When New Jersey Governor Murphy issued Executive Order 107 in March 2020, directing New Jersey residents to stay at home and requiring the closure of all non-essential businesses, employers faced immediate questions. Which businesses could remain open? What obligations did employers have to employees who could no longer come to work? How should remote work arrangements be documented and managed? The answers had significant legal and practical implications that required prompt action.
At Mandelbaum Barrett PC, the firm’s employment and corporate attorneys worked with New Jersey businesses throughout the stay-at-home period to help them navigate their obligations, protect their employees, and manage their operations within the constraints of the emergency order. This overview covers the key employment considerations that arose during that period.
Essential Businesses and Continuing Operations
Executive Order 107 directed the closure of all brick-and-mortar premises of non-essential retail businesses while allowing essential businesses to continue operations. Essential businesses included healthcare operations, infrastructure facilities, financial services, food and beverage operations, organizations providing charitable services, and businesses whose products and services were essential to other essential businesses.
Determining whether a particular business qualified as essential required careful analysis of the order’s language and subsequent clarifying guidance from the Governor’s office. Many businesses operated across categories, with some functions that were clearly essential and others that were not. Employers in ambiguous situations needed to document their essential status reasoning and be prepared to demonstrate compliance with the order if challenged.
Managing Employees During the Order
For employers who could not immediately transition all or part of their workforce to remote work, the stay-at-home order created immediate workforce challenges. Employees who could not work remotely and whose positions were not essential faced layoff, furlough, or reduced hours. Each of these options had different implications under New Jersey’s WARN Act, the FFCRA, and existing employment agreements.
Employers who reduced hours or compensation for employees needed to review whether those changes required advance notice or created constructive discharge claims under applicable law. New Jersey’s WARN Act, which requires notice for large-scale layoffs, was a particular concern for businesses that needed to make rapid workforce reductions in response to the order. Understanding the available exemptions and the potential consequences of non-compliance was important for businesses making fast decisions under pressure.
Remote Work and Wage and Hour Compliance
The rapid transition to remote work during the stay-at-home order created practical and legal questions that many employers had not previously addressed. Pay practices for non-exempt employees working from home required careful attention to overtime and off-the-clock work concerns. Expense reimbursement for employees using personal equipment and home internet connections raised questions about employer obligations under New Jersey law.
According to the U.S. Department of Labor’s Wage and Hour Division, the Fair Labor Standards Act’s requirements for tracking and compensating non-exempt employee hours apply equally to remote work as to in-person work. Employers who relied on informal honor systems during the pandemic, without proper timekeeping for remote non-exempt employees, may have created wage and hour exposure that outlasted the emergency itself.
Workplace Safety as Businesses Reopened
As New Jersey began its phased reopening in mid-2020, employers faced new obligations under the New Jersey Department of Health’s workplace safety requirements. These included social distancing protocols, face covering requirements, symptom screening, enhanced sanitation procedures, and notice requirements when an employee tested positive for COVID-19. Employers who did not implement these protocols faced potential enforcement action and potential civil liability from employees who believed they were exposed in the workplace.
Contact Mandelbaum Barrett PC
Mandelbaum Barrett PC’s employment attorneys work with businesses throughout New Jersey and New York on workforce management, compliance, and employment-related disputes. If you have questions about your obligations under current New Jersey employment law, our team is ready to assist.
To speak with a member of our team, contact Mandelbaum Barrett PC. Our attorneys are prepared to assist with your employment law and business needs.