Workers in New Jersey generally fall into two categories: employees or independent contractors.  There are severe consequences for improperly characterizing employees as independent contractors, including but not limited to fines and stop work orders. N.J.S.A. 34:1A-1.11, 1.12, 1.18 and N.J.S.A. 17:33A-4. 

Employers may also engage staffing agencies to utilize temporary workers. Temporary workers in certain classification placements are afforded certain rights, including but not limited to wage parity with employers’ employees, protection from last-minute schedule changes, limitations on wage deductions, and payment standards under the Temporary Workers’ Bill of Rights ("TWBOR"), which became effective in 2023. N.J.S.A. 34:8D-1 et seq. Temporary staffing agencies and employers that hire through such agencies bear the cost and burden of compliance.

For further information, please see the “Guide to Doing Business in New Jersey.”

To the extent there is an employment contract, the term of employment is governed by the particular terms of the contract and may include fixed terms or automatic renewal periods in the absence of a notice to terminate the contract. In the absence of an express or implied agreement, employment is at-will and employers have the right to discharge an employee at any time for any or no reason, so long as it is not for an illegal reason, such as unlawful discrimination or retaliation. Unlawful reasons for terminating employment are discussed in response to "Are employees afforded any anti-discrimination protection?" Handbook provisions, written offers of employment or other communications and/or representations to employees, that are not accompanied by express at-will disclaimers, may be sufficient to constitute an enforceable implied contract for continued employment under New Jersey law.

New Jersey is an employment-at-will state. New Jersey employers may choose to enter into employment contracts providing for some level of job security, most of which are governed by contract principles. In general, under New Jersey law, a legally enforceable contract requires 1) a meeting of the minds; 2) offer and acceptance; 3) valid consideration, and 4) reasonably certain contract terms. Big M, Inc. v. Dryden Advisory Group, No. 08–3567, 2009 WL 1905106 at *18 (D.N.J. June 30, 2009). Handbook provisions, written offers of employment or other communications and/or representations to employees, that are not accompanied by express at-will disclaimers, may be sufficient to constitute an enforceable implied contract for continued employment under New Jersey law. In March 2019, the New Jersey Law Against Discrimination ("NJLAD") was amended to ban provisions in employment contracts that waive any substantive or procedural right or remedy (which has been construed to include, but not be limited to, arbitration provisions and jury trial waivers) relating to a claim of discrimination, retaliation or harassment. N.J.S.A. 10:5-12.7. In March 2021, the United States District Court for the District of New Jersey held that this law is preempted by federal law, namely the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1-16. New Jersey Civil Justice Institute, et al. v. Grewal, No. CV 19-17518, 2021 WL 1138144 (D.N.J. Mar. 25, 2021). Therefore, N.J.S.A. 10:5-12.7 may not be enforced “with respect to arbitration agreements between employers and employees that are governed by the FAA.” Id. To the extent an employment contract contains a restrictive covenant (e.g. non-compete or non-solicitation provisions), New Jersey follows the general rule that restrictive covenants are enforceable to the extent that they are “reasonable under all the circumstances of the case.” Karlin v. Weinberg, 77 N.J. 408, 417 (1978); Solari Indus., Inc. v. Malady, 55 N.J. 571, 576 (1970). In 2024, Assembly Bill 3715 is pending before the New Jersey Legislature, and if passed, would impose strict procedural requirements on New Jersey employers seeking to restrict their employees' post-employment activities, limit the permissible scope and enforceability of certain restrictive covenants, and increase the associated costs of enforcing restrictive covenants against former employees. For further information relating to restrictive covenants under New Jersey law, please see the response to "Are restrictive covenants recognized and, if so, what are reasonable restrictions as to geography, duration and scope of activity?"

Part-time employees generally are afforded the same rights as full-time employees. Part-time employees may not satisfy eligibility requirements for certain benefits depending on the number of hours they work. Please see responses to "Are there statutory rights to vacation, medical leave and parental leave? Have there been any changes to leave benefits in the past 12 months? Is there any proposed legislation that employers should be aware of that will impact leave benefits?" and "Are certain benefits mandated by your jurisdiction?"

There is no prohibition on the assignment of employment contracts. Generally, under New Jersey Law, whether an employment contract is assignable is governed by the terms of the contract.

In general, employees do not have any right to object when the company they work for is transferred. In certain circumstances, however, severance pay is mandated by the Millville Dallas Airmotive Plant Job Loss Notification Act ("NJ WARN Act"), N.J.S.A. 34:21-1 et seq. (a state counterpart to the federal WARN act). Under N.J.S.A. 34:21-2, employers must pay severance “equal to one week of pay for each full year of employment” to employees terminated because of a “transfer of operations . . . [that] result[ed], during any continuous period of not more than 30 days, in the termination of employment of 50 or more employees.” The NJ WARN Act defines the phrase “transfer of operations” as “the permanent or temporary transfer of a single establishment, or one or more facilities or operating units within a single establishment, to another location, inside or outside of this State.” N.J.S.A. 34:21-1. Employers may seek approval from the Commissioner of the Department of Labor or a competent court to waive their severance-payment obligations.

The Service Worker Retention Law, N.J.S.A. 34:21-1 et seq., protects certain service workers in covered locations from the sudden and unexpected loss of employment due to changes in ownership. The law requires that upon a change in the contract service provider, the successor employer is required to continue to employ the service employees at that location for 60 days following the change in ownership. “Service employee” is defined as “an individual employed or assigned to a covered location on a full or part-time basis for at least 60 days and who is not a managerial or professional employee or regularly scheduled to work less than 16 hours per week” in certain jobs, including those involving the care or maintenance of a building or property; food preparation services at schools; passenger-related security service, cargo-related and ramp services, in-terminal and passenger handling at airports; and cleaning services. Covered locations range from schools and hospitals to nursing care facilities, senior care centers and airports.

Employees may also have rights under an applicable collective bargaining agreement. Please see the response to "Do you have statutory rights for employees on change of control of an employer? If so, please give the statute" for additional information. For further information, please see the “Guide to Doing Business in New Jersey.”

The Millville Dallas Airmotive Plant Job Loss Notification Act ("NJ WARN Act"), N.J.S.A. 34:21-1 et seq. (a state counterpart to the federal WARN Act), currently requires employers with 100 or more employees to provide 90 days’ notice prior to any “mass layoff,” “transfer of operations” or “termination of operations” as defined by the statute. Notice, with various types of information, must be given to each affected employee, the New Jersey Commissioner of Labor and Workforce Development, the chief elected official of the municipality where the establishment is located, and any unions representing employees at the establishment. Such employers must also pay each employee a week of wages for each year the employee worked for the employer, and an additional four weeks of wages if the employer misses the 90-day period, even by a single day. The amount of severance pay is greater than the employee’s regular rate over the last three years or the final regular rate. Aggrieved employees may file suit directly in the Superior Court, either individually or on behalf of other affected employees.

The Service Worker Retention Law, N.J.S.A. 34:21-1 et seq., protects certain service workers in covered locations from the sudden and unexpected loss of employment due to changes in ownership. The law requires that upon a change in the contract service provider, the successor employer is required to continue to employ the service employees at that location for 60 days following the change in ownership. “Service employee” is defined as “an individual employed or assigned to a covered location on a full or part-time basis for at least 60 days and who is not a managerial or professional employee or regularly scheduled to work less than 16 hours per week” in certain jobs, including those involving the care or maintenance of a building or property; food preparation services at schools; passenger-related security service, cargo-related and ramp services, in-terminal and passenger handling at airports; and cleaning services. Covered locations range from schools and hospitals to nursing care facilities, senior care centers and airports. For further information, please see the “Guide to Doing Business in New Jersey.”

If there is no binding express or implied employment contract or collective bargaining agreement, employers have the right to change the terms and conditions of employment at any time for any reason, provided that it is not for an illegal reason, such as unlawful discrimination or retaliation. Generally, notice must be provided before a change (e.g. wage rates, accrual of paid time off, etc.). Depending on the type and magnitude of the change, employees may have a legitimate claim of constructive discharge and be entitled to unemployment benefits.

New Jersey is an “employment-at-will” state. In the absence of an express or implied agreement, employers have the right to discharge an employee at any time for any or no reason, so long as it is not for an illegal reason, such as unlawful discrimination or retaliation. Employment at-will also protects the employee's right to resign at any time, without the need to explain or defend that decision.

If a dispute arises regarding the validity of the termination of employment, an employee may pursue a claim in either an administrative forum or court. Depending on the forum, remedies for wrongful termination (illegal discrimination, harassment, or retaliation) include reinstatement, back pay, front pay, compensatory damages, emotional distress, punitive damages, attorneys’ fees, and interest. Under a breach of employment contract claim, remedies for dismissal without cause would be set forth in the contract.

Several statutes in New Jersey provide protections for whistleblowers in the context of private employers. The New Jersey Conscientious Employee Protection Act (“CEPA”) prohibits an employer from taking adverse employment action against an employee because the employee: (1) disclosed, or threatened to disclose, activities by the employer which the employee reasonably believes to be illegal or against public policy; (2) provided information or testified in connection with an inquiry into the employer’s violation of law; or (3) objects, or refuses to participate in, any activities the employee reasonably believes violates the law or public policy. N.J.S.A. 34:19-1 to 34:19-14. The New Jersey Law Against Discrimination (“NJLAD”) prohibits retaliation against individuals who: (1) have opposed practices or acts prohibited by the NJLAD; (2) have filed or intend to file a complaint, testify or assist in any proceedings under the Act; or (3) ask current or former co-workers about their job titles, occupational categories, pay and benefits and status as members of protected categories. N.J.S.A. 10:5-1 to 10:5-49. There are also prohibitions on retaliation under various other New Jersey laws, including Wage & Hour Laws, Wage Payment Laws, Temporary Disability Benefits or Family Temporary Disability Leave Benefits, Law Against Discrimination, Family Leave Act, Earned Sick Leave Law, and Wage Discrimination Laws. N.J.S.A. 34:11-56a24; N.J.S.A. 34:11-4.10; N.J.S.A. 43:21-55.2; N.J.S.A. 10:5-12(r); N.J.S.A. 34:11B-9; N.J.S.A. 34:11D-4; N.J.S.A. 34:11-56.6. For additional information regarding prohibitions against retaliating against employees for engaging in protected activity and/or asserting their rights or the rights of others under various laws, please see the response to "Are employees afforded any anti-discrimination protection?” Please also see the “Guide to Doing Business in New Jersey.”

New Jersey employees can assert a right to privacy under common law and public policy. Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 99 (1992). The extent of the public policy of privacy in the workplace is not clearly defined but is determined instead by balancing the employee’s individual right to privacy with the competing public interest. This case was in the context of drug testing in particular. The New Jersey Identity Theft Prevention Act applies to all employers doing business in New Jersey and requires employers to: take steps to prevent the disclosure of Social Security numbers of employees and other personal data; destroy documents and electronic records containing personal information and notify persons affected by any unauthorized access to personal information; and provide certain notification in the event of a security breach. Individuals have a private right of action to address willful, knowing or reckless violations. N.J.S.A. 56:11-44 to 56:11-53 and N.J.S.A. 56:8-161 to 56:8-166. The New Jersey Genetic Privacy Act requires employers to obtain informed consent before obtaining or retaining genetic information from any individual except when required by the state, county, or federal law enforcement agencies during a criminal investigation or prosecution; to determine paternity; to determine a deceased person's identity; for anonymous research where the subject's identity is not released; for newborn screening requirements as required by state and federal law; or as authorized by federal law for identification purposes. In addition, a person may not disclose or be compelled to disclose, by a subpoena or any other means: the identity of the individual receiving genetic tests; or genetic information about the individual that permits identification of the individual, except in certain circumstances. Anyone disclosing an individual's genetic information is liable to that individual for all actual damages proximately caused by the disclosure, including economic damages; bodily damages; and emotional harm. N.J.S.A. 10:5-43 to 10:5-49. The New Jersey Social Media Privacy Law prohibits employers from requiring or requesting current or prospective employees to provide their username or password or any other means for accessing their personal social media accounts or to require any individual to waive their right under this statute as a condition of applying for or receiving an employment offer. This law also prohibits retaliation against individuals who: refuse to disclose a user name or password to their social media account; report an alleged violation to the Commissioner of Labor and Workforce Development; testify or assist in any investigation concerning this law, or otherwise oppose a violation of the law. This law does not prohibit employers from accessing or using publicly available information about a current or prospective employee or from implementing a policy relating to the use of an employer-issued electronic device or account that the employee uses for business purposes. This law does not prevent employers from conducting an investigation to ensure compliance with applicable laws or prohibitions against work-related employee misconduct; or responding to a receipt of specific information about the unauthorized transfer of the employer’s proprietary, confidential, or financial information to an employee’s personal account. The law does not provide a private right of action, but civil fines may be imposed for violations. N.J.S.A. 34:6B-5 to 34:6B-10. The Opportunity to Compete Act applies to employers with at least 15 employees over 20 calendar weeks who do business, employ persons, or take applications for employment within New Jersey. The Opportunity to Compete Act prohibits employers from (1) requiring an applicant to complete an employment application that makes any inquiries regarding the applicant’s criminal record; or (2) making any oral or written inquiry regarding an applicant’s criminal record during the “initial employment application process.” The “initial employment application process” begins when an applicant or employer first makes an inquiry to the other party about a prospective position and concludes when the “employer has conducted the first interview, whether in person or by any other means, of an applicant for employment.” Employers are also prohibited from publishing any advertisements or solicitations for employment stating that the employer will not consider any applicant who has been arrested or convicted of one or more offenses. N.J.S.A. 34:6B-11 et seq. New Jersey Wiretapping and Electronic Surveillance Control Act prohibits employers from (a) purposefully intercepting, trying to intercept, or having another person intercept any wire, electronic or oral communication; and (b) knowing the information was obtained through a wire, electronic, or oral communication interception, either: disclosing or attempting to disclose the contents or any evidence from the communication, or using or attempting to use the contents or any evidence from the communication. There are several significant exceptions. It is lawful for a switchboard operator or an officer, agent, or employee of a wire or electronic communication service provider to intercept a communication if the interception is either: during the normal course of employment and part of the employee's duties; or to protect the employer's rights or property. The law also provides an exception when one of the parties to the communication has given prior consent to the interception. In addition, the law exempts devices given to employees by their employers and which are used in the normal course of business. The law provides for a private right of action. Any person whose communication is intercepted, disclosed or used in violation of the Wiretap Act may recover: actual damages, but not less than liquidated damages computed at a rate of $100 per day of violation or $1,000, whichever is higher; punitive damages; attorneys’ fees; and reasonably incurred litigation costs. N.J.S.A. 2A:156A-1 to 2A:156A-37.

New Jersey employers are also required to notify employees of devices used for the purpose of tracking the movement of a person, device or vehicle, regardless of whether the vehicle is owned by the employer or the employee. The law defines "tracking device" as "an electronic or mechanical device which is designed or intended to be used for the sole purpose of tracking the movement of a vehicle, person, or device." However, the definition specifically excludes devices used for the purpose of documenting employee expense reimbursement. Employers that violate this law are subject to civil penalties of $1,000 for the first violation and $2,500 for each subsequent violation. N.J.S.A. 34:6B-22.

The New Jersey Law Against Discrimination ("NJLAD") makes it unlawful for an employer or labor organization to discriminate against or harass an employee based on the employee’s membership in a protected class which includes, “race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy or breastfeeding, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait . . . liability for service in the Armed Forces of the United States . . . nationality . . . [or] refusal to submit to a genetic test or make available the results of a genetic test to an employer.” N.J.S.A. 10:5-12. “Race” is inclusive of traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles (such as braids, locks, and twists). The law applies to all employers regardless of the number of persons they employ. N.J.S.A. 10:5-5. Employees alleging violations of the NJLAD may seek relief either before the New Jersey Division on Civil Rights or in Superior Court; unlike Title VII, seeking administrative review is not a prerequisite to filing suit. N.J.S.A. 10:5-13. Employees have two years to file a complaint about a violation of this law. Montells v. Haynes, 133 N.J. 282, 292, 627 A.2d 654 (1993).

Under the July 1, 2018 amendment to the NJLAD, known as the Diane B. Ellen Equal Pay Act, employers are prohibited from compensating members of any of the above-referenced protected classes less favorably than other employees of different protected classes for “substantially similar work when viewed as a composite of skill, effort and responsibility.” The amendment also prohibits retaliation for discussing/disclosing salary and benefits to other employees, former employees, an attorney, or a government agency, and prohibits requiring a current or prospective employee to waive the ability to discuss their compensation with others. There are certain limited exceptions, including differential pay based on seniority or merit-based systems. The amendment also excepts differential pay if all of the following five requirements are met: (1) differential is based on “bona fide factors other than the characteristics of members of the protected class” such as training, education or quality of production; (2) the factor(s) are not based on and do not perpetuate a differential in compensation based on characteristics of a protected class; (3) the factor(s) are applied reasonably; (4) one or more of the factors account for the entire differential; and (5) the factor(s) are job-related and based on legitimate business need. Unlike the rest of the NJLAD, claims under this amendment carry a six-year (not two-year) statute of limitations period, and violations can lead to treble damages.

The NJLAD imposes a number of additional prohibitions and requirements on employers. The NJLAD requires employers to accommodate employees’ sincerely held religious beliefs, disabilities and pregnancies. N.J.A.C. 13:13-2.5; N.J.S.A. 10:5-12(s). The law also prohibits the distribution of employment-related advertisements or making pre-employment inquiries (including through the use of employment applications) that either overtly or implicitly express limitations based on membership in any protected classes including, race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, gender identity or expression, disability, nationality, pregnancy or breastfeeding, or sex or liability of any applicant for employment for service in the Armed Forces of the United States, unless the limitation is based on a bona fide occupational qualification. N.J.S.A. 10:5-12(c).

In addition, employees in New Jersey are protected from termination of employment for engaging in protected conduct, including the following:

• Taking time off work for jury duty. N.J.S.A. 2B:20-17.
• Filing a claim for workers’ compensation benefits or testifying at a workers’ compensation hearing. N.J.S.A. 34:15-39.1.
• Opposing any practice or act of discrimination, or filing a complaint, testifying or assisting in any discrimination proceeding. N.J.S.A. 10:5-1 et seq.
• Disclosing activities that the employee reasonably believes are illegal or against public policy, or providing information or testifying in connection with an inquiry into an employer’s violation of law, or refusing to participate in activities reasonably believed to be illegal or against public policy. N.J.S.A. 34:19-1 to 34:19-8.
• Filing a claim, testifying, or giving information about taking time off from work under the New Jersey Family Leave Act. N.J.S.A. 34:11B-1 et seq.
• Requesting benefits under the New Jersey Family Leave Insurance or Temporary Disability Insurance laws. N.J.S.A. 43:21-55.2.
• Filing a complaint, instituting proceedings, or providing testimony about wage and hour information, or serving on a wage board. N.J.S.A. 34:11-56a et seq.
• Voting or refraining from voting in any election, or voting for or refraining from voting for a particular candidate, or expressing concern that an employer is attempting to influence political opinion via printed material on paychecks. N.J.S.A. 19:34-27 to 19:34-31.
• Reporting alleged child abuse or neglect, or abuse, neglect or exploitation of a vulnerable adult. N.J.S.A. 9:6-8.13; N.J.S.A. 52:27D-409(a), -409(d).
• Refusing to participate in or perform abortion services or sterilization procedures. N.J.S.A. 2A:65A-1, -2, -3, -4.
• Filing a claim with respect to violations of minimum wage requirements. N.J.S.A. 34:11-56a24.
• Filing a complaint about an employer’s failure to pay full wages owed to the employee. N.J.S.A. 34:11-4.1, et. seq.
• Refusing to provide or disclose any user name or password, or in any way provide access to, a personal electronic account; or reporting, participating in any investigation regarding, or otherwise opposing any violation of this prohibition. N.J.S.A. 34:6B-8.   
• Requesting or using earned sick leave. N.J.S.A. 34:11D-4. 

Vacation Pay - New Jersey law does not require employers to provide employees with paid vacation unless the employer maintains a policy or is otherwise contractually bound to do so. Likewise, employers who voluntarily provide paid vacation are not required to pay accrued but unused vacation time upon separation from employment unless required to do so by policy or contract. Chrin v. Cambridge Hydrodynamics, Inc., No. A 3610-02T5, 2003 WL 25754809, at *1 (N.J. App. Div. Dec. 30, 2003).

Sick Leave - New Jersey employers must provide earned sick leave to employees who they employ within the state of New Jersey. N.J.S.A. 34:11D-1 et seq. Employees accrue one hour of earned sick leave for every 30 hours worked, up to a maximum of 40 hours per benefit year. Alternatively, employers may “front load” employees’ sick leave entitlement, and provide employees 40 hours of earned sick leave at the beginning of each benefit year. Depending on the circumstances, employees may carry forward up to 40 hours of unused earned sick leave to the next benefit year or be paid for such time. Employers can comply with the law by providing paid time off at full pay, so long as the paid time off accrues in an amount at the same or better rate, may be used for the same purposes as earned sick leave, and complies with all other aspects of the New Jersey earned sick leave law. Newly hired employees accrue earned sick leave immediately but do not need to be permitted to use it until the 120th day after their employment commences. N.J.S.A. 34:11D-4.

Employees may use earned sick leave:

 ·         To care for their own mental or physical illness, injury, or other condition;

·         To care for a family member’s mental or physical illness, injury or other condition (family member is defined broadly to include “a child, grandchild, sibling, spouse, domestic partner, civil union partner, parent, or grandparent of an employee, or a spouse, domestic partner, or civil union partner of a parent or grandparent of the employee, or a sibling of a spouse, domestic partner, or civil union partner of the employee, or any other individual related by blood to the employee or whose close association with the employee is the equivalent of a family relationship”);

·         To obtain treatment and other counseling in connection with the employee (or his or her family member) being a victim of domestic or sexual violence; 

·         Time during which the employee is not able to work because of:

o   closure of the employee's workplace, or the school or place of care of a child of the employee by order of a public official or because of a state of emergency declared by the Governor, due to an epidemic or other public health emergency;

o   the declaration of a state of emergency by the Governor, or the issuance by a health care provider or the Commissioner of Health or other public health authority of a determination that the presence in the community of the employee, or a member of the employee's family in need of care by the employee, would jeopardize the health of others;

o   during a state of emergency declared by the Governor, or upon the recommendation, direction, or order of a healthcare provider or the Commissioner of Health or other authorized public officials, the employee undergoes isolation or quarantine, or cares for a family member in quarantine, as a result of suspected exposure to a communicable disease and a finding by the provider or authority that the presence in the community of the employee or family member would jeopardize the health of others; and

·         Time needed by the employee in connection with a child of the employee to attend a school-related conference, meeting, function or other event requested or required by a school administrator, teacher, or other professional staff members responsible for the child's education, or to attend a meeting regarding care provided to the child in connection with the child's health conditions or disability. N.J.S.A. 34:11D-1 and D-3.

Holiday Pay - New Jersey does not require holiday pay.

Family and Other Medical Leaves - The New Jersey Family Leave Act (N.J.S.A. 34:11B-1 et seq.) (" NJFLA ") is substantially similar to the federal Family Medical Leave Act of 1993 ("FMLA "), with a few significant exceptions.

The NJFLA does not cover the employee’s own serious health condition. Like the FMLA, it covers leave to provide care after the birth, placement for adoption of a child, or placement of a child into foster care with an employee, or for the serious health condition of a covered family member such as a child, parent, and/or spouse, but also more broadly covers leave for a parent-in-law, sibling, grandparent, partner in a civil union or any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship. N.J.S.A. 34:11B-3(i) to (j); N.J.S.A. 34:11B-4. “Child” includes biological, adopted, resource family children, children of those who become parents through a valid agreement with a gestational carrier, stepchildren and legal wards who are under 18 or who are incapable of self-care because of an impairment. N.J.S.A. 34:11B-3(a). Parent includes biological parent, adoptive parent, resource family, step-parent, parent-in-law, legal guardian, or one who has a parent-child relationship (as defined by statute) or has sole or joint legal or physical custody. Because the NJFLA does not cover the employee’s own serious health condition, employees may be entitled to significantly more leave than under the FMLA, especially in the case of female employees having babies, since their NJFLA leave will not run concurrently with their medical leave under the FMLA.   

NJFLA also covers leave made necessary by a declaration of a state of emergency by the Governor, or when indicated by the Commissioner of Health or other public health authority, where there is an epidemic of a communicable disease, known or suspected exposure to a communicable disease, or efforts to prevent the spread of a communicable disease which (1) requires the in-home care of an employee’s child due to school closure or place of care by order of a public official or (2) requires the care of an employee’s family member due to mandatory quarantine or other determination by a public health authority or health care provider that the presence of the individual in the community would jeopardize the health of others due to a known or suspected exposure to a communicable disease. N.J.S.A. 34:11B-3(i)(4).

The NJFLA applies to employees who have worked for their employer for at least one year and at least 1,000 hours during the 12 months preceding the leave and applies to employers with 30 or more employees. The requisite 1,000 hours worked includes hours when the employee is receiving workers’ compensation benefits. N.J.A.C. 13:14-1.2. Eligible employees are entitled to 12 weeks of leave during any 24-month period. Leave after the birth or placement of a child for adoption must begin within one year of the date of birth or placement. N.J.S.A. 34:11B-4(c).

In some circumstances, employees may take family leave intermittently or on a reduced schedule leave. Intermittent leave is defined as leave for a single qualifying reason, taken in separate periods of time, in intervals of at least one workweek. N.J.A.C. 13:14-1.2. Reduced schedule leave is leaving for a single qualifying reason that is scheduled for fewer than an employee’s usual number of hours worked per workweek, but not fewer than the employee’s usual number of hours worked per workday. N.J.A.C. 13:14-1.2.

The employee must be able to take intermittent leave if the intermittent leave is medically necessary, it is taken within a 12-month period of the instant occurrence of a serious health condition, the employee gives reasonable and practicable notice to the employer, and the employee makes a reasonable effort to schedule the leave such that it does not unduly disrupt the employer’s operations. N.J.S.A. 34:11B-4(a). Employees may take intermittent or reduced schedule leave to bond/care for their newborn or newly adopted or foster-placed children, without employer approval or medical necessity. Intermittent and/or reduced schedule leave may not be taken for longer than 12 months. Only one reduced schedule leave may be taken in any 24-month period.

Under the New Jersey Family Leave Insurance Law employees may be eligible for compensation during certain covered leaves of absence. Family Leave Insurance does not require employers to provide leave but provides compensation to employees during eligible leaves. Under this law, employees are entitled to 12 weeks of consecutive leave benefits and 56 days of intermittent leave benefits. Employers may cover the employees in a private plan or a state plan. N.J.S.A. 43:21-39.1, et. seq.

Under the New Jersey Temporary Disability Insurance, an employee who experiences a disability as a result of donating any organ or bone marrow is entitled to be restored by the individual’s employer to the position of employment held by the individual prior to the leave, and incapacitated employees may be eligible for compensation. N.J.S.A. 43:21-29.2.   

Leave for Victims of Domestic Violence and Sexual Assault – Pursuant to the New Jersey Security and Financial Empowerment Act (“NJ SAFE Act”), employers with at least 25 employees must provide 20 days of unpaid leave time to employees who are the victim of domestic violence or sexual assault or whose child, parent, parent-in-law, sibling, grandparent, spouse, domestic partner, civil union partner, or any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee that is the equivalent of a family relationship was the victim, within one year of the incident of domestic violence or sexual assault. Leave may be taken on a reduced schedule or intermittent leave basis in intervals of no less than one day. Eligible employees must have been employed for at least 12 months and at least 1,000 base hours during the 12-month period immediately preceding the leave. If leave is foreseeable, the employee must provide the employer with written notice of the need for the leave. The notice must be provided to the employer as far in advance as is reasonable and practical under the circumstances. N.J.S.A. 34:11C-1 et seq. Employees taking leave under the NJ SAFE Act may collect paid family leave insurance benefits.

New Jersey recognizes and will enforce restrictive covenants in the employment context. Courts will assess covenants under a reasonableness standard. Covenants must be reasonable as to time, geography, and scope. Reasonableness is a fact-specific inquiry and depends on the circumstances. Restrictions should be no broader than are necessary to protect the legitimate interest involved. Legitimate, protectable interests under New Jersey law include trade secrets, confidential and proprietary information, goodwill, customer relationships, referrals, and training. Noncompetition and non-solicitation covenants lasting one to two years have been enforced. Karlin v. Weinberg, 77 N.J. 408, 417 (1978); Solari Indus., Inc. v. Malady, 55 N.J. 571, 576 (1970). Assembly Bill 3715, currently pending before the New Jersey Legislature, would impose strict procedural requirements on New Jersey employers seeking to restrict their employees' post-employment activities, limit the permissible scope and enforceability of certain restrictive covenants, and increase the associated costs of enforcing restrictive covenants against former employees.

There is currently no prohibition against terminating the employment of employees who refuse to sign a restrictive covenant. A covenant must be supported by adequate consideration, which can be new employment, continued employment, access to confidential information, or other considerations. For further information relating to restrictive covenants under New Jersey law, please see the response to "Are restrictive covenants recognized and, if so, what are reasonable restrictions as to geography, duration and scope of activity?"

New Jersey does not require private employers to contribute to a pension or retirement scheme. The New Jersey Secure Choice Savings Program requires employers with 25 or more employees that have been in business for at least two years and do not otherwise offer a 401(k) or other individual retirement account covered under Section 401 of the tax code to make automatic payroll deductions of 3% on a pre-tax basis from employee salaries to fund a state-run individual retirement account program. Employers have a 24-month "grace period" to comply with the law, which may be extended for an additional 12 months by the board established to administer the fund.

Employers must provide employees with worker’s compensation insurance, unemployment compensation insurance, family leave insurance, and temporary disability insurance. Further information about the Temporary Disability Benefits and Family Leave Insurance can be found on the New Jersey Department of Labor, Division of Temporary Disability and Family Leave Insurance’s website, which can be found here (https://myleavebenefits.nj.gov/labor/myleavebenefits/employer/index.shtml?open=TDI). Employees are also entitled to leave benefits pursuant to the New Jersey Earned Sick Leave Act, the New Jersey Family Leave Act and the New Jersey SAFE Act, subject to statutory eligibility requirements. For additional information, please see the response to "Are there statutory rights to vacation, medical leave and parental leave? Have there been any changes to leave benefits in the past 12 months? Is there any proposed legislation that employers should be aware of that will impact leave benefits?" The New Jersey Continuation Coverage Rules (“NJCCR”) mandate the continuation of health insurance coverage for certain employees, their spouses and dependent children, and applies to employers/employees not covered by the federal Consolidated Omnibus Budget Reconciliation Act of 1985. NJCCR applies to employers that offer their employees health coverage and employ between two and 50 eligible employees, the majority of whom are employed in New Jersey, for at least 50 percent of the business days during the preceding calendar year quarter. Covered employers must notify employees of their continuation rights at the time of a qualifying event. “Qualifying events” include termination of employment, reduction in work hours, death of the employee, divorce of the employee from his/her spouse and when a dependent child ceases to be an eligible dependent. Employees are eligible under the NJCCR when they are terminated other than for cause (which is not defined) and/or when their work hours are reduced below 25 hours per week. Spouses and dependent children also are eligible in the event of death of the employee, divorce or a dependent child ceasing to be an eligible dependent. The amount of coverage to which an eligible employee is entitled depends on the reason for the underlying loss of coverage.

In general, private employers in New Jersey cannot set a specific retirement age for employees, or force employees to retire because of their age.

There are no specific state laws governing the cessation of benefits at a certain age. There may, however, be additional considerations under federal law.

Employers may require employees to obtain COVID-19 vaccinations as a condition of employment if they comply with federal and state employment laws, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the New Jersey Law Against Discrimination, and the New Jersey Conscientious Employee Protection Act.

Employers may not require employees to receive COVID-19 vaccines if:

1. a medical condition prevents vaccination
2. a physician advises against vaccination while pregnant or breastfeeding; or
3. sincerely held religious beliefs prevent vaccination. 

In the above events, the employer must provide a reasonable accommodation from any mandatory-vaccine policy unless doing so would impose an undue burden on operations. Safety-hazard concerns must be based on objective, scientific evidence, including evidence reflected in policies and guidance from the Center for Disease Control as well as other federal, state, and local authorities, and not on unfounded assumptions or stereotypes. Reasonable accommodation may include allowing the employee to continue to work remotely, or providing the employee with personal protective equipment to mitigate the risk of COVID-19 transmission and exposure. An employer that cannot provide a reasonable accommodation that would mitigate the risk of COVID-19 transmission or exposure should, nonetheless, be cautioned against disciplining employees who cannot get vaccinated as “the employer may be precluded from doing so by other laws, regulations, or policies.”  Under the New Jersey Law Against Discrimination, if there is no reasonable accommodation that an employer can provide that would mitigate the risk of COVID-19 transmission to its employees and customers, the employer can enforce a policy of excluding unvaccinated employees from the physical workplace, even if they are unvaccinated because of a disability, pregnancy, or breastfeeding, or a sincerely held religious belief.

Until vaccines are fully approved by the U.S. Food and Drug Administration, employees whose employment is terminated due to a refusal to be vaccinated may attempt to bring a public policy/retaliation claim.

For employers with a unionized workforce, depending on the applicable collective bargaining agreement, employers may have a duty to bargain a vaccine program.

Under E.O. 107, employers must allow employees to work remotely if their job can be performed remotely.

Under E.O. 192, employers are required to protect employees, customers, and others who come into physical contact with its operations from the spread of COVID-19. Accordingly, employers must adopt policies implementing measures such as social distancing, wearing face masks, health checks, and the cleaning and disinfecting of high-touch areas. If an employee refuses to return to work because of perceived violations of the health and safety protocols set forth in this E.O. 192, such an employee may file a complaint with the commissioner of the Department of Labor and Workforce Development.

Employees may be entitled to job-protected leave under the New Jersey Family Leave Act ("NJFLA") and/or the New Jersey Earned Sick Leave Law ("NJESLL"), which may preclude termination of employment if such leave is available. Employees may also be entitled to remote work as an accommodation for a disability.