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.
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: 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.
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: 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.
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.