Legal Blogs and Updates

ASSESS YOUR BACKGROUND CHECK PROCESSES

Employers must ensure compliance with New Jersey and federal laws when conducting background checks. Supervisors and hiring managers should be familiar with the important steps in the process: knowing when a background check is permissible, ensuring the applicant receives a disclosure and an authorization statement, engaging in an individualized assessment of any problematic information learned, and providing all required notices before taking any adverse action. Employers must also comply with the law as to salary inquiries and salary transparency requirements

PREVENT DISCRIMINATION IN THE FORM I-9 AND E-VERIFY PROCESSES

Employers are prohibited from discriminating against individuals based on their citizenship or immigration status, or their national origin, during the hiring, firing, recruiting, and reverification of Form I-9 or E-Verify processes. Employers should develop, implement, and enforce nondiscrimination policies and conduct training to ensure that all employees understand Form I-9, as well as recent changes to the form and the rules, including those related to alternative document examination procedures under some circumstances. Employers should consider retaining legal counsel to review the Forms I-9 on file to ensure the company’s compliance and avoid costly fines.

CONSIDER THE PROS AND CONS OF ARTIFICIAL INTELLIGENCE IN THE WORKPLACE

Artificial Intelligence (AI) is becoming more of a norm in the workplace. Applicants are using AI to complete job applications, employers are using it to screen potential employees, and employees are using it to perform their tasks. It’s important for employers to start considering the pros and cons of whether using AI makes sense for their business. For employers who are using AI and are thinking about using AI, develop a written policy in alignment with the Equal Employment Opportunity Commission guidance and any controlling state laws.

UNDERSTAND AND COMPLY WITH THE TEMPORARY WORKERS BILL OF RIGHTS

Employers that obtain temporary workers from staffing agencies need to evaluate if the New Jersey Temporary Workers Bill of Rights is applicable to the temporary workers utilized. If applicable, the law requires, in part, that covered workers must be paid at least the average rate of pay and the average cost of benefits as regular employees of the covered employer, or the cash equivalent thereof when “performing the same or substantially similar work . . . which requires equal skill, effort, and responsibility... under similar working conditions” as the employers’ regular workers.

IDENTIFY H-1B CAP CANDIDATES TO SUPPLEMENT YOUR WORKFORCE WITH QUALIFIED PROFESSIONAL EMPLOYEES

The H-1B program applies to employers seeking to hire nonimmigrant aliens as workers in specialty occupations. A specialty occupation is one that requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent in a field related to the occupation. The intent of the H-1Bprovisions is to aid employers who cannot otherwise obtain needed business skills from the U.S. workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the United States. The H-1B cap season (for 2024) requires registration in March 2024. If selected in the first round of the random lottery that occurs after the registration period, H-1B petitions can be filed between April 1, 2024, and June 30, 2024. If USCIS does not receive enough petitions during the filing period to meet the annual statutory cap, it may conduct subsequent rounds of the lottery. If the H-1B, the effective start date will be October 1, 2024. It is important to identify current employees in F-1 OPT status, TN status, L-1B status, or pending hires graduating from U.S. institutions in F-1 or J-1 status who are eligible. If you miss the March registration deadline, you are not eligible to file a registration again (due to caps and quotas) until March 2025.

KNOW HOW TO DRUG TEST FOR CANNABIS

Implement a drug and alcohol-free workplace policy and testing procedures to address cannabis (recreational and medical intoxication) in the workplace.

PROTECT EMPLOYEES FROM BULLYING IN THE WORKPLACE

While there is no anti-bullying law for employers in New Jersey, there is potential for actionable claims under other employment statutes, particularly where bullying is driven by implicit biases. Employers must understand bias and its impact on bullying within the workplace. This understanding is important for DEI across an organization and to avoid ambiguity and potential liability for employers. To protect its employees and the employer, employers should:(1) employ an anti-bullying policy defining bullying (include examples and scenarios); (2) enforce the policy evenly; and (3) require interactive training to educate and inform employees on acceptable and unacceptable workplace behaviors and how implicit biases drive the latter.

TRAIN MANAGERS TO UNDERSTAND AND COMPLY WITH THE FEDERAL PREGNANT WORKERS FAIRNESS ACT 

While managers may be aware of the New Jersey Pregnant Workers Fairness Act, they must be trained to understand the federal Pregnant Workers Fairness Act, which became effective in 2023. The federal law is administered and enforced by the EEOC, and requires covered employers to provide reasonable accommodations, well beyond that required by state law or the Americans with Disabilities Act, to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions.

REVIST YOUR TERMINATION CHECKLISTS

Employers are well-served to review critical checklists both before and after making termination decisions. Prior to taking an adverse employment action, employers should ensure compliance with anti-discrimination and anti-retaliation statutes, wage and hour requirements, and immigration laws. Once a decision to terminate is made, best practices should be followed in communicating with the employee, issuing the final paycheck, and securing the return of company property. Employers must also comply with the NJ Warn Act amendments, and the updated BC-10 form required by the NJDOL when an employee resigns or is involuntarily terminated (including establishing an employee Access account).

UPDATE YOUR EMPLOYEE HANDBOOK AND CONDUCT WORKPLACE HARASSMENT PREVENTION TRAINING

An employee handbook should be reviewed from a legal and administrative perspective on an annual basis in order to keep it up-to-date with new and evolving federal and state laws. In addition, employers are well-advised to conduct workplace harassment prevention training in an interactive and engaging manner while utilizing practical examples of workplace conduct and reinforcing the company’s anti-harassment policy and complaint procedure.