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 2016, the EANJ professionally-staffed Helpline fielded over 5,000 telephone calls and emails, on dozens of different topics, including:
- 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?
- Under what circumstances can an employer administer a drug test?
- Should an employer have a probationary period for new employees?
- How can I avoid the Employee Handbook from being made an enforceable contract?
- What are the most common employee classifications?
- How do we pay employees when we close the facility for inclement weather?
- Should a company have a leave policy for employees that are not eligible for a leave under the Family Medical Leave Act?
- How should a company approach disciplinary matters?
- 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. 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?
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.
2. Under what circumstances can an employer administer a drug test?
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.
3. Should an employer have a probationary period for new employees?
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.
4. How can I avoid the Employee Handbook from being made an enforceable contract?
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.
5. What are the most common employee classifications?
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.
6. How do we pay employees when we close the facility for inclement weather?
Nonexempt employee must only be paid for hours worked. You may permit these employees to substitute paid time off for the hours they would have worked but for the closure. If they have no paid time off available, there is no need to pay them for time not worked.
Exempt employees must be paid their regular fixed salary. Deductions from salary may not be made to accommodate the operating requirements of the business. Current DOL guidance indicates that it is permissible to apply a paid time off day for the time missed. If the employee has no paid time off available, they must still receive their fixed salary.
7. Should a company have a leave policy for employees that are not eligible for a leave under the Family Medical Leave Act?
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.
8. How should a company approach disciplinary matters?
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.
9. How can an employer legally prohibit the distribution of union literature?
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, non-work areas of the facility.