By: Jennifer Vorih, Esq., Ty Hyderally, Esq., and Michael Chachura

A favorite local restaurant—Cuban Pete’s in Montclair— had its locks changed by the Montclair Police Department and Essex County Prosecutor’s Office on Monday for not following New Jersey Governor Phil Murphy’s Executive Orders about indoor dining and occupancy limits. After Cuban Pete’s received repeated warnings to comply with the Executive Orders, it continued to operate in violation of the Orders. Ultimately, police officers changed the locks, shutting down the restaurant earlier this week.  While other restaurant owners have followed government mandates, Cuban Pete’s management chose not to follow those rules. But what about the employees of this restaurant and other restaurants which were shut down because their owners refused to follow Executive Orders related to the pandemic?

What Can Employees Do?

In these situations, there is almost nothing employees can do, besides filing for unemployment compensation. New Jersey is an at-will-employment state, meaning employers can terminate most employees for no reason or for any reason except an illegal one. Although New Jersey is an at-will state, employees cannot be fired for illegal retaliation nor for discriminatory reasons such as discrimination based on race, religion, or any other protected classification. If you believe that you were fired for such a reason, you may want to seek legal advice.

Are the Governor’s Executive Orders Legal?

The legality of the Governor’s Executive Orders is a tricky question. The governor’s current Executive Orders are currently legal and enforceable in New Jersey. However, the Governor’s Executive Orders must also follow federal law.

Last month, a federal district court in Pennsylvania struck down significant portions of executive orders of the Pennsylvania Governor. These orders, much like Governor Murphy’s Executive Orders, dealt with issues such as maximum capacity, essential businesses, closing of non-essential businesses, etc. Gubernatorial executive orders are created generally to direct state agencies and state officers, not to govern the activities of the public, which is a power left to the legislative branch.

The mandates of the Governor of Pennsylvania have no direct impact on New Jerseyans; however, because both New Jersey and Pennsylvania are in the Third Circuit of the federal court system, this case is instructive regarding how a New Jersey District Court might rule on a challenge to Governor Murphy’s Executive Orders. Governor Murphy’s Executive Orders are substantially similar to Pennsylvania’s executive orders and therefore, if New Jersey’s Executive Orders are challenged, the same result is possible. However, the New Jersey Executive Orders are very detailed and nuanced, so we cannot predict whether courts will find them to be valid.

Local Businesses and Employees

So, what happens if local businesses defy Governor Murphy’s Executive Orders relating to capacity, etc.? Right now, that is illegal in New Jersey, and such businesses risk being shut down. As of yet, no cases in New Jersey state or federal courts have struck down Governor Murphy’s Executive Orders. For now, what happens in Pennsylvania, stays in Pennsylvania. Unless and until a court declares New Jersey’s Executive Orders invalid, New Jersey employees remain at risk of unemployment if their employers flout Governor Murphy’s Executive Orders.

En nuestra firma hablamos español. This blog is for informational purposes only.  It does not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.