Employment
Employers Can Expect More Legal Paperwork in 2008
By Catherine P. Wells

Catherine Wells is a partner with the West Orange law firm Wolff & Samson PC and specializes in employment law and commercial litigation. She expects to be pretty busy in 2008 as New Jersey businesses, already dealing with a maze of state and federal regulations governing employer-employee relations, are likely to face even more issues next year. Wells, who says New Jersey is a leader when it comes to progressive employee laws, spoke with NJBIZ reporter Martin C. Daks about some of the laws currently on the books, and speculated about ones that are likely to be enacted in 2008.


NJBIZ: Should small and medium-sized business owners in New Jersey be worried right now?

Wells: During 2007, we saw an expansion of protections afforded individuals under the New Jersey Law Against Discrimination (LAD),which prohibits action by employers [regardless of the number of workers] against individuals, in certain protected categories, that could be considered discriminatory. We also saw the state enact a civil union law [designed to give gay couples many of the legal and other protections offered to married heterosexual couples]. These developments mean businesses have even more laws to keep track of and to comply with.

NJBIZ: What do some of the changes in the LAD cover?

Wells: One significant change extends LAD to cover individuals who identify with or express themselves as a member of the opposite sex. Although there has been little or no interpretative guidance given—or developed through litigation-regarding gende identity or expression issues, the new amendment will require employers to evaluate the circumstances in their own work force. The statute is not necessarily intended to require the construction of new lavatory facilities, but if an individual notifies his or her employer that they identify with the opposite gender, the business must treat them no differently than any other person. This means the employer should work with the employee to arrive at a mutually acceptable solution.

NJBIZ: How does the Civil Union Act affect businesses?

Wells: The New Jersey Family Leave Act, which affects businesses that have 50 or more employees, was amended to conform to the state’s civil union law. So now an employee in a civil union may be able to take time off if his or her partner suffers from a serious medical condition, or the civil union couple adopts or gives birth to a child. The challenge for employers, with this issue and many others, is that the New Jersey Family Leave Act has some differences from the federal Family and Medical Leave Act. Although the NJFLA applies to employers of 50 or more employees, businesses of all sizes need to be aware of the enactment of these recent amendments inasmuch as employers must take steps to evaluate existing policies and procedures, and implement appropriate training for managers and line employees.

NJBIZ: How well are small businesses keeping up with the changes?

Wells: It’s likely, for example, that many [small business]employers may not know that this year the New Jersey Division on Civil Rights has amended its workplace posters regarding the passage of the civil union law and the amendment of LAD to include gender identity or expression as an additional protected category. These posters, which are required by statute to be posted in the workplace in an easily visible area, are available on the New Jersey Division on Civil Rights’ Web site.

NJBIZ: What additional legal changes are likely to occur in 2008?

Wells: There may be additional activity on a bill tango. Jon Corzine conditionally vetoed in 2007: a state corollary to the federal Worker Adjustment and Retraining Notification Act. The federal WARN Act generally requires employers to give at least 60 days notice in the event of a mass layoff or the closure of a facility. The version which was conditionally vetoed by Gov. Jon Corzine would have required 90 days advance notice, which the governor indicated would create difficulties for employers as it was inconsistent with the federal statute.

NJBIZ: Are there other possible changes in store in 2008?

Wells: The state Legislature is considering a bill that would establish a voluntary family leave insurance program. It would be funded by participating employees through a payroll deduction program that would, like the New Jersey temporary disability law, ensure that a worker would continue to receive a portion of his or her salary if the employee took time off under the Family Leave Act in the event a family member gives birth, adopts a child or an immediate family member suffers from a serious medical condition.

NJBIZ: When it comes to statutes, like the Civil Union Act and the Family Leave Act, is New Jersey on a par with other states or are we pretty far out on the curve?

Wells: We’re in the forefront with regard to these laws. Our statutes, which include protection for individuals on account of their gender identity or expression, and their civil union status, afford some of the broadest protection in the country.

Catherine Wells, Esq.
Wolff & Samson PC
One Boland Drive
West Orange, NJ 07052-3698
Direct Dial: (973) 530-2051
Direct Fax: (973) 530-2251
email: cwells@wolffsamson.com

Posted with permission from the December 10, 2007 issue of NJBIZ. www.njbiz.com. Copyright 2008, NJBIZ all rights reserved. For more information about reprints from NJBIZ, contact Wright’s Reprints at 877-652-5295



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