The New Jersey Supreme Court has weighed in not once but twice this month on important employment law issues. So, if you operate a business in the Garden State, I'll bring you up to speed on that, plus some new pending legislation.
(For the rest of you, have a nice weekend, and maybe add some pork roll or Taylor Ham to your breakfast sandwich.)
Nondisparagement provisions in settlement agreements.
On May 7, the Supreme Court explored whether an employer can enforce a nondisparagement provision in a settlement agreement that precludes a plaintiff from discussing their underlying claims under New Jersey's Law Against Discrimination.
It can't.
The LAD provides in part that "[a] provision in any employment contract or settlement agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment shall be deemed against public policy and unenforceable against a current or former employee." The Supreme Court determined that this includes "nondisparagement" provisions that would conceal details about discrimination claims.
So, NJ employers should scrap nondisparagement provisions in settlement and severance agreements altogether, or narrowly tailor them to clarify that they do not impede/impact rights arising under the NJLAD.
Wage and hour amendments are not retroactive.
On Wednesday, the New Jersey Supreme Court decided whether the 2019 amendments to New Jersey's Wage and Hour Law and the Wage Payment Law apply to conduct before the effective date but was pursued in Court after the amendments became effective.
They don't.
The Court considered whether the NJ Legislature intended to implement the amendments retroactively. But, the Legislature expressly stated that the new provisions "shall take effect immediately," which the Supreme Court recognized as "a phrase that New Jersey Courts have repeatedly held to signal prospective application."
Had the Court decided otherwise, plaintiffs with pre-amendment claims could pursue retaliation claims and enhanced liquidated damages penalties with a six-year statute of limitations.
A new "heat stress" standard.
Earlier this month, the NJ Legislature advanced a measure that establishes occupational heat stress standards and an "Occupational Heat-Related Illness and Injury Prevention Program."
Under the proposal, the State would establish rules for protecting employees from excessive heat by requiring employers, among other things, to (1) monitor and limit employee exposure to heat; (2) provide them with cool water and paid rest breaks in a cool area; and (3) provide an emergency response for any employee who has suffered injury as a result of being exposed to excessive heat; (4) postpone nonessential tasks when it's sweltering outside; (5) hire more workers to decrease heat exposure per worker; and (6) invest in PPE, administrative and engineering controls. There are penalties for noncompliance, and employees can sue for retaliation.
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