HR Tip of the Month: Handbooks Are Only Useful When UsedJanuary 2017

For any employer, no matter the size, handbooks are crucial. However, they are only valuable if actually used. The new year presents a great opportunity to review your employment policies and handbooks and to make sure that you consult them every time an employment issue presents. It makes little sense to have an employment policy governing a certain situation, but ignore it when that very situation arises. Further, it is important that employment policies are applied consistently. Where an employment policy grants the employer discretion in how to handle a situation, the employer should document how it came to the conclusion it did. Where an employment policy dictates a certain result, the employer should generally apply it or consult with your labor counsel before making an exception.

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New York Raises Weekly Salary Thresholds for Executive and Administrative EmployeesJanuary 2017

On December 31, 2016, the New York Department of Labor raised weekly salary thresholds necessary to meet the executive and administrative exemptions to New York State overtime laws. Prior to December 31, 2016, the salary threshold was $675 per week or $35,100 annually. As of December 31, 2016, for employers in New York City with 11 or more employees the new salary threshold is $825 per week or $42,900 annually. For employers in New York City with 10 or fewer employees, the new salary threshold is $787.50 per week or $40,950 annually. For Nassau, Suffolk and Westchester counties, the new salary threshold is $750 per week or $39,000 annually. The obligation to comply with these amended salary requirements is separate and independent of the federal regulatory changes that have been on hold pending a federal judicial decision.

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Morristown Paid Sick Leave Ordinance Goes Into EffectJanuary 2017

On January 11, 2017, the Town of Morristown Paid Sick Leave Ordinance became effective. Morristown’s paid sick leave rules are virtually identical to a number of other New Jersey towns which have passed similar ordinances. Most importantly, employees working in Morristown have a right to paid sick time off, which they can use for the care and treatment of themselves or a family member. Family members include children, parents, spouses, grandparents, grandchildren, domestic partners or siblings. Employees accrue one (1) hour of paid sick time off for every thirty (30) hours worked. Employees should have started accruing paid sick time as of January 11, 2017 and are eligible to begin using that time on April 11, 2017. If your employees work in Morristown, your company needs to comply with this law.

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New Jersey's Minimum Wage Set to IncreaseOctober 2016

Effective January 1, 2017, New Jersey's minimum wage will increase from $8.38 per hour to $8.44 per hour.

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New Overtime Regulations Go Into Effect on December 1, 2016October 2016

As a reminder, and as reported in prior updates, the new federal overtime regulations regarding the “white collar exemptions” go into effect on December 1, 2016. Put simply, the new regulations increase the minimum salary that employers must pay administrative, executive and professional employees in order for them to remain exempt (i.e., not entitled to overtime). Specifically, the minimum salary is being raised from $455 per week ($23,660 per year) to $913 per week ($47,476 per year). In other words, as of December 1, 2016, administrative, executive and professional employees who make less than $47,476 per year will no longer be exempt and must be paid overtime.

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Morristown Delays Effective Date of New Sick Leave OrdinanceOctober 2016

The Morristown Sick Leave Ordinance, which was scheduled to go into effect on October 4, 2016, has been delayed. Mayor Timothy P. Dougherty has delayed the effective date until January 11, 2017. This will allow affected employers more time to implement its requirements.

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HR Tip of the Month: Politics in the Workplace, Understand the Legal RisksOctober 2016

Some employers may seek to ban political discussions because of its potential to disrupt the operation of the office. What managers and employers don’t always appreciate is that politics in the workplace may trigger certain legal rights and obligations.

Many employees are under the mistaken belief that they have a constitutional right to talk politics in the workplace. However, the First Amendment to the U.S. Constitution (i.e., the right to “freedom of speech”) only applies to actions by the government, not private employers. As such, as a general rule, private employers are free to prohibit political discussions in the workplace. However, this general rule may be trumped (no pun intended) by the National Labor Relations Act (“NLRA”). The NLRA applies to both unionized and non-unionized employers and protects the rights of employees to engage in concerted activity (e.g., to discuss the terms and conditions of employment). Therefore, under the NLRA, an employee may have a right to talk about a candidate’s policies as they relate to minimum wage or overtime laws.

Additionally, given some of the “hot button” issues in the current presidential election, political speech may result in employee claims of harassment and discrimination. For example, a hostile work environment could arise if employees are subjected to unwelcome discussions on immigration, equal pay for women or abortion rights. Conversely, disciplining the employee who discusses such political issues could result in a claim of retaliation (e.g., a woman discussing equal pay legislation could argue she was disciplined in retaliation for her speaking out on discriminatory pay policies).

Employers should insure that all policies and actions relating to political speech are compliant with applicable law. Further, employers in New York are reminded that they are obligated under certain circumstances to provide employees with paid time off to vote. New Jersey has no such law; however, it a crime in New Jersey for an employer to intimidate, threaten, or use violence to induce, compel or coerce any employee to vote for a particular candidate.

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HR Tip of the Month: If Retaliation Claims Still Are Not On Your Radar, You Need To Adjust Your AntennaSeptember 2016

As discussed below, the U.S. Equal Employment Opportunity Commission recently issued new enforcement guidance on how broadly (very) it interprets the anti-retaliation protections contained in the various employment discrimination statutes the agency enforces. These statutes contain provisions that make it unlawful for an employer to take an adverse employment action against any employee or applicant who engages in a protected activity. A protected activity can be either participating in an EEO process (including internal investigations according to the EEOC) or opposing a perceived unlawful EEO practice. The new guidance will sound familiar to employers who work their employment counsel regularly on discipline and internal investigation issues. But the most obvious take away from this new guidance for employers is: it is not reasonable any longer to conduct an internal investigation or discipline employees without “checking-in” with your employment counsel first. That 15 minute check in can often times avoid a claim or, if a claim arises, ensure that the company has a defense.

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EEOC’s New Enforcement Guidance on Retaliation ClaimsSeptember 2016

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued new enforcement guidance on retaliation claims under the various federal employment laws it enforces, which include Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”). This new guidance is significant not only for the agency’s interpretation of what acts constitute retaliation but also because many states follow the EEOC’s lead in interpreting their own State employment discrimination laws. The new guidance confirms what labor and employment attorneys have known for some time: that retaliation claims have been on the rise for several years and they are often more difficult to defend than traditional discrimination claims. That is because the employer actions that constitute an “adverse employment action” for a retaliation claim are far broader than for a discrimination claim. With the new guidance, the EEOC issued a question and answer sheet that employers should review as the start to implementing workplace training to supervisors and managers so they do not engage in retaliatory behavior.

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The Department of Labor’s Response to the Recent Lawsuit Regarding Overtime RegulationsSeptember 2016

In another attempt to limit the revised white collar overtime exemptions, which are set to go into effect on December 1, 2016, several states and business groups have filed two federal lawsuits in the Eastern District of Texas to stop one part of the new regulations. Neither New Jersey nor New York joined the lawsuits. The lawsuits challenge both the initial raise of the salary basis (from $455/week to $913/week) as well as the automatic inflation-linked adjustments every three years. The U.S. Department of Labor issued a statement defending the revised regulations. Employers in New Jersey and New York (and elsewhere for that matter) should not rely on these lawsuits succeeding and should still be planning to comply with the revised regulations effective December 1, 2016.

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