On August 2, 2023, the National Labor Relations Board issued its long-anticipated decision in the Stericycle case. Employer policies and work rules will come under greater scrutiny. Any rule or policy that an employee would reasonably perceive as tending to have chilling effect on protected collective activity will be presumptively unlawful unless the employer can prove (a) the rule or policy advances a legitimate and substantial business interest and (b) the employer is unable to advance that interest with a more narrowly tailored rule.
This new standard applies to non-union employers in the private sector as well as to unionized employers.
The details of the NLRB’s new approach are troubling. When determining whether an employee would perceive a rule or policy as having a chilling effect, the NLRB will not consider the perspective of “reasonable employee,” but of an employee who is both economically dependent on his or her job and who is considering engaging in protective activity – that is, an employee who has an incentive to detect a chilling effect. Second, if it is reasonable to interpret a rule or policy as having a chilling effect, the rule or policy will be presumptively unlawful even if it could equally well be interpreted as not having a chilling effect. Third, the employer’s intentions are irrelevant.
If a rule or policy is found to have a chilling effect under this generous standard, the employer must then pass a strict standard to justify it. Not only must the employer demonstrate a legitimate and substantial business interest. It must also show that there is no alternative rule or policy that can advance that interest. This is the same “strict scrutiny” standard that the courts apply in cases involving government action that impinges on fundamental freedoms and, as one may guess, is a difficult standard to meet.
It is time for private sector employers to carefully review their policy manuals and work rules. Employers with questions regarding this new ruling should contact Trimboli & Prusinowski, L.L.C., at (973) 660-1095.
New Requirements
Effective July 31, 2023, the New Jersey Unemployment Compensation Act, N.J.S.A. 43:21-6, will require employers to follow new reporting procedures when an employee separates from employment.
Employers will be required to provide the New Jersey Department of Labor Divisions of Employer Accounts and Unemployment Insurance (the “Division”) with specific information, through electronic filing, regarding the employee’s separation from employment immediately upon the employee’s separation, regardless whether the employee resigned, was terminated, or was laid off. The Division has not yet published the information it expects employers to submit. Employers will be notified through Employer Access (see below) when the required information is identified.
IMPORTANT NOTE: All communication between Employers and the Division must be done through electronic means. Therefore, employers must provide the Division with an E-Mail address through Employer Access.
In New Jersey, the instructions for claiming unemployment benefits are set forth on Form BC-10. Previously, employers were only required to provide the filled-out form to the separating employee. Effective July 31, 2023, employers will now be required also to provide the form to the Division simultaneously and immediately upon an employee’s separation.
New Deadlines for Submission of Information
Representatives of the Division, (“Deputies”), will notify employers of any missing information within seven days of an employer’s disclosure of an employee’s separation. Employers must furnish the missing information to the Deputy within seven days of the employer’s initial submission. The information will be provided to the separated employee, who will be given the opportunity to respond. The employer will be notified of the former employee’s response and be given seven days to respond. However, if a claim is made and the employer does not provide the Division with the required information, the Division will notify the employer and the employer will have seven days to provide the information.
Deputies may rely on information from other sources if an employer fails to respond within seven days of being notified of a claim. If the Deputy determines that benefits are justified through information not supplied by an employer, the employee’s benefit payments will commence immediately.
Appeals
An employer must file an appeal within seven days of a Deputy’s confirmation of an initial decision or the initial decision becomes final. During the pendency of an appeal, benefits will accrue and be paid according to the initial determination. If the initial determination is reversed or the employee’s benefit is reduced, the amount paid to the employee will be treated as an overpayment.
Financial Penalties
Employers who fail to submit the required information will be subject to a penalty of $25.00 for the first report not submitted within 10 days after the mailing of a request for information, and an additional $25.00 penalty may be assessed for the next 10-day period if the information is not provided.
Further, any employer who fails to disclose material information, or makes a false statement or misrepresentation, or refuses to furnish required reports or information will be subject to a fine of $500 or 25% of the amount fraudulently withheld, whichever is greater.
Each false statement or misrepresentation, and each day of failure or refusal to disclose material facts, will be considered its own separate offense.
What Employers Can Do Now
Employers can ensure compliance by creating an account with Employer Access. Creating such an account provides the Division with the required email address the Division will use to communicate updates.
For further information on the new requirements for Unemployment Compensation and the new challenges they present, consult an experienced labor and employee attorney at Trimboli & Prusinowski, LLC. Call 973-285-1095 to set up an appointment with an experienced attorney who can assist you and your business.
