As a general rule in New Jersey, private employers may not conduct random drug testing of current employees except employees in “safety-sensitive” positions. Notwithstanding scant authority on what constitutes a “safety-sensitive” position, it is clear that to qualify, there must be a direct and immediate nexus between the employee’s job duties and a fairly significant safety risk. Absent such a connection, an employer cannot require its employees to submit to random drug testing, though pre-employment testing and testing in light of a particularized suspicion are permissible.
Continue Reading Safety-Sensitive Positions and Random Drug Testing by Private Employers in New Jersey

Countless people have been affected by the harsh economic times of the past several years. Many were unable to meet their financial obligations and stopped paying their bills which ultimately resulted in diminished credit ratings. In turn, job prospects also diminished. Pre-employment credit screenings are often standard practice and an unacceptable credit rating can be a bar to potential employment opportunities.
Continue Reading New Legislation Seeks to Curtail Pre-Employment Credit Checks

Generally, employers in New Jersey have an obligation to ensure that the workplace they are providing is harassment-free. However, like allegations of work-related discrimination, harassment is unlawful in New Jersey only if it is based on an employee being a member of a legally “protected class.”
Continue Reading Harassment and the Hostile Work Place Environment Claim that Follows

Employee manuals are a very useful tool for both employers and employees. The manuals are meant to provide guidance to employees about how the company runs, what the employer’s expectations are and how certain situations should be handled. They can quickly and effectively provide employees with answers to many commonly asked questions. This creates a certain level of clarity for both parties and aids in the avoidance of misunderstandings regarding the company’s policies.
Continue Reading Avoiding Ambiguities in Employee Manual Arbitration Provisions

To be an employee, or not to be an employee: that is the question for student-athletes of revenue producing sports at private universities. To college sports administrators and enthusiasts aghast at and appalled by the idea, the sky may be falling. To labor and employment lawyers, the question presents a unique opportunity to revisit issues of worker reclassification and evaluate the potential ramifications of what could be a complete paradigm shift in intercollegiate athletics.
Continue Reading NLRB Classification of “Student-Athletes” as “Employees”: What Does It Mean?

Social Media use is prevalent and will undoubtedly continue to remain a staple in our society for years to come. Improvements in technology have made access easier which has helped to create a culture where people are engaging in the use of social media anytime and from almost anywhere. But what does this mean for employers? Is an employer permitted to access employee social media accounts? Can the content of employee social media conversations be restricted? Can the use of social media be banned or limited in the workplace?
Continue Reading Setting Proper Policy: The Employer’s Survival Guide to Employee Social Media Use

New Jersey Senator Peter J. Barnes has introduced a bill that would protect workers in the state from adverse actions by their employer if they are unable to make it to work during a declared state of emergency. The legislation would prevent employers from requiring employees to use any leave, paid or unpaid, as well as any sick, vacation or personal days during a state of emergency. According to the bill, a state of emergency is a natural or man-made disaster or emergency in which a state of emergency is declared by the Governor or by a municipal emergency management coordinator.
Continue Reading Proposed NJ Bill Aimed at Shielding Workers during State of Emergency

The national movement towards “Banning the Box” has made its way to New Jersey and it could mean additional red tape for employers who want to perform criminal background checks on prospective employees. The New Jersey Assembly Labor Committee recently voted to send the “Opportunity to Compete Act” to the full assembly for approval. The Act essentially bars employers with fifteen or more employees from inquiring whether a prospective employee has been convicted of a crime. Employers who still wish to obtain information about an applicant’s criminal history can do so, but only after a conditional offer of employment is made and the applicant consents to the background check.
Continue Reading Banning the Box: The Potential Erosion of Employer Reliance on Criminal Background Checks

In recent news, the National Football League has proposed a new rule that would establish a yardage penalty for any on-field use of the “N-word.” The proposed rule has stirred up much debate: some legal, some cultural, some editorial, all polemical. It is not the purpose of this blog to step foot onto that gridiron of controversy, though a simple threshold question might be whether the use of the “N-word” on the playing field constitutes protected speech. Nor is it the purpose of this blog to evaluate whether Roger Goodell can impose such a rule in his “workplace.” Rather, the NFL’s proposal provides an opportunity to examine a private sector employer’s right to regulate speech in the workplace.
Continue Reading The First Amendment “Playing Field”: Regulating Speech in the Workplace