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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.

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New Jersey's Minimum Wage Set to IncreaseOctober 2016

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

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

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

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

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

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

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HR Tip of the Month: 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. 

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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. 

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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.

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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.

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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.

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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. 

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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.

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