The New Jersey Division on Civil Rights (DCR) recently published final regulations that change the content of certain required notifications New Jersey employers must provide to employees. In recognition of today's remote workforce, the regulations also expand options for employers to comply with their posting and notice obligations under state law. On August 1, 2022, the DCR announced that these changes are effective immediately and are intended to better inform individuals of their rights under the New Jersey Law Against Discrimination (LAD) and the New Jersey Family Leave Act (FLA). Regulations under the LAD and FLA require covered employers to (1) "display" the official posters in "easily visible" places and (2) "provide" each employee with a copy of the official posters annually and upon an employee's first request.
Simultaneous with the publication of the regulations, the DCR posted on its website new versions of the required LAD and FLA posters, along with FAQs and other guidance about the regulations. Because the regulations took effect immediately, now is the time for New Jersey employers to update their posters to ensure compliance with the regulations.
New Versions of LAD and FLA Posters
All New Jersey employers—including those with just one employee working in New Jersey—are required to post the new LAD poster that describes workers' rights under the LAD. The LAD is the state statute that prohibits employment discrimination, harassment and retaliation on the basis of specific protected classes and protected activities.
Because the LAD extends beyond workplace rights and covers places of public accommodation, it is no surprise that the DCR also issued new LAD posters specifically tailored to the law's obligations for housing providers (e.g., landlords, property managers), places of public accommodation (e.g., restaurants, retailers, schools) and healthcare entities (e.g., mental health facilities, long-term and short-term care facilities, medical cannabis and other alternative treatment centers). All such posters, the details of which are outside the scope of this Alert, are available on the DCR's website.
Further, all New Jersey employers subject to the FLA, i.e., those with at least one employee in New Jersey and at least 30 employees located anywhere in the world, are required to post the new FLA poster that describes rights under the FLA. The FLA generally provides eligible employees with the right to take up to 12 weeks of leave in a 24-month period to care for (1) a newborn or a child placed for foster care or adoption, and/or (2) a family member with a serious health condition.
New Options to Satisfy Posting Requirements Virtually
In welcome news for employers, the regulations make clear that employers may opt to display the LAD and FLA posters virtually. The regulations permit employers to use an intranet or internet site where they customarily post notices to satisfy their "display" obligations, so long as the site is for use by and accessible to all employees.
Notably, an employer's obligation to "display" the LAD poster applies to employees and job applicants alike. Although the regulations do not explicitly state this, a reasonable interpretation is that the regulations permit employers to use an intranet or internet site to display the LAD poster to applicants who apply electronically, provided the site is for use by and accessible to all applicants. Employers who accept walk-in applications should provide a copy of the LAD poster to job applicants or display the poster in the area where applications are accepted.
The regulations also state that employers may use an internet or intranet site to meet their obligations to "provide" the official posters to employees annually, with one additional requirement: employers must notify employees that the posters are available on the site. Employers may also opt to provide the official posters to employees annually via email or through printed materials.
Employers choosing to display and provide the LAD and FLA posters in hard copy form should keep in mind that the posters must be printed on paper that is at least 8½-by-11 inches in size, with all text fully legible. It remains advisable for employers to continue to display hard copies of the posters in the workplace, including on any employee bulletin boards.
New Jersey employers may be subject to fines of up to $10,000 for failure to display the required posters. The new regulations do not impact the amount of such penalties.
What This Means for New Jersey Employers
New Jersey employers should act now to replace any prior versions of the LAD and FLA posters with the new versions and provide copies of the new posters to all New Jersey employees. Employers should ensure that up-to-date copies of the posters are included in all new-hire packets, employee handbooks, bulletin boards in employee break rooms and the employer's electronic portals for job applicants and employees.
It is also an opportune time for New Jersey employers to ensure their compliance with other posting and notice obligations under New Jersey law. By way of reminder, the New Jersey Department of Labor and Workforce Development publishes on its website a number of other notices employers in the state must post about workplace rights.
For More Information
If you have any questions about this Alert, please contact Kathleen O'Malley, Kathryn R. Brown, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.