The board enforces the National Labor Relations Act (NLRA), a federal law that not only grants employees the right to form or join unions but also to “engage in protected, concerted activities to address or improve working conditions or refrain from engaging in these activities.”
 
All employees in the private sector are covered under the NLRA. However, the law does not cover supervisors (with limited exceptions).
 
Further, legal protection does not depend on the type of work an employee does. Professionals, for example, may be considered employees and be covered under the law if they are not part of management. Temporary workers may also be protected by the labor law.
 
This means that nonsupervisory employees have the right to act together to improve wages and other terms and conditions of employment and to communicate among themselves and with others to do so.
 
The NLRA applies to all private-sector workplaces (with few exceptions) even if they are not unionized.  Should HR professionals care?
 
“I don’t think that an HR manager at the typical employer fully understands the impact of the national labor law until its too late,” says John Sarno, president of the Employers Association of New Jersey.
 
The NLRA makes it an “unfair labor practice” (ULP) for an employer to “interfere with, restrain, or coerce employees” attempting to exercise or exercising those rights.
 
This means that employees cannot be disciplined or fired for exercising their legal rights.
 
A few examples of protected legal activities are:

Two or more employees addressing their employer about improving their pay.
Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other.
An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions.

A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.
 
While the NLRA has been around for decades, what has changed is the NLRB’s enforcement of these provisions. Recently, many nonunion employers have been charged with unfair labor practices as the result of more-aggressive enforcement of the NLRA in nonunion workplaces.

Through its “protected concerted activity initiative,”  the NLRB has applied the law to a variety of policies and procedures common in the workplace, which have previously been unchallenged.
 
For example, the NLRB has found that a social media policy prohibiting employees from electronically posting statements that “damage” or “defame” the company violates the NLRA, because the language of the policy is so broad that an employee would reasonably construe the policy as prohibiting protected activity (such as complaining about working conditions on social networking sites).
 
In February, 2023 the NLRB prohibited two common features of severance agreements. Employers can no longer require laid-off workers to keep their terms of severance secret, and they can’t compel severance recipients to refrain from publicly criticizing the company.
 
To respect workers rights, employers need to understand what they are and what kinds of actions can violate them, says Sarno.
 
“I think that its probably a good time for HR managers to begin brushing up on the law,” he adds.
 
For more information on the NLRA, contact EANJ here: https://www.www.eanj.org/contact-us

As 2022 came to a close, two new pieces of federal legislation were enacted providing additional protections to pregnant workers and new moms – the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act.

The PWFA, which has been introduced in every Congress since 2012, garnered bipartisan approval, including from top employer lobbying groups such as the US Chamber of Commerce and the Society for Human Resource Management.

Under the PWFA, employers will be required to provide reasonable accommodations to employees and applicants with known temporary limitations on their ability to perform the essential functions of their jobs based on a physical or mental condition related to pregnancy, childbirth, and related medical conditions, unless doing so would impose an undue hardship.

“The new law will have a familiar feel to employers as it is modeled after the Americans with Disabilities Act,” said Amy Vazquez, Vice President of Employers Association of New Jersey.  “Employers will engage in an interactive process in order to determine if a reasonable accommodation can be made for a pregnant worker.”

The PWFA protects employees from retaliation, coercion, intimidation, threats, or interference if they request or receive a reasonable accommodation.  It also provides that an employer cannot require an employee to take a paid or unpaid leave of absence if another reasonable accommodation can be provided.

Up until now, federal law only required companies provide pregnant workers accommodations if they also gave them to workers with injuries or medical conditions.  

“The standard was equal treatment, not necessarily special treatment,” Vazquez noted of the Pregnancy Discrimination Act (PDA) which amended Title VII of the Civil Rights Act of 1964, and prohibits job discrimination because of sex, pregnancy or pregnancy-related medical conditions.  

In 2014, New Jersey enacted its own Pregnant Workers Fairness Act (NJPWFA), which amended the NJ Law Against Discrimination to include pregnancy, including medical conditions related to pregnancy, childbirth, and recovery, as well as breastfeeding, as protected classifications under the law.  Workplace accommodations are required under the NJPWFA for those affected by pregnancy.

“Since NJ employers have been navigating the state law for close to a decade, for most, the new federal law shouldn’t be that big of a deal,” said Vazquez.

The PUMP Act expands existing employer obligations under the Fair Labor Standards Act (FLSA) to provide an employee with reasonable break time to express breast milk for the employee’s nursing child after the child’s birth.  The obligation to provide a place to express milk shielded from view and intrusion from coworkers and the public, other than a bathroom, continues.

The PUMP Act expands protections by providing additional employees, including those who are salaried, the right to receive break time and a private place to pump at work.  Additionally, workers will now have protections up to two years following their child’s birth, compared with the previous requirement of one year.

Employers should ensure that non-exempt nursing employees are paid if they express breast milk during an otherwise paid break period or if they are not completely relieved of duty for the entire break period. Exempt employees should be paid their full weekly salary as required by law, regardless of whether they take breaks to express breast milk.

The PUMP Act went into effect immediately and applies to employers covered by the Fair Labor Standards Act.  The PWFA applies to employers with at least 15 employees and becomes effective on June 27, 2023.  

Join Amy Vazquez for a one-hour webinar on Thursday, February 23rd at 12pm. Details and Registration.

Since pandemic, labor organizing has grown to include new workers in New Jersey.

And NJ Spotlight reports that workers everywhere are demanding their employers treat them more humanely. In the case of nurses in New Jersey’s hospitals, workers said they felt like executives were putting profits over patient care and worker health.

Patricia Campos-Medina, the executive director of the Worker Institute at ILR-Cornell University, explained that’s due to a shift “in this moment, in which workers realize their own power” and are asking to be treated humanely.

“Look at the railroad [workers]. The real strike is not just about wages, it’s about their ability to take a day off. And the ability to have paid sick leave … and the ability to know what your schedule is, so that … you can have time with your family. For basic things,” said Campos-Medina.  

Workers across industries became fed up with working while sick, not being able to know if they would have a job the following day or not having basic benefits. And they have become increasingly frustrated with corporations making record profits while keeping the money to themselves.

“From Starbucks employees, to railroad workers, to the staff at The New York Times, workers want to be treated more fairly,” says John Sarno, president of the Employers Association of New Jersey.

But Sarno does not believe that employer-members of the Association will see much labor agitation in 2023 because most of them cared for workers during the pandemic.

“We took thousands of calls through the height of the pandemic and did dozens of webinars with thousands attending and most Association members followed the health and safety rules meticulously and did not leave their employees behind,” he says.  

They did their level best to keep the health and safety of the workforce top of mind,’ he adds.

Still Sarno believes that employers should make workplace training a priority for 2023.

“What does it mean when an employer says that employees are its most important assets or that employees drive business growth?” asks Sarno.

Gallup Management Journal has annually surveyed a nationally representative sample of employed adults and has continually found that less than one in three employees are actively engaged in their work primarily because most employees are not encouraged to contribute their intelligence and creativity on the job. Compounding the problem, according to Emerge Leadership Group, eight out of ten supervisors underperform as they step into a new leadership role.

“The hard work of supervision and management at all levels is to nurture an open, safe environment where information is freely shared and expectations for performance are transparent . . . Whether in a union or nonunion workplace, retention of good supervisors is critical to the success of any organization.  But like all valuable assets, supervisors must be developed so that they have the proper skills to lead others,” observes Sarno.

The Association is a nonprofit member association dedicated to improving employer-employee relations and facilitating the exchange of information among employers. It does not not engage in lobbying activity, nor does it directly or indirectly persuade employees concerning their organizing or bargaining rights

Click here for Supervisory Training.  

Effective January 1, 2023, Amy Vazquez will assume the role of Vice President of the Employers Association of New Jersey (EANJ).  

Amy began her career as a Research Assistant with EANJ in 1999, shortly after graduating from Montclair State University.  

“Fresh out of college with a degree in history, the world of employment law compliance was entirely new to me,” Vazquez recalls.  “Working with the members each day and researching their questions, along with the guidance of the EANJ professional staff, provided an optimal environment for me to learn and grow.”

For the past 23 years, Vazquez has kept the EANJ membership informed and up-to-date on current and emerging employment law, including legislative and regulatory compliance mandates, developing case law and agency directives.

Amy regularly teaches courses and advises employers on a wide range of workplace compliance topics, including administering leaves of absence, understanding NJ’s mandated benefits laws, worker classification and wage hour compliance.  She also provides day-to-day guidance on Human Resource best practices and manages EANJ’s legal content for publication.

In her new role as Vice President, Vazquez will work with EANJ’s president, John Sarno, board members and the Association membership in determining strategic priorities for the future.

“EANJ is at a pivotal moment in its 106-year history which provides us with the opportunity to look at who we are now, define our vision for the future and figure out how we will get there,” said Vazquez. “And the members will play an essential role in helping to chart our course forward.”

Amy will continue to work with members on a daily basis and teach classes.  

“Amy is an invaluable partner,” says Sarno.  “Her knowledge base and business acumen has been finely honed throughout her service to the organization. We are all looking forward to her contributions to our strategic vision.”

Amy earned her Master’s Degree in Professional Studies with a focus on HR and Employment Law Compliance at Penn State University.  Additionally, she holds a Certificate in Human Resources Studies from Cornell University and is expected to complete a Certificate Course in Nonprofit Management Essentials through the Kellogg School of Management at Northwestern University in December.

Listen to an interview with Amy here.

Employers continue to contend with an increasingly challenging talent management environment over the past two years. Improving workplace culture, attracting and retaining talent and providing professional development opportunities for employees at all levels of the organization have become critical objectives.

Well designed and managed mentorship programs can have a dramatic impact on workplace culture, employee engagement and retention. A focused mentorship program can break through organizational barriers to create relationships and interactions that build individual and organizational value.

“Starting a mentorship program isn’t rocket science, however there’s certainly a good deal of care that goes into it,” says John Sarno, president of the Employers Association of New Jersey.  

The Association has been perfecting the art of mentorship for over twenty years.

Mentoring is a reciprocal and collaborative at-will relationship that most often occurs between a senior and junior employee for the purpose of the mentee’s growth, learning, and career development.

“The mentor requires an orientation, a mindset to be an effective mentor.  Its not like management.  The mentor does not direct.  She listens, facilitates and offers recommendations for the mentee’s growth,” says Sarno.

A good mentor can help the mentee become more effective at work, learn new skills, develop greater confidence, and make better decisions for their overall career growth.

Mentors report many benefits as well, including satisfaction from seeing others develop; expanded generational and cultural perspectives; strengthening of technical, leadership, and interpersonal skills; and continuing to experience new ideas and insights.

“Mentors require their own structure and should have some training before going into it.  Roles get confused sometimes and men who mentor women need to understand the ground rules, says Sarno.

O.C. Tanner, a national consulting firm that helps organizations improve work culture, has listed organizational mentorship as one of the top five talent management trends for 2023.

However, many mentoring programs typically rely on single mentor-mentee matches, pairings that by nature are quite formal and hierarchical, when all the evidence shows that many employees, especially women, prefer mentorships with a more reciprocal and mutual character.

“Organizations have to build a mentoring culture to mentorship to be successful,” says Sarno.  The Association provides this support and training but Sarno doesn’t accept every request.  

“Some employers are more prepared than others.  Mentorship should not be an onerous, formal, add-on obligation. If they are looking for a quick fix, I’ll often suggest alternatives,” he says.

Creating a mentoring culture and enlisting a robust cadre of mentors throughout the organization is the objective of organizational mentorship.  

Sarno says that the Association is ready to fulfill more requests as the receding of the COVID pandemic has left many Association members with unmet talent management needs.

“In a solid mentoring culture, there’s an ongoing emphasis on mentoring excellence, and the bar for competency and skill is high. If Association employer-members are ready, so are we,” he says.

The New Jersey Department of Labor and Workforce Development may be a big battle ship that turns ever so slowly, but once it takes aim it hardly misses its mark.

In July, 2019, a Department task force issued a report recommending strong medicine for employers that misclassify workers.  Misclassification is the practice of improperly classifying workers as independent contractors, rather than employees. The practice cheats workers out of overtime pay and unemployment insurance, as well as eliminates many worker protections.

Since then, legislation has been enacted to stiffen the penalties against employers for misclassification mistakes and the Department has taken aim as some big employers to collect penalties.   In September, Uber, the ride-share giant, reimbursed the state’s Unemployment Trust Fund for a combined $78 million in past-due contributions, plus penalties and interest of $22 million covering 297,866 drivers who were misclassified as independent contractors.

While Uber insists that their drivers are independent contractors who work when and where they want, New Jersey applies the “ABC test” to determine employee status.

The ABC test has long been used by the Department and recent decisions by both federal and state courts have highlighted the importance for employers to properly classify workers under the ABC test.

Under the ABC test, a worker is considered an employee unless all the following circumstances apply:

A.    The individual has been and will continue to be free from control or direction over the performance of work performed, both under contract of service and in fact; and

B.    The work is either outside the usual course of the business for which such service is performed, or the work is performed outside of all the places of business of the enterprise for which such service is performed; and

C.    The individual is customarily engaged in an independently established trade, occupation, profession or business.

“Employers should understand that once an individual provides remunerated services, this constitutes employment, unless the services are exempt or the statutory requirements for the ABC test have been met,” says John Sarno, president of the Employers Association of New Jersey.

In New Jersey, an employee-employer relationship can be found even though that relationship may not satisfy the employer’s business needs, he says

The determination of employee v. independent contractor status is particularly difficult in certain situations. It is important to know the law and regulations; the consequences for not knowing can be significant.

Join Amy Vazquez on October 26th for Understanding and Applying NJ’s ABC Test.

Employee benefits in the United States constitute a large, complex and ever-changing set of programs. They are either mandated by federal or state law, such as unemployment insurance and workers’ compensation or are voluntarily provided by the employer to help attract, retain and motivate employees and to contribute to the organization’s strategic objectives.

Several New Jersey laws make monetary benefits available to provide some financial security for employees unable to work because of involuntary job loss, disability or certain family-related issues.

For employers the rights of employees to take job-protected leave for various reasons can cause scheduling nightmares, administrative headaches, and serious problems if those rights are violated, according to John Sarno, president of Employers Association of New Jersey (EANJ).

While it’s possible to learn workplace laws through on-the-job experience, most employers expect the Human Resource professionals they hire will already have a firm understanding of the laws governing the profession, he says.   “As such, if a staff person’s goal is to work in human resources management, then it’s important to develop the proper understanding to perform the job.”

No area in the employment relationship is as complex and subject to change as employee benefits. Every time the New Jersey legislature passes a new law or amends an old one, it adds to the demands on an employer’s time and attention. This situation is unlikely to change.

For example, in 2020 New Jersey legislation expanded the scope of the New Jersey Earned Sick Leave Law, the New Jersey Family Leave Act, the New Jersey Temporary Disability Law to cover absences related to epidemics such as the coronavirus COVID-19 pandemic. The law was enacted to create immediate enhanced eligibility for employee leaves in New Jersey.
Also, in 2020, New Jersey amended its Temporary Disability Benefits Law to provide job-protected leave during “a period of disability” resulting from the donation of any organ or bone marrow.

And, according to Sarno, in an eye-opening opinion letter issued by the U.S. Department of Labor parents attending certain school meetings for the benefit of their children are entitled to leave for their absences. The agency concluded that the need to attend school meetings to discuss individualized education programs for children with serious health conditions triggers intermittent Federal leave law protection.

Starting in October, EANJ will be offering its acclaimed HR Administration Program.  Led by Amy M. Vazquez and Robin M. Ross, experts in HR regulatory and legislative requirements including compliance with Federal Family Medical Leave Act, NJ Family Leave Act, State Plan Disability, Unemployment Compensation, OSHA, federal and State Wage/Hour, among others.

Click here for more information