July 2017 Employment Law Update
HR TIP OF THE MONTH
Don’t be a Dope About Opioids in the Workplace
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.
More Changes to the Federal White Collar Overtime Exemptions are on the Way
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.
New York City “Freelance Isn’t Free Act” Rules Went into Effect July 24, 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.