In the U.S. and New Jersey, multiple laws cover the employer-employee relationship. Employers must follow the laws that apply to them, and when they violate these laws and the rights of their employees, they may be liable and have to pay damages. Violations of certain employment laws might also result in steep fines and penalties, making it critical for employers to ensure that they comply. Despite the disincentives for breaking employment laws, many employers still violate them. Employees need to understand their rights and the signs that their employers might be violating their rights and breaking the law. Here are four signs that your employer might be breaking the applicable laws from the attorneys at Swartz Swidler.
1. Asking Improper Questions on Job Applications or During Interviews
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on the protected characteristics of applicants and employees and includes a prohibition on asking certain types of questions about those characteristics on job applications or interviews. Similarly, the New Jersey Law Against Discrimination also prohibits discrimination against applicants and employees based on their protected characteristics.
New Jersey also has a ban-the-box law found at N.J.S.A. § 34:6B-14. Employers are allowed to ask about criminal history information later in the application process, however. Under this statute, employers are prohibited from asking questions about an applicant’s criminal history during the early phases of the application process, including on applications.
Other questions that employers cannot ask during interviews include questions about your age, religious beliefs, perceived disability, marital status, whether you intend to have children, and others. If a prospective employer asks these types of questions during the hiring process, the employer might have violated the law.
2. Forbidding Salary Discussions Between Employees
Many employers do not want their employees to compare their benefits or salaries. However, while they might not want this type of information to be shared, they cannot prohibit their employees from discussing this type of information with each other.
Employers that try to forbid salary discussions and take adverse actions against employees for comparing their salaries at work or during their off-hours might be viewed as engaging in illegal actions to prevent their employees from organizing or forming a union. Employer actions to prevent employees from organizing violate the National Labor Relations Act. These types of prohibitions might also violate the Equal Pay Act since employees cannot determine whether their employers pay equal wages for equal work without having the ability to talk with their co-workers to learn about their compensation.
3. Failing to Pay Minimum Wages or Overtime Pay
New Jersey employers must comply with the Fair Labor Standards Act and the New Jersey Wage and Hour Law. When the NJWHL provides broader coverage to employees, employers must follow its minimum wage provisions instead of the FLSA. The FLSA requires covered employers to pay at least the federal minimum wage of $7.25 per hour to statutory, non-exempt employees. However, the NJHWL requires covered employers to pay the state’s higher minimum wage of $12 per hour in 2021 and $13 per hour beginning in 2022.
Non-exempt employees who work more than 40 hours per week must also receive an overtime premium for each excess hour worked above 40 during the workweek. Overtime pay is calculated at one-and-one-half times an employee’s regular rate of pay. The regular rate of pay includes more than an employee’s simple hourly rate and instead includes other things like bonuses and commissions under N.J. Admin. Code § 12:57-3.5.
Non-exempt, statutory employees cannot be asked by their employers to perform work off the clock and must be paid at least the minimum wage for every hour worked. For example, your employer cannot ask you to do prep work before clocking in or to clean up your work area after your shift ends without compensating you for that time.
Some employers try to evade these rules by misclassifying non-exempt employees as exempt employees or independent contractors. However, to be classified as exempt or as an independent contractor, strict tests must be met. If you think that your employer has misclassified you or has otherwise failed to pay you what you are owed, you should speak to an experienced employment lawyer at Swartz Swidler.
4. Discriminating Against Members of Certain Protected Groups
Under Title VII, its amendments, and the NJLAD, employers are prohibited from discriminating against employees based on their protected characteristics. There are many different types of characteristics that are protected, including the following:
- Genetic information
- National origin
- Marital status
- Citizenship status
- Gender identity
- Sexual orientation
- Other protected characteristics
The prohibition against discrimination applies to all phases of the employment relationship, from hiring to firing. If an employer takes adverse action against an employee or applicant based on his or her protected characteristics, the employer can be liable for discrimination.
Employers must also prevent their employees, supervisors, and customers from engaging in discrimination against protected groups. When an employer receives a complaint about discrimination or harassment based on an employee’s protected characteristics, the employer must promptly investigate what happened and take appropriate action to stop the situation. Employers cannot allow harassment and discrimination to flourish in their workplaces and might be liable when they fail to act and allow the creation of a hostile work environment.
Finally, employers cannot retaliate against employees for complaining about discrimination or harassment. Employers cannot retaliate against employees for complaining about discrimination or harassment even when the underlying complaint is ultimately dismissed.
Get Help from an Experienced Employment Lawyer
There are many other signs that your employer might be breaking the law and violating your employee rights. If you have questions about whether your employer might have engaged in illegal acts that violated your rights, you should speak to an experienced attorney at Swartz Swidler. Call us today at (856) 685-7420 to schedule a free consultation.