Regulatory UpdatesJune 25, 2018
In a flurry of legislative activity in New Jersey and New York this year, several new laws have been recently adopted in each state. As a recap, here is a list:
New Jersey’s new Equal Pay Act, effective July 1, 2018, amends the New Jersey Law Against Discrimination (“LAD”). This new law provides significant new money damages and extends the statute of limitations for aggrieved employees of any protected characteristic (not just gender) who claim a pay disparity. The new law also places the burden on the employer to justify any pay disparity that exists. Also, expect several more employment laws to be signed into law in calendar year 2018 in New Jersey.
New York State amended its Human Rights Law to impose liability against employers who fail to prevent harassment against non-employees (contractors, vendors, consultants, etc.) in the workplace.
New York State now bars the use of mandatory arbitration clauses to resolve sexual harassment claims. This new law is effective July 11, 2018 although, in light of the U.S. Supreme Court’s recent decision affirming the use of employee arbitration agreements, this law may be the subject of litigation in the future.
New York State, effective July 11, 2018, will prohibit, with an exception in some cases, the use of confidentiality and non-disclosure agreements relating to sexual harassment claims. This new law is effective July 11, 2018.
New York State will require employers to have a written anti-harassment policy as well as annual training. Although these two best practices have historically been recommended to employers, they will now be required by law in New York State, effective October 9, 2018. The New York State Department of Labor will be publishing model policies and training programs and your company should customize those policies to fit the workplace.
Similarly, New York City amended the New York City Human Rights Law to require anti-harassment training to most employers, expand the coverage of the law against sexual harassment claims, and lengthen the statute of limitations for those claims. The mandatory training component of the law will take effect April 1, 2019.
New York City also amended its own Earned Sick Time Act to provide additional job-protected leave for absences relating to family offenses, sexual abuse, stalking, and human trafficking – known as “safe” time. This law contains another amendment, effective July 18, 2018, to require employers to grant schedule changes (temporarily) two times per calendar year for leave reasons covered by the Earned Safe and Sick Time Act.
New York City expanded the definition of sexual orientation and gender under the New York City Human Rights Law
Finally, effective October 15, 2018, the New York City Human Rights Law will require that employers engage in a cooperative dialogue in response to employee requests for reasonable accommodations relating to religious, disability, pregnancy, childbirth or related conditions, or victims of domestic violence needs. The employer’s decision must be put in writing setting forth the accommodations granted or denied.
Potential New Jersey Equal Pay Law Has Plaintiff's Lawyers Licking Their ChopsMarch 29, 2018
Recently, both Houses of New Jersey’s legislature overwhelmingly passed the “Diane P. Allen Equal Pay Act” which is now destined for the Governor’s signature. This sweeping new equal pay legislation amends the New Jersey Law Against Discrimination (“NJLAD”), and makes it unlawful “[f]or an employer to pay any of its employees who is a member of a protected class at a rate of compensation, including benefits, which is less than the rate paid by the employer to employees who are not members of the protected class for substantially similar work, when viewed as a composite of skill, effort and responsibility.” It applies to all of New Jersey’s already protected classes. While there are exceptions for bona fide differences in education and experience, this law will substantially increase the burden on your businesses to make sure these disparities either don’t exist, or if they do – that they are defensible. While the NJLAD already provided for compensatory and punitive damages for employees who are the victims of unlawful employment practices, this amendment allows for treble damages. While this bill is not yet law, we will be watching this legislation closely.
2018 Qualified Plan LimitsNovember 2017
Qualified retirement plans, such as Internal Revenue Code sections 401(k) and 403(b) plans, pension and profit sharing plans, individual retirement accounts (IRAs), and health flexible spending accounts (Health FSAs) are subject to various dollar limits on the amount of contributions that can be made or benefits that may accrue under such arrangements. Most of these dollar limits are adjusted annually by the IRS for changes in the “cost of living.”
For 2018, some of the key dollar limits affecting the above plans, IRAs and Health FSAs are as follows:
2018 Dollar Limit
|1. Elective Deferral Contributions (for 401(k) and 403(b) Plans)||$18,500 ($500 increase from 2017)|
|2. Annual Contribution Limit (for defined contribution plans)||$55,000 ($1,000 increase from 2017)|
|3. Annual Benefit Limit (for defined benefit plans)||$220,000 ($5,000 increase from 2017)|
|4. Annual Compensation Limit (for all qualified retirement plans)||$275,000 ($5,000 increase from 2017)|
|5. Catch-Up Deferral Contributions (for plan participants age 50 or older under 401(k) and 403(b) plans)||$6,000 (no change from 2017)|
|6. Highly Compensated Employee definition-compensation threshold (for nondiscrimination testing under all qualified plans, especially 401(k) and 403(b) plans)||$120,000 (no change from 2017)|
|7. Traditional IRA Contribution Limit (IRA contribution deduction amount subject to income based phase-out)||$5,500 (no change from 2017)|
|8. Catch-Up Traditional IRA Contribution (for individuals age 50 or older)||$1,000 (no change from 2017)|
|9. Health FSA Contributions (via employee salary deferrals)||$2,650 ($50 increase from 2017)|
While the above benefit and contribution limits should be, as applicable, reflected in the plan documents for such plans and accounts, and in the operation of such arrangements, it is important to remember that the elective deferral and, as applicable, related catch-up contribution limits apply on an individual basis. Thus, if you change jobs during calendar year 2018 and participate in two or more employer-provided 401(k) and/or 403(b) plans, you are entitled to a maximum aggregate elective deferral and catch-up contribution limit under all such plans for 2018 of $18,500 in elective deferrals and $6,000 in catch-up contributions (i.e., one set of elective deferral and catch-up contribution limits apply per individual per calendar year).
New York City "Freelance Isn't Free Act" Rules Went into Effect July 24, 2017September 2017
As detailed in our last newsletter, New York City (NYC) passed the “Freelance Isn’t Free Act” which went into effect in May and protects freelance workers and independent contractors in several different ways. Since its implementation, the city has published rules intended to clarify certain requirements of the law. One of the more consequential rules is an expansion of the term “hiring parties” to include “their actual or apparent agent, or any other person acting directly or indirectly on behalf of a hiring party.” The rules also restrict the types of terms that can be in a contract with a freelance worker and provide that the contract may not include waivers of rights under the act, class action waivers, or confidentiality provisions that would inhibit a worker from discussing the contract with NYC agencies.
If you engage freelancers in NYC, you need to comply with this new law.
More Changes to the Federal White Collar Overtime Exemptions are on the WayAugust 2017
Many employers agonized about pay adjustments that were necessary to comply with the new overtime exemption salary basis level under the Federal Fair Labor Standards Act (“FLSA”) that was scheduled to go into effect December 1, 2016. Then a Federal court in Texas stayed enforcement of the new salary basis level and the case is still pending. Now, the U.S. Department of Labor has issued a Request for Information (RFI) from any interested parties on what adjustments, if any, should be made to the salary basis level. For information on the RFI or how you can submit comments, click here.
HR Tip of the Month: Don't be a Dope About Opioids in the WorkplaceJuly 2017
The pernicious opioid epidemic sweeping the nation is well known, and at some point employers may have to deal with an employee who has a substance abuse problem. These situations have implications on everything from workplace drug testing, medical leave laws, and reasonable accommodations to employee assistance programs.
Typically, employers will start to notice signs of opioid abuse including frequent lateness, poor attention to detail and a general drop in performance. Nothing prohibits an employer for terminating an employee for poor performance. However, if the employee comes to the employer before the employer takes any disciplinary action and says they have a substance abuse problem, this changes everything and employers must treat the situation delicately.
Generally, employees who are currently using illegal drugs are not considered “individuals with disabilities.” However, individuals addicted to drugs but who are no longer using and receiving treatment for addiction may be protected by disability discrimination laws. Under New Jersey and Federal medical leave laws, employees are generally entitled to job protection if they seek an unpaid leave to attend rehab. When they return, they may need other accommodations. For example, if an employee requests time off or a revised schedule to attend Narcotics Anonymous meetings or other support groups, those requests need to be considered in good faith by an employer as part of the interactive process to determine reasonable accommodations under New Jersey and Federal law.
These types of employee issues can be riddled with pitfalls for the unknowing employer and sometimes even the knowledgeable employer. These employee issues are rarely, if ever, resolved at once. Remember to be patient, tread lightly, and always consult with legal counsel before taking any action.
HR Tip of the Month: Understand The Benefits of Severance Pay, The Law And How To Do It RightJune 2017
Generally speaking, the law does not require payment of severance to a terminated employee unless the employer has contractually agreed to do so through some form of agreement or policy. As a result, some employers may question why they should offer severance pay. The most common answer is that the severance pay is conditioned upon the terminated employee providing a release of claims. Therefore, an offer of severance can be a cost-effective means for an employer to avoid the time, expense, disruptions and uncertainties that come with a lawsuit or threatened lawsuit. However, the request for a release of claims will trigger certain legal requirements and obligations. For example, under the federal age discrimination law, employees that are 40 years of age or older must be provided 21 days (and sometimes as much as 45 days) to accept the severance offer and 7 days to revoke their acceptance of said offer. Other laws may limit the employee's ability to release certain claims. Employers should consult with their counsel to insure their severance agreements are legally compliant and to insure that they fully understand the impact of the law on said agreements.
Independent Contractor Protection Law In Effect In New York City As Of May 15June 2017
New York City’s Freelance Workers Protection Law went into effect on May 15, 2017. The law covers “freelance workers,” which includes independent contractors, but excludes lawyers, doctors and sales representatives. The law affords freelance workers who will provide an individual or business more than $800.00 in total services the right to a written agreement which must include:
The name and address of the hiring party and the freelance worker;
An itemization of all services the freelance worker will provide;
The value of those services;
The rate and method by which the worker will be compensated; and
The date on which the hiring party must pay the contracted compensation or the mechanism by which such date will be determined (e.g., within twenty days of invoice)
Any individual or business that fails to comply with the law will be subject to the imposition of significant monetary damages.
New York City Passes Ban On Salary History InquiriesJune 2017
Mayor Bill de Blasio has signed an amendment to the New York City Human Rights Law (“NYCHRL”) which makes it unlawful for employers to ask job applicants about their salary history or to rely on salary history during the hiring process. Not only does the law prohibit asking an applicant or the applicant’s current/former employer about the applicant’s salary, it also prohibits the search or review of public records to obtain such information. Employers may still tell applicants about the salary range for the position for which they applied, and nothing prohibits the employer from considering the applicant’s salary history if the applicant first volunteers such information. New York City employers should insure that their hiring processes, practices and forms are modified to comply with this new law. The law goes into effect on October 31, 2017.
HR Tip of the Month: Getting into the Weed(s) with Medical Marijuana in New JerseyMarch 2017
In 2010, New Jersey passed the New Jersey Compassionate Use Medical Marijuana Act (“NJCUMMA”) which protects the users of medical marijuana “from arrest, prosecution, property forfeiture, and criminal and other penalties.” The law specifically provides that employers are not required to “accommodate the medical use of marijuana in . . . [the] workplace,” but is silent about an employer’s duty to accommodate medical marijuana use outside the workplace. While the New Jersey Law Against Discrimination requires an employer make reasonable accommodations to a disabled employee who can perform the essential functions of the job, the law is hazy when it comes to whether those reasonable accommodations include allowing an employee to use medical marijuana outside of the workplace. This dilemma can present some sticky situations for employers. For example, what is required of an employer who maintains a zero tolerance drug policy, but is confronted with an employee who tests positive for marijuana because of their underlying disability? Given this budding area of the law; for now these situations should be addressed on a case by case basis taking into account the employee’s job description, the underlying disability, the circumstances prompting the drug screen, etc.
New York State Direct Deposit and Debit Card Wage Payment Regulations Invalidated and RevokedMarch 2017
On March 7, 2017, New York employers who paid employees via direct deposit or with wage-based debit card were going to be required to comply with strict notice and consent requirements. However, the New York State Industrial Board of Appeals has found that these new regulations exceeded the rulemaking authority of the New York State Department of Labor and instructed that they be revoked. The good news is that for the time being, New York employers are not subject to these new notice and consent restrictions on direct deposits or payroll debit cards for employees.
Appellate Court Reaffirms Importance of Getting Jury Waiver Language RightFebruary 2017
Employers received another reminder that, although employee jury waivers and arbitration agreements are permitted, if they are not drafted properly they will not be enforced by the courts. In Noren v. Heartland Payment Sys., a trial court ruled that the plaintiff/employee had signed an enforceable jury waiver agreement and, after a full non-jury trial before the judge, a verdict was rendered in favor of the defendant/employer. However, the New Jersey Appellate Court reversed the trial court and found that the signed agreement was not specific enough to constitute a valid waiver of a plaintiff’s right to a jury trial on his whistleblower claim. As a result, the verdict in favor of the defendant/employer was overturned and the employer will now have to defend the whistleblower claim a second time before a jury.
Use of New Form 1-9 RequiredFebruary 2017
Form I-9 is used for verifying an individual's identity and authorization to be lawfully employed in the United States. Employers are legally required to timely complete and maintain the form. Effective as of January 21, 2017, employers were required to start using a new Form I-9 prepared by the U.S. Citizenship and Immigration Services (USCIS). The new form is available at: https://www.uscis.gov/i-9
HR Tip of the Month: Harassment: It's Not Just Your Own Employees You Have To Worry AboutFebruary 2017
Most employers understand that they are legally obligated to promptly investigate an employee claim that he/she is being unlawfully harassed by a fellow employee or supervisor based upon some legally protected characteristic (e.g., gender, race, disability, national origin, etc.). Employers must remember, however, that they also are obligated to insure their employees are not subjected to unlawful harassment by third parties that interact with the employees such as clients, patients, vendors, suppliers, customers and independent contractors. It can be particularly problematic for employers where, for example, the employee makes a complaint of harassment against a significant client or someone who refers a significant amount of business to the employer. Although investigating such complaints may be uncomfortable, failure to do so may result in a harassment lawsuit claiming the employer ignored the employee complaint because it valued company profits above its obligation to provide its employees with a workplace free of unlawful harassment. It is not enough to have a written policy that prohibits harassment by third parties. Employers must insure that, in practice, they are actually following that policy.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
HR Tip of the Month: Pregnancy Accommodation Requests. . . Are You Responding Properly?July 29, 2016
An increasing number of states and cities have passed laws providing greater rights to pregnant employees than provided under federal law. For example, New Jersey, New York State, New York City and Philadelphia have all passed laws mandating that employers reasonably accommodate pregnant employees. New Jersey’s law, the Pregnant Workers Fairness Act ("PWFA"), applies to all New Jersey employers regardless of size. The PWFA (and the New York City and Philadelphia laws) list several potential accommodations that employer’s should consider for pregnant employees. Such accommodations include bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring, modified work schedules, and temporary transfers to less strenuous or hazardous work. Employers should review their pregnancy accommodation policies and practices to ensure they are compliant with applicable law.
More information regarding the New York City law can be found at:
More information regarding the Philadelphia law can be found at:
While You Are on Vacation, the U.S. Equal Employment Opportunity Commission is Staying Busy This SummerJune 2016
In a flurry of activity this month, the U.S. Equal Employment Opportunity Commission (“EEOC”) has announced:
Its task force formed in 2015 to study harassment in the workplace has called on employers to “double down” and “reboot” workplace harassment efforts. To read the report and the EEOC’s comments, click here.
It is seeking input on proposed national origin discrimination guidance. To read the draft guidance and the EEOC’s comments about the effort, click here.
Effective July 5, 2016, it has increased its penalties for failure to post notices required by Title VII, the ADA, and GINA by 150%. The fines will increase from $210 to $525 per violation.
New Jersey Supreme Court Rules That Unlawful Marital Status Discrimination Includes Employees Who Are In the Process of Getting DivorcedJune 2016
In another decision by the New Jersey Supreme Court, in Smith v. Millville Rescue Squad, the Court held that “marital status,” which is a protected class under the New Jersey Law Against Discrimination (“LAD”), includes employees who are separated from their spouse and who are in the process of getting a divorce. The employer in this case allegedly terminated an employee because the employer believed the employee would have an “ugly divorce.” This case involved a husband and wife who both worked for the employer, and the husband then had an affair with a volunteer worker. The Court interpreted the “marital status” protected class as including employees who have never married, who are engaged, separated, involved in divorce litigation, or recently widowed. The takeaway for employers from this case is not to let an employee’s separation or pending divorce factor into any employment decisions.
New Jersey Supreme Court Rules Against Shortened Statute of Limitations for Employment Discrimination ClaimsJune 2016
In a long awaited decision by employers, the New Jersey Supreme Court, in Rodriguez v. Raymours Furniture Company, Inc., reversed two lower court decisions and held that an employer in New Jersey cannot shorten the two year statute of limitations for an employee or prospective employee to bring an employment discrimination or other claim under the New Jersey Law Against Discrimination (“LAD”). The employer in the case had a provision in an employment application that required the employee to bring any claims within six months of the date of the alleged adverse employment action. The takeaway from this decision for employers is that any employment agreements or other policies that purport to shorten the LAD’s two year statute of limitations are unenforceable in New Jersey.
HR Tip of the Month: Do You Remember the Last Time You Reviewed Your Company’s Handbook?June 2016
With the New Jersey Supreme Court’s recent decision declaring unlawful an employment application provision shortening the statute of limitations to bring a claim under the Law Against Discrimination (discussed below), it is important for employers to remember that the best designed and intended policies are always subject to judicial interpretation and scrutiny. And a company can never be certain that a policy implemented previously will still be enforceable years later. It is important for companies to evaluate their handbooks and policies annually, and work with their labor and employment attorney when doing so, to ensure the policies are up to date and enforceable.
HR Tip of the Month: The New Overtime Regulations Are Here . . . Are You Prepared?May 2016
On May 18, 2016, the U.S. Department of Labor (“DOL”) announced the publication of the final rule updating the overtime regulations under the Fair Labor Standards Act (“FLSA”). The primary change under the new rule is an increase in the minimum salary that must be paid in order for an employee to qualify as exempt under the FLSA (i.e., not entitled to overtime). Under the old rule, employees serving in a bona fide executive, administrative or professional capacity were deemed exempt from the overtime requirements provided they were paid a salary of at least $455 per week. Under the new rule, employees must be paid a salary of at least $913 a week to be eligible for the same exemption. As a result of the rule changes employees making less than $913 per week ($47,476 per year) will no longer be eligible for the above exemptions and, therefore, must be paid overtime for hours worked over 40 in a workweek.
The new rule takes effect on December 1, 2016. Employers who are paying an exempt employee a salary of less than $913 a week must immediately begin to plan for how they are going to compensate the employee as of December 1, 2016. For example, in lieu of increasing the employee’s salary to $913 a week, the employer can treat the employee as non-exempt and pay overtime for hours worked over 40. Another option for limiting overtime costs is the implementation of a fluctuating workweek. Employers affected by these new regulations should consult with their employment counsel to discuss their options and determine how best to implement the new overtime requirements.
New Federal Trade Secrets Law Signed Into EffectMay 2016
On May 11, 2016, President Obama signed into law the Defend Trade Secrets Act (“DTSA”). Prior to this law, trade secret theft cases were governed by the different laws of each state. The new federal law does not displace state laws, but gives litigants access to federal courts to pursue certain types of cases involving theft of trade secrets. Notwithstanding the passing of the DTSA, employers should still evaluate whether their existing employee confidentiality and intellectual property agreements are sufficient to protect them from employees who attempt to improperly disclose and/or use such information and property.
HR Tip of the Month: Autism Awareness MonthMarch 2016
April is Autism awareness month – but what does that have to do with managing your workforce? If you are asking that question, it is time for a refresher on employees’ intermittent leave rights under the Federal Family and Medical Leave Act (“FMLA”) (and, for New Jersey employers, the New Jersey Family Leave Act (“FLA”)). Under the FMLA, employees may take leave in separate blocks of time due to a single qualifying reason, and the leave may be taken in blocks as little as one hour of time. The basis for this leave may include the need to provide psychological comfort to a covered family member with a serious health condition. For example, if an employee’s child suffers from autism, that employee may be eligible to take intermittent leave to care for his child with little or no advance notice.
Employers that do not understand their employees’ rights in intermittent leave in these types of situations may unintentionally interfere with an employee’s right to job protected intermittent leave. Proper training of the employees tasked with receiving employee leave requests or late call-ins, must be trained to identify when an employee’s particular situation may justify designating intermittent leave under the FMLA. Failure to do so will very likely result in violation of the FMLA and cause an otherwise preventable claim.
The U.S. DOL’s Revised White Collar Overtime Rule is Closer to Being EffectiveMarch 2016
The U.S. Department of Labor’s proposed rule from late 2015, which proposed to raise the annual salary level from $23,660 to just over $50,000 for an employer to be eligible to claim a white collar overtime exemption for an employee, is closer to becoming law. The proposed final rule should be published in the Federal Register in the next few months and, after the proposal presumably overcomes some additional legislative hurdles, it could take effect before summer is here.
HR Tip of the Month: When Taking Adverse Employment Actions, Don’t Forget To Consider The Risk Of A Whistleblower Retaliation ClaimFebruary 2016
Many employers now understand that before they take an adverse employment action (e.g., an action related to a hiring, promotion, raise, bonus or termination), they should evaluate the potential for the employee to assert a claim of discrimination or harassment. However, when taking such actions, employers sometimes fail to consider the issue of whether the employee has engaged in protected “whistleblowing” activity. Although the federal and state whistleblowing laws vary, New Jersey’s law (the Conscientious Employee Protection Act (CEPA)) is particularly broad and prohibits retaliation against employees who disclose, or threaten to disclose, any activity which the employee reasonably believes to be a violation of a law, rule, or regulation (i.e., an actual violation of a law, rule or regulation is not required). By way of example, CEPA claims can be based upon the employee’s incorrect complaint that the employer has violated the wage and hour/overtime laws, engaged in billing improprieties or made misrepresentations to shareholders, investors, clients, patients or customers. In addition, for licensed or certified health care professionals, complaints about improper quality of patient care (even if not true) may be protected. When determining whether to proceed with any particular employment related decision, employers must consider not only whether the employee is in a protected category under the applicable discrimination laws, but whether the employee has made any type of complaint that could give rise to a claim of whistleblower retaliation.
Employer Policy Prohibiting Employee Recordings in the Workplace Found Unlawful by NLRBFebruary 2016
As reported in prior Employment Law Updates, the National Labor Relations Board (NLRB) has been very active in regulating (and finding unlawful) various policies that employers have commonly included in their employee handbooks or elsewhere. Also as previously reported, even employers without any unionized employees must insure that their employment policies and practices are compliant with the National Labor Relations Act (NLRA) and the NLRB’s interpretation of same. In Whole Foods Market, Inc., 363 NLRB No. 87 (2015), the NLRB recently invalidated two policies in Whole Foods’ handbook which prohibited employees from using devices to record events occurring in the workplace. Notwithstanding that such policies are standard in many employee handbooks, the NLRB found that such prohibitions could chill employees in their exercise their rights to, among other things, engage in “concerted activities” for their “mutual aid or protection.” This is yet another reminder that employers should review their current handbooks and insure they are compliant with the NLRA and all other applicable laws.
New Jersey Legislators Seek Constitutional Amendment to Raise Minimum Wage to $15.00 Per HourFebruary 2016
On February 11, 2016, New Jersey State Senate President Steven Sweeney introduced a bill for a ballot referendum which would authorize an amendment to the New Jersey Constitution raising the minimum wage to $15.00 per hour. If approved, the bill would set the minimum wage at $9.00 per hour in 2018, rising by $1.00 each year until it reached $15.00. After reaching $15.00 per hour, the minimum wage would be again tied to the Consumer Price Index.
HR Tip of the Month: Retaliate Against Employees You Say? Not Me.January 2016
By now, most employers are aware of the various protected traits and characteristics that an employer is prohibited from considering in hiring, discipline and termination decisions. But the still lesser understood area – although perhaps more costly and difficult to defend – are retaliation claims. That is, claims by an employee that he was terminated or suffered another adverse employment action because he either opposed or complained about an unlawful employment practice. Federal and state anti-discrimination laws have long contained anti-retaliation provisions yet these claims are still on the rise. According to the U.S. Equal Employment Opportunity Commission (“EEOC”), the issue is so critical that it recently issued new enforcement guidance to employers regarding the breath and scope of the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964 (click here to review the new guidance). It is upon Title VII that most state’s anti-discrimination laws are based, which causes many courts to rely upon the EEOC’s various enforcement guidance documents. So on your 2016 planning list, make sure your company has planned a training session for its managers on best practices when an employee makes a complaint of unlawful discrimination so as to avoid turning a plain vanilla discrimination claim into a retaliation claim.
U.S. Department of Labor Issues New Guidance on the Joint Employer StandardJanuary 2016
The Wage and Hour Division of the U.S. Department of Labor (“DOL”) recently issued its Administrator’s Interpretation of the joint employer standard. This standard, which is a concept that has existed for many years under federal labor laws, is a reminder to employers that, in determining what entity or person is the “employer,” substance over form will prevail and the DOL will aggressively pursue enforcement against any and all joint employers. The Wage and Hour Division enforces laws such as the Fair Labor Standards Act and the Family and Medical Leave Act. To obtain a copy of the new interpretation, click here.
New York State and City – New Regulations on Unlawful Harassment and DiscriminationJanuary 2016
On January 20, 2016, new regulations under the New York State Human Rights Law relating to unlawful discrimination and harassment on the basis of gender identity, transgender status, and gender dysphoria became effective. The new regulations make clear that discrimination or harassment based upon these protected classes is unlawful, in addition to requiring employers to make reasonable accommodations for persons who fall into the gender dysphoria class. To read the regulations or the Division on Human Rights’ comments, click here.
So too the New York City Human Rights Commission recently issued guidance to employers on the broad scope of the meaning of “gender” under the New York City Human Rights Law. To read the new guidance click here.
New Jersey Legislature - Pending Legislation UpdateJanuary 2016
At the end of the last legislative session in New Jersey, there were still several proposed laws of which employers should be aware and that will likely be reintroduced in the next legislative session:
Paid Sick Leave - this proposed law would have required all businesses in New Jersey to provide five to ten paid sick days annually to each employee, accruing at a rate of one hour of sick leave for every thirty hours worked. This bill expired at the end of the legislative session but it will likely be re-introduced in 2016.
The Secure Choice Savings Program Act would automatically enroll workers of employers with 25 or more employees, and whose employers do not offer a 401k plan, into professionally managed retirement accounts at a 3% contribution from the worker. Although the Governor vetoed the bill conditionally, recommending it be a voluntary plan, this bill will likely be re-proposed in 2016.
Credit Check Prohibition - this proposed law would have prohibited employers from requiring or obtaining a credit report for a prospective or current employee with certain exceptions. The bill also provided a private cause of action for an aggrieved employee. The bill expired at the end of the legislative session but employers should expect it to be reintroduced.
In addition to reintroduction of the laws above in 2016, New Jersey employers can expect proposed laws in 2016 prohibiting local governments from requiring paid sick leave and from raising the minimum wage, as well as extending legal protections to interns similar to protections that exist to employees.
HR Tip of the Month: A New Year’s Resolution . . . Implementation of Non-Competition, Non-Solicitation and Company Property AgreementsDecember 2015
As employers prepare for 2016 and the various human resource related notices, trainings and issues they must address, a sometimes overlooked issue is whether they should be requiring employees to sign non-competition, non-solicitation and/or company property agreements. Although such agreements may not be popular with employees, they can be invaluable in protecting the employer’s business and assets. Non-competition agreements prohibit employees from engaging in certain post-employment activities that compete with the employer. Non-solicitation agreements generally prohibit employees from soliciting employees, clients and/or customers upon termination of employment. Company property agreements address such issues as clarifying that developments created (or improved upon) during employment belong to the employer not the employee. Failing to have such agreements in place can cause substantial damage to an employer. Should implementation of such agreements be part of your company’s New Year’s resolution?
NYC Commission on Human Rights issues guidance on the Fair Chance ActDecember 2015
New York City’s Fair Chance Act (“NYCFCA”) took effect on October 27, 2015. The NYCFCA is a form of “Ban the Box” legislation that limits an employer’s right to inquire about an applicant’s criminal history. On November 5, 2015, the NYC Commission on Human Rights (NYCCHR) issued guidance to assist employers in complying with the law. After discussing the legislative intent of the Fair Chance Act that “job seekers must be judged on their merits before their mistakes,” the guidance reiterates that violations of the NYCFCA include, “declaring, printing, or circulating . . . any solicitation, advertisement, or publication for employment that states any limitation or specification regarding criminal history, even if no adverse action follows” and “[m]aking any statement or inquiry [regarding an individual’s criminal history] . . . before a conditional offer of employment, even if no adverse action follows.” Indeed, the guidance seems to suggest that the NYCFCA’s provisions apply not only to prospective employees, but also to existing employees indicating employers must follow the NYCFCA’s requirements even if considering running a background check on an existing employee up for a promotion. Employers in New Jersey are reminded that they already are subject to “Ban the Box” legislation that limits their ability to inquire about criminal history.
A copy of the guidance may be found here: http://www.nyc.gov/html/cchr/downloads/pdf/FCA-InterpretiveGuide.pdf. A copy of the Fair Chance Notice may be found here: http://www.nyc.gov/html/cchr/downloads/pdf/FairChance_Form23-A_distributed.pdf.
New Jersey Gender Equity Pay Notice - Annual Distribution ReminderNovember 2015
New Jersey employers with 50 or more employees, do not forget your annual obligation, by December 31 each year, to serve the New Jersey Gender Equity Notice on each of your employees. Employers must obtain the form acknowledgement and receipt of the notice by each employee within 30 days of distribution. The notice may be distributed by email delivery, through an intranet website exclusively used by employees, or in paper form such as with a paycheck insert. Employers can obtain the New Jersey Department of Labor’s approved notice and acknowledgment form by clicking here.
OSHA - Proposed Update to Voluntary Safety and Health Program Management GuidelinesNovember 2015
For the first time since 1989, the Federal Occupational Safety and Health Administration (OSHA) is seeking comments to its proposed update to its voluntary Safety and Health Program Management Guidelines. These are advisory guidelines that are intended to provide primarily small and medium size businesses best practices to identify risks to worker safety so that injuries can be prevented before they happen. For information from the DOL and to submit comments to the proposal, click here.
New York City Commuter Benefits Law - Effective January 1, 2016November 2015
Effective January 1, 2016, New York City’s Commuter Benefits Law will require all employers in New York City with 20 or more full-time, non-union employees (i.e., those employees working 30 hours per week) to offer full-time employees the opportunity to use pre-tax income to pay for their commute. The new law, administered by the New York City Department of Consumer Affairs (DCA), requires employers to document the offer of participation to employees, which employers may do by having employees sign the “Employer Compliance Form – Offer of Commuter Benefits.” Employers will have a six month grace period until July 1, 2016 to comply with the program before being issued penalties by the DCA. For copies of the form, other information on the law, and information on setting up a commuter benefits program, click here.
HR Tip of the Month: The Company Holiday Party – ‘Tis the season to be naughty?November 2015
It’s that time of year again: when the company brings its entire workforce together; when the entire workforce rubs elbows and has a chance to relax together; and, more often than not, where the company provides ample food and alcoholic beverages to say “thank you” for another year. At its core, the year-end holiday party is intended to be a chance to relax and put work aside for a few hours.
But if you are an owner, management or human resources professional, the company holiday party means – at least in part – something quite different. Prior to the party, employees should be reminded of the company’s anti-harassment policies, especially on topics such as unwanted advances and physical touching. The company must reinforce to the employees that any such anti-harassment policies are in full force and effect at the holiday party. The message to the employees is simple: the company holiday party is not a “get out of jail free” card when it comes to the company’s anti-harassment policies.
HR Tip of the Month: Overtime Exempt? Overtime Non-Exempt? Which one is it?October 2015
It is Halloween time and each year, employers see the various characters and outfits that their employees don and wear to work. It is generally easy to tell if an employee is dressed up as a ghost or goblin, Superman or Batman, a Yankee or a Met, etc. If only it were that simple for employers to have employees wear costumes that clearly show whether they are exempt from overtime or non-exempt from overtime. It is easy to draft a job description that parrots all of the necessary regulatory language to meet one of the common white collar exemptions. But it is another task altogether to ensure that the tasks the employee is being asked to perform match what the written job description provides. The job description must match the particular employee’s actual, day-to-day functions. Many large employers with thousands of employees perform self-audits to detect and correct any potential violations. But small and medium size employers should not pretend that a self-audit is not warranted. This is a potential liability that can be prevented. If your company does not remember the last time it conducted a wage and hour audit, now is the time to plan to do so to ensure compliance with the federal and state wage and hour laws. Failure to do so can result in significant back pay liability, liquidated damages and attorneys’ fees and costs.
Minimum Wage Rates and Overtime Salary Level for 2016 in New Jersey and New YorkOctober 2015
New Jersey has announced that its minimum wage will remain at $8.38/hour for 2016. The salary level requirements for the white collar overtime exemptions (a/k/a executive, administrative, and professional exemptions) in New Jersey, currently at the federal level of $455/week ($23,660/annually), should increase in 2016 to match the proposed increase on the federal level under the Fair Labor Standards Act (FLSA). Under the proposed federal increase, in order to maintain an overtime exemption for most employees under the white collar exemptions, employers should be prepared to pay a salary level likely in the amount of $970/week ($50,440 annually).
New York’s minimum wage will increase to $9.00/hour effective December 31, 2015. New York employers must also be aware that in order to qualify for the executive or administrative white collar overtime exemptions, the salary level is currently $656.25/week ($34,125/annually) and will rise to $675/week ($35,100 annually) effective December 31, 2015. New York employers will also need to comply with the likely federal salary level increase to come in early 2016.
US DOL Will Begin Enforcement of the New Home Care Final Rule on January 1, 2016October 2015
The U.S. Department of Labor (DOL) will begin enforcement of its new Home Care Final rule extending minimum wage and overtime protections under the Federal Fair Labor Standards Act (FLSA) to a broader group of home care workers than under the previous rule. The new rule was initially issued on October 1, 2013 with an effective date of January 1, 2015. But a federal litigation challenging the new rule resulted in one federal court vacating the revised third-party regulation and revised definition of companionship services. The U.S. Court of Appeals for the District of Columbia, however, recently reversed the lower court, resulting in the new rule taking effect on October 13, 2015. The DOL, however, instituted a policy of non-enforcement through the end of 2015. Home care agencies must ensure that no later than January 1, 2016 they are complying with the new rule.
HR Tip of the Month: Employee Performance Reviews... Are You Doing It Right?September 2015
Many employers still make the mistake of either not conducing periodic performance reviews or conducing reviews but not doing them “right”. To be done “right”, performance reviews should not be a once a year proposition. Throughout the year supervisors should be clarifying expectations, setting objectives and goals, providing feedback and documenting each of the foregoing. Employees that are not meeting expectations should be told so in a very direct, but constructive, manner. Conducting performance reviews right will not only help your employees achieve their fullest potential, but perhaps even more important, it will help limit the company’s risk of litigation. Conversely, the risk of discrimination, harassment and retaliation claims are significantly increased where decisions regarding important terms and conditions of employment are not supportable by documented performance reviews (e.g., decisions regarding promotions, raises, bonuses, work assignments, work accommodations, training opportunities, discipline, layoffs and termination).
There is no question that the performance review process can require a significant investment of time and energy, but it is an investment worth making. As your company approaches the year end, it is a good time to evaluate your performance review process and to make any necessary changes to insure it is being done right.
Federal Court of Appeals Reinforces the Critical Importance of Employer Compliance with All FMLA RegulationsSeptember 2015
The Family and Medical Leave Act (the “FMLA”) generally applies to employers with 50 or more employees and guarantees eligible employees 12 weeks of job-protected leave under certain conditions. In Hansler v. Lehigh Valley Hospital Network, a Federal Court of Appeals determined that an employer’s failure to comply with the applicable FMLA regulations can provide the basis for a claim that the employer unlawfully interfered with the employee’s rights under the FMLA. In Hansler, the employer failed to comply with the FMLA regulation which obligated it to: (1) notify the employee that the medical certification submitted by employee’s doctor was insufficient and/or incomplete; (2) state in writing what additional information was necessary to make the certification sufficient or complete; and (3) allow the employee 7 calendar days to cure the deficiency. The aforementioned regulation is simply one of the many regulations promulgated under the FMLA. This decision serves as yet another reminder of the difficult burden placed on employers and the significant risk of litigation that employers face when they are not fully familiar with and complying with all applicable FMLA regulations.
Is Your Employee's On-Call Time Compensable Work Time or Not?August 2015
In today’s business environment, businesses in all industries find it necessary to maintain a 24-7 presence and availability to their clients and customers. Some businesses provide this level of client service by scheduling employees to be “on-call” and pay those employees an agreed upon amount for such time. That amount is normally less than the employee’s regular rate of pay and some employers may also provide additional pay when the employee is actually called into action. But employers may be unaware that under the Federal Fair Labor Standards Act (“FLSA”) regulations, some “on-call” time may actually be considered work time requiring the employer not only to pay the employee’s regular rate of pay for those hours, but time and a half for any such on-call hours that are overtime hours. While on-call policies are legal, it is not enough to simply call the time “on-call” time and assume that the policy complies with the law. Factors that must be considered are what limitations are set on the employee’s freedom during the on-call period and whether the employee is actually working and for how long during the on-call time. Like most FLSA regulations, whether the on-call time is compensable or not as work time is determined on a case-by-case basis. Your company should perform a self-audit of its on-call policies and practices just as it does with many of its other employment policies and practices.
Expanded Joint Employer Standard by the NLRBAugust 2015
The National Labor Relations Board, in Browning Ferris Indus. Co., 362 NLRB No. 187, significantly expanded the meaning of joint employer under the National Labor Relations Act (NLRA). The decision will have significant impact on franchisors, who may now be held to be joint employers of their franchisees' employees for purposes of the NLRA. For those that utilize staffing agencies for some of their workforce, this new standard may also result in a joint employer determination. An appeal is expected but, unless and until a Circuit Court of Appeals overturns the decision, this decision is binding on employers who are subject to the NLRA, which is most private employers in the United States.
HR Tip of the Month: DOL Warning . . . Your Independent Contractors Probably Are EmployeesJuly 2015
On July 15, 2015 the United States Department of Labor (the “DOL”) released new guidance addressing what it believes to be a continuing problem, namely, the improper classification of employees as independent contractors. In reality, the guidance seems more like a warning to employers. The DOL is making clear in no uncertain terms that the definition of employee under the Fair Labor Standards Act (the “FLSA”) is extremely broad. Indeed, the DOL goes so far as to state that “most workers are employees under the FLSA’s broad definitions.” The guidance emphasizes that work that is “an integral part of the employer’s business” can normally only be performed by employees. To obtain a copy of the full guidance issued by the DOL, click here http://www.dol.gov/whd/workers/Misclassification/AI-2015_1.pdf.
New Jersey employers already should be accustomed to the fact that there are only very limited circumstances where they can properly classify workers as independent contractors. As we advised in a prior update, in order for a worker to be considered an independent contractor under New Jersey law the employer must prove all three of the following: (1) the worker has been and will continue to be free from control or direction over the performance of the work he or she is responsible for; (2) such work is either outside the usual course of business for which it is performed, or that it is performed outside of all the places of business of the enterprise for which it is performed; and (3) the worker is customarily engaged in an independently established trade, occupation, profession or business.
The recent DOL guidance reinforces that independent contractor relationships continue to face heavy scrutiny and present a significant area of risk for employers. Companies utilizing independent contractors should carefully evaluate those relationships to insure they are compliant with applicable federal and state law.
New Jersey Supreme Court Unanimously Rules that “Watchdog” Employees Are Entitled to Whistleblower ProtectionsJuly 2015
In a 5-0 decision this month, the New Jersey Supreme Court ruled that “watchdog” employees are entitled to whistleblower protection under the New Jersey Conscientious Employee Protection Act (“CEPA”). Until this decision, employers had been able to successfully argue that CEPA did not apply to “watchdog” employees (i.e., employees whose job is to report potential legal and/or regulatory violations to their employer). In Lippman v. Ethicon, Inc., the New Jersey Supreme Court ruled that this defense is no longer available to employers and that such “watchdog” employees are permitted to maintain a lawsuit under CEPA. This decision is of particular import to employers in heavily regulated fields such as healthcare where it is typical to have employees performing various compliance related duties and functions.
NYC Ban the Box Law PassedJune 2015
In the fall of 2015, New York City employers will need to comply with New York City’s new Fair Chance Act, commonly known as “ban the box.” This law amends the New York City Human Rights Law, which is one of the more employee-friendly anti-discrimination laws in the country. The amendment bars most employers in the five boroughs of New York City from stating in a job advertisement that a conviction or arrest will disqualify an applicant from employment. The amendment also prohibits an employer from inquiring about an arrest or conviction prior to making a conditional job offer. Once the employer learns of an arrest or conviction, it cannot revoke the conditional job offer without first providing the applicant with a written copy of the record on a form to be drafted by the NYC Commission on Human Rights, perform an analysis of whether the arrest or conviction is directly related to the job or poses an unreasonable risk to public safety or welfare, and, finally, provide the applicant with a reasonable time to respond (no less than three days) during which the position must be held open.
US DOL Issues Revised FMLA Leave Designation NoticesJune 2015
The U.S. Department of Labor (DOL) recently amended several FMLA leave related forms that employers rely upon in complying with their FMLA obligations. The revisions add language complying with the Federal Genetic Information Non-Discrimination Act (GINA). The forms that were revised are: the Certification of Health Care Provider for Employee’s Serious Health Condition (Form WH-380-E); Certification of Health Care Provider for Family Member’s Serious Health Condition (Form WH-380-F); Certification for Serious Injury or Illness of a Current Servicemember for Military Family Leave (Form WH-385); and Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (Form WH-385-V).
HR Tip of the Month: Are You Sure Your Company is Complying With Family Leave Laws?June 2015
Although the Federal Family Medical Leave Act (FMLA) has been around for over twenty years, many employers still do not get it right when it comes to their obligations to notify their employees generally of their rights, respond correctly to employee requests for leave, correctly calculate and designate leave to which an employee is entitled, or to reinstate an employee when legally required to do so. And in New Jersey, like several other states, employers are doubly tripped up on the interplay of the New Jersey Family Leave Act (FLA), which in some situations runs concurrent with the federal FMLA yet does not in other situations. Compounding the compliance conundrum in states like New Jersey is the further interaction of the Temporary Disability Benefits Law and the Paid Family Leave Law.
Compliance with these laws - and more importantly working with counsel to ensure your human resources professionals do not get tripped up by the constantly shifting sands in this area - is imperative to avoid claims by employees of failure to provide leave, interference with leave rights, and retaliation for taking leave. Considering that such claims are usually accompanied by a companion discrimination claim, employers must prioritize compliance with the web of federal and state leave laws.
HR Tip of the Month: Llamas, Alpacas and Birds, Oh My! Allowing Animals In The Workplace May Be A Reasonable Accommodation For Disabled EmployeesApril 2015
You may not be in OZ, but employers may sometimes feel they are as they try to navigate the various local, state and federal labor and employment laws. As we have explained in prior Updates, applicable state and federal disability laws obligate employers to engage in an “interactive process” to determine whether they can reasonably accommodate an employee’s disability. Most employers probably appreciate that the obligation to engage in the interactive process would be triggered if faced with a blind applicant or employee that requests permission to be accompanied to work by a service or guide dog. However, what about a request to be allowed to bring an emotional support or therapy animal to the office to help with an anxiety or a stress-related disorder? Some quick research on the internet will tell you that such animals could include dogs, cats, rabbits, birds, guinea pigs, rats, miniature pigs, and yes, even llamas, alpacas, horses and donkeys. Because use of such emotional support animals is a relatively new phenomenon, the law in this area is largely unsettled. This results in little guidance for how employers should respond to such requests. Employers that receive such a request should not simply dismiss the request out of hand. Rather, it is recommended that employers engage in an interactive process with the employee to determine whether or not allowing the animal in the workplace is a reasonable accommodation. After going through the interactive process the employer may ultimately deny the request because it imposes an undue hardship on the business; however, refusing to engage in that process could expose the employer to a legal claim.
OSHA Issues New Guidelines to Prevent Violence in the Workplace for Healthcare WorkersApril 2015
OSHA has issued new guidance in an effort to mitigate the risks healthcare and social workers face from violence in the workplace. OSHA recommends that employers implement a workplace violence prevention program consisting of five essentials: (1) management commitment and employee participation; (2) worksite analysis; (3) hazard prevention and control; (4) safety and health training; and (5) recordkeeping and program evaluation. Each of these five elements is described in greater detail in the guidance. To get more information on the OSHA guidance, click here: https://www.osha.gov/Publications/osha3148.pdf. The new guidance is voluntary, advisory, and informational only. Therefore, the guidance creates no new legal obligations nor does it alter existing OSHA requirements. However, New Jersey health care facilities are reminded that New Jersey previously codified many of the suggestions in the OSHA Guidelines under the New Jersey Violence Prevention in Health Care Facilities Act, N.J. Stat. Ann. § 26:2H-5.17, et seq. Under this law, covered health care facilities (which includes general and special hospitals and nursing homes) are required to establish a violence prevention program for the purpose of protecting healthcare workers and a violence prevention committee to oversee all aspects of the program.
EEOC Issues Proposed Rule Addressing Employer Wellness ProgramsApril 2015
The EEOC recently issued a proposed rule which would apply to employer provided wellness programs. The proposed rule would operate to amend Title I of the Americans with Disabilities Act (“ADA”). The proposed rule provides employers guidance regarding the permissible incentives employers may use to encourage employee participation in wellness programs. The proposed rule would only apply to wellness programs that include medical or disability-related inquiries. The proposed rule restricts incentives employers may use as part of voluntary wellness programs, imposes notice requirements and examines confidentiality issues related to information obtained from employees as part of these programs. Although the rule is not yet in effect and compliance is not yet required, employers are reminded that some of the requirements in the rule are already required under the law. For example, employers should make sure they do not: (1) require employees to participate in a wellness program; (2) deny health insurance to employees who do not participate; and (3) take any adverse employment action or retaliate against employees who do not participate in wellness programs or who do not achieve certain health outcomes. To get more information on the proposed rule, click here: http://www.eeoc.gov/laws/regulations/facts_nprm_wellness.cfm.
Trenton Paid Sick Leave Ordinance Restricted to City LimitsApril 2015
After a court challenge to the Trenton paid sick leave ordinance, counsel for the City of Trenton recently stipulated that the ordinance would only apply to businesses located within the City of Trenton itself with employees who physically work more than 80 hours per year in the city. The ordinance, which took effect on March 4, 2015, provides both full-time and part-time workers in the City one hour of paid sick time for every 30 hours worked. A business within the Trenton city limits that employs 10 or more employees must provide up to five paid sick days per year. A business with less than 10 employees must provide up to three paid sick days per year. Under the ordinance, all employees who accrue sick days during a year are allowed to carry over a maximum of 40 hours each year, regardless of the size of the employer.
HR Tip of the Month: New Guidance on Employer Handbook PoliciesMarch 2015
On March 19, 2015 the Office of General Counsel for the National Labor Relations Board (NLRB) issued Memorandum GC-15-04. In the report, the General Counsel provides examples of rules and policies that have been found to be lawful or unlawful in areas of confidentiality, restrictions on employee conduct toward their employers, restrictions on employee conduct as it relates to other employees, restrictions on employee communications with third parties, and rules restricting employee photography, recording, and electronic devices. These rules apply to most private sector employers in the United States, regardless of whether the workforce is unionized. It is imperative that employers ensure their handbook is up to date and compliance with this guidance or risk facing an unfair labor practice charge. Obtain a copy of this new Memorandum by clicking here.
Proposed Regulations Issued under New Jersey’s “Ban the Box” LawMarch 2015
The New Jersey Department of Labor and Workforce Development (“DOL”) has issued proposed regulations under the Opportunity to Compete Act, commonly known as the “Ban the Box” law. This law prohibits employers from, at the initial application process, making any inquiry regarding the applicant’s criminal record. A public hearing will be held on April 7, 2015 at the DOL’s office in Trenton, New Jersey and written comments may be submitted by May 15, 2015. To review the regulations or obtain details on the public hearing or submission of written comments, click here.
Order by Acting Labor Commissioner on Tipping Practices in the Hospitality Industry in New York State and CityMarch 2015
Employers in New York in the hospitality industry who have tipped employees need to be prepared for significant changes to tipping pay practices. The Acting Labor Commissioner has issued an order changing the current Hospitality Industry Wage Order in the following areas: creating uniform tip amounts and criteria for all tipped workers so that the same rate applies to food service employees, service employees, and service employees in resort hotels; increasing the tipped cash wage amount to $7.50/hour effective December 31, 2015; providing New York City tipped workers an additional $1.00/hour in the event of a state-wide minimum wage increase; and rejecting a recommendation for some large employers to have a larger tip allowance. To obtain a copy of the Order, which is scheduled to take effect shortly, click here.
Definition of “Spouse” Under the FMLA Now Includes Same-Sex Spouses No Matter Where They LiveMarch 2015
The U.S. Department of Labor’s (“DOL”) new rule broadening the definition of “spouse” under the federal Family and Medical Leave Act (“FMLA”) is effective March 27, 2015. The new rule amends the definition of “spouse” under the FMLA such that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live. New Jersey had previously recognized same-sex marriage and civil union partners under the New Jersey Family Leave Act (“NJFLA”). Employers can now be confident that both FMLA and NJFLA time periods may run concurrently with respect to same-sex spouses, i.e. an employee caring for a same-sex spouse may only take 12 total weeks of leave, provided the leave is for an event covered by both laws.