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.
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.
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:
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.
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.