Fwd: Road Warrior: New Interpretations of Discrimination Law, New State Retirement Program

July 25, 2024

New Interpretations of Discrimination Law 

The NJ Attorney General’s Office Division on Civil Rights recently proposed a series of regulations that explicitly outlaw a variety of practices in the employment world. They argue that these are not actually new requirements, what they are instead doing is writing down what the courts and the caselaw have already determined to be the law, based on a very broad reading of the state’s Law Against Discrimination. The AG’s Office argues that employers or businesses engaging in any of these activities is already in violation of NJ law, and employees or customers already have the ability to bring a suit against a business for violation of any of these. For example, they just recently settled a lawsuit against a restaurant for enforcing a dress code against a ‘nonbinary’ person, costing the business $10,000 and a series of bad press. 

However, the act of codifying these rules will almost certainly lead to greater enforcement of them, and some of the rules they are proposing are deliberately designed to go beyond the caselaw to make it more likely people who feel discriminated against will be able to go after their employer. As a result, you should be aware of what these provisions are and work to eliminate these practices in order to minimize the risk that some disgruntled person will come after you with a discrimination lawsuit.

These regulations are based on what they call “disparate impact discrimination”, which says that policies or practices that result in a disproportionately negative impact on people who are part of various minority groups are prohibited by the Law Against Discrimination even if the practices are not intended to discriminate. We all know that having a policy of not hiring people of a certain ethnicity or race would be illegal and unethical, but what the Attorney General’s Office is saying is that having some kind of hiring policy that has the effect of making it less likely that people of certain backgrounds will apply is now considered illegal discrimination, even if everyone agrees there was no intent at all to discriminate.

A business could continue a practice that has a ‘disparate impact’ if it can prove that it is a legitimate business necessity, and that there is no alternative that is equally effective but nondiscriminatory.

If someone challenges a business’ practice, the burden is on them to show that the policy has a disparate impact, using empirical evidence. The business then has the opportunity to show that the policy either isn’t discriminatory, or that even though it may have a disparate impact it is a business necessity. At that point the person complaining has the opportunity to suggest an alternative that is equally effective for the business’ needs but non-discriminatory.

One specific exemption to these rules is any kind of ‘affirmative action’ type policy, a policy that favors members of a ‘protected class’ in the name of “achieving diversity or increasing access”.

• Job recruitment
  • Recruitment efforts must be done in a way that maximizes the number of people who see the opening.
  • Employers should not rely only on word-of-mouth recruiting to fill a job opening.
    • The proposal gives a specific example of an employer relying on current employees to recommend someone, and that reliance being illegal since the workforce is mostly Hispanic, and so their network is mostly Hispanic, and therefore non-Hispanic people have been discriminated against.
    • This does not mean an employer cannot use word-of-mouth recruiting as one way to find employees, but if there is a vacancy you should protect yourself by making sure the opening is posted somewhere online publicly.
  • Pre-screening and interviews may be seen as discriminatory depending on how they are conducted, they use an example of only holding interviews on Saturdays as discriminatory against people whose religions prohibit work on Saturdays.
  • Any applications which screens out applicants based on their schedule must include a way for applicants to request a reasonable accommodation, in case they have a medical disability or religious obligation that prevents them from working on certain days/times.
    • It’s possible no reasonable accommodation can be found, if the specific job absolutely requires they work on those days.
• Employment practices
  • Restrictions on the languages that can be spoken in the workplace, such as requiring employees only speak English on the jobsite is discriminatory.
  • Employers can require an employee speak English, but can only require that the employee speak English at a level necessary to do the specific job.
  • Physical ability requirements must be limited to tasks necessary for the specific job. For example, you can’t set a standard that an employee must be able to lift and carry 20 pounds, unless they need to lift that amount of weight for the job, and that there is no alternative way that the person could perform that task.
  • Dress or appearance restrictions are not be allowed if they would have an impact on those with certain religious beliefs, for example a “no hats” policy could not apply to someone who wears a yarmulke or turban, a “clean shaven” policy could not apply to someone who grows a beard for religious reasons, nor could a policy limiting the lengths of men’s hair be allowed for a potential employee who keeps their hair long for religious reasons.
  • Dress requirements are not allowed if they “do not allow employees to dress in a way that affirms their gender identity”. Basically, you can have uniform or dress requirements, but they can’t be different based on gender.
  • You can’t require an employee have or show a driver’s license unless they need to drive for the job.
  • If an employee is breastfeeding, they need to be given breaks during work hours.
  • A practice of hiring no one with a criminal history may be discriminatory, it would be closer to being allowed if there were an individualized approach, that looked at the context and specific circumstances and charges. That consideration should include the specific duties and responsibilities of the job, the amount of time that has passed, how old they were, whether or not there would be a risk to property or safety from employing them, and evidence of rehabilitation.
• A blanket policy that prohibits weapons, either for employees or customers, must still allow for Sikh patrons to carry a ceremonial kirpan 

Protected classes by the NJ Law Against Discrimination include race, religion, nationality, ancestry, sex, gender identity, sexual orientation, pregnancy, disability, marital status.

If you have any more questions about these rules don’t hesitate to reach out to Eric@njgca.org or Nick@njgca.org at 732-256-9646 for more info. 

New State Run Retirment Program Launches

Last week NJGCA participated in an informational seminar hosted by the NJ Treasury on the new RetireReadyNJ program. If you haven’t heard of this program before, we wouldn’t be surprised.  It was actually created by the New Jersey Secure Choice Savings Program Act in March 2019. The law created a state-administered Individual Retirement Account (IRA) plan. The goal was to develop a government-run savings option for private sector workers whose employers do not offer a retirement plan. Though the program was signed into law in 2019, it obviously took a number of years to get off the ground.  After multiple delays, the plan is finally ready to launch.

At this point, the obvious question is, “Does this apply to me and how will it affect my business?”.  The short answer is that it may, or may not.

On its face, the law stipulates that businesses should register with the state if they:

• Are registered in New Jersey
• Do not currently have an existing retirement plan
• Have 25+ employees
• Have been operating for at least 2 years

All that is needed to register is your federal Employer Identification Number (EIN), and a confirmation access code (which is sent to you during the sign-up process).

If you already offer a retirement plan to your employees, business owners should certify their exemption from the program (which can be done with the provided access code).

Keep in mind that if you meet the qualifications to register, the employer:

• Does not administer the program
• Will make no contributions towards employees' IRA plans (there is no cost at all to employers, and in fact, employer contributions are not permitted)
• Has no fiduciary responsibilities
• Has minimal administrative involvement
• Can easily integrate the program into their current payroll processing (automatic contributions, etc)

It should be noted that, while the law only compels businesses with 25 or more employees (which do not offer a retirement plan) to register, it does not mean that you could not also voluntarily take advantage of the program. In fact, the state has promoted the idea that the program is an advantageous tool for small business owners to use in attracting and retaining talented employees. Ultimately, there may be situational and circumstantial reasons that entice you (or an employee) to register.

Here are a few additional details that should be noted:

• The deadline for employers with 40 or more employees is September 15, 2024.
• The deadline for employers with 25 to 39 employees is November 15, 2024.
• Any employee “saver” who participates in the program will have ownership and control over their individual IRA accounts. 
• An employee’s participation is completely voluntary, and can change their mind on participating at any time. 
• If you are self-employed, 18 years of age or older, have earned income, and are eligible to contribute to an IRA, you can open an individual RetireReadyNJ account.
• If your employee has a previous retirement savings plan, they can roll their previous account into the new RetireReadyNJ account. 
• Full-time and part-time/seasonal workers are treated the same for purposes of calculating the threshold number of employees. This might be helpful in attracting/retaining part time workers to your business.

If you wish to learn more about the plan, you can visit the website by CLICKING HERE

Lastly, there will be an online employer presentation on August 7, 2024 at 11:00 AM.  You can register for this information session by CLICKING HERE 

Rack Averages

News Worth Knowing:

Member Benefit Partner (MBP) Spotlight: Environmental Services – LSRP and Site Remediation 

The NJGCA and Environmental Alliance, Inc. (Alliance) continue to advocate for your business,and alleviate your concerns/worries with: NJDEP enforcement actions; property assessments and investigations; closing outdated UST systems; and performing site remediation. Alliance is a local, fullservice environmental consulting and engineering firm specializing in: 

• Consulting/Addressing NJDEP Notices 

• Site Sampling & Monitoring (soil, soil • vapor, groundwater) 

• UST System Oversight, Investigation & Closure 

• Licensed Site Remediation Professional (LSRP) Services 

• Insurance Claim Support & Litigation Support Services 

• Real Estate Due Diligence Services: NJ Preliminary Assessments, Phase I / Phase II Environmental Site Assessments (We are Approved with Numerous Lending Institutions) 

• Turn-key Site Remediation Solutions Customized to your Property Conditions • Permitting & Regulatory Compliance Assistance

EXCLUSIVE NJGCA MEMBER BENEFITS: 

• A discounted rate schedule 

• Complimentary review of NJDEP documents and evaluation of your property by senior staff 

• A knowledgeable, local staff (including LSRPs), that keep tabs on the ever-changing NJ regulations and guidance documents • We will always have your best interest in mind; offering practical solutions 

Contact: Mike Vanderslice Phone: 732-537-0250 mvanderslice@envalliance. com www.envalliance.com Facebook: https://www.facebook.com/envalliance LinkedIn: https://www.linkedin. com/company/environmentalalliance-inc

Available Real Estate

Cape Harbor Shell

**Price Reduction**

795 Route 109, Unit B, Lower Township, NJ, 08204

Contact: Jerry 609-425-8837 capeharborshell@comcast.net 

Click HERE to view listing

Station for Sale

Thriving High Profit Gas/Service Station close to Major Highway in Prime Location. 

This Exclusive Gas Station is the Sole Provider in the entire town, achieving a remarkable fuel profit of up to and sometimes over 1$ a gallon. Consistently selling 45,000 gallons monthly. Most fuel customers come from Highway so fuel prices do not have to be competitive. 

Also included with the Property is a Reputable High End Auto Repair Facility. Repair shop has all required Specialty and Diagnostic Tools for servicing mostly High End Vehicles. Advertising is no longer used do to an enormous Demand and large Customer Base. Repair Business has has potential for increased profitability and expansion, the business is open to experienced buyers for a possible partnership or profit sharing arrangement. Location is 1 out of 100. Fuel sales make 20-40K a month and repairs can do the same with the right operator. 

This one of a kind opportunity can include seller financing for those with High-Level Automotive or Gas Station Experience.

Contact Greg
908-291-7845

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