New Jersey Enacts Paid Sick Leave Act Effective October 29, 2018

Posted by on May 8, 2018 in Uncategorized

Written by: Susan L. Swatski

On May 2, 2018, New Jersey became the tenth state to enact a mandatory paid sick leave law. The law goes into effect on October 29, 2018 and will require all New Jersey employers, regardless of size, to provide up to 40 hours of paid sick leave per year. The Act preempts and moots all municipal ordinances regarding paid sick time. Current employees will begin accruing sick time on October 29, 2018, so employers will need to have their revised leave policies in place in short order. Employees hired after October 29, 2018, will begin accruing sick time on their first day of employment. An employee can use accrued sick time after the 120th day of his/her first day of employment for the following reasons:

  • diagnosis, care or treatment of or recovery from an employee’s own mental or physical illness, including preventive medical care;
  • aid or care for a covered family member during diagnosis, care or treatment of or recovery from the family member’s mental or physical illness, including preventive medical care;
  • circumstances related to an employee’s or his/her family member’s status as a victim of domestic or sexual violence;
  • closure of an employee’s workplace or of a child’s school because of a public official’s order; or,
  • time to attend a meeting required by school staff to discuss a child’s health.

Employers may not require an employee to find a replacement to cover the employee’s absence. The payment amount is based on the same rate of pay that the employee earns at the time of the payment, not when the time was accrued.

Under the Act, employers must designate any period of 12 consecutive months as a “benefit year.”  In each benefit year, an employee may accrue up to 40 hours of sick time at a rate of one hour for every 30 hours worked. An employer may “frontload” the 40 hours of sick time at the beginning of the benefit year, but employers are not required to permit employees to use more than 40 hours of sick leave in a benefit year. Employees are permitted to carry over a maximum of 40 hours of accrued sick time. Employers may, at their discretion, buy out an employee’s unused accrued sick time in the month before the end of the benefit year. An employee has the option to either have the entire amount of unused sick time paid out or 50 percent of the time. The Act does not require the employer to pay employees for unused accrued sick leave upon separation from employment. Employers with existing paid time off, personal days, vacation days and sick-day policies may use those policies to comply with the Act provided employees can use the time off as required by the Act.

Employers must post a notification of employees’ rights under the Act and provide employees with a written copy of the notice within 30 days after the Department of Labor has issued a model notice and each time thereafter when an employee is hired. Employers also must retain records documenting paid sick time taken by employees for a period of five years.

The Act provides for a private right of action that includes, among other remedies, liquidated damages in an amount equal to the actual damages sustained by the employee. The Act also contains anti-retaliation provisions that include a rebuttable presumption that an employer’s actions are unlawful if the employer takes adverse action against an employee within 90 days of the employee engaging in activity protected under the Act. Protected activities include filing a complaint with the Department of Labor, cooperating with an investigation, opposing policies and practices that are unlawful under the Act or informing other individuals of their rights under the Act.

Your business likely will be impacted by the Paid Sick Leave Act. You should start preparing now to ensure your sick leave, paid time off and vacation policies are compliant with the Act. You should also include training on the retaliation provisions of the Act for managers and supervisors.

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NJ Employment Law Alert – Equal Pay Act Amends NJ LAD

Posted by on Apr 30, 2018 in Uncategorized

By: Jeffrey H. Schervone

On April 24, 2018, New Jersey Governor Phil Murphy signed into law the Diane B. Allen Equal Pay Act (the “Act”), which amends the New Jersey Law Against Discrimination (“LAD”). A copy of the bill’s text is available here.

Under the amended LAD, it is an unlawful employment practice for an employer to pay any employee who is a member of a protected class less than the rate paid to other employees who are not members of that protected class for “substantially similar work when viewed as a composite of skill, effort and responsibility.” Note that the Act is much broader than just remediating gender pay equity. Instead, the Act expands equal pay on the basis of membership in the protected class which includes, inter alia, race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy or breastfeeding, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or liability for service in the armed forces.

The Act does, however, carve out limited exceptions concerning when an employer may pay a different rate of compensation to members of the protected class, including if the pay differential is due to a seniority or merit based system.  An employer may also pay different rates to individuals if they can demonstrate each of the following:

1. That the differential is based on one or more legitimate, bona fide factors other than the characteristics of members of the protected class, such as training, education or experience, or the quantity or quality of production;

2. That the factor or factors are not based on, and do not perpetuate differential in compensation based on sex or any other characteristic of members of a protected class;

3. That each of the factors is applied reasonably;

4. That one or more of the factors account for the entire wage differential; and

5. That the factors are job-related with respect to the position in question and based on a legitimate business necessity.

Importantly, the Act also prohibits retaliation against an employee who inquires about pay information with other employees, lawyers in connection with legal advice, or government agencies.  The Act goes even farther in prohibiting waivers of such inquiries as a condition of employment.

Regarding damages, the lookback period for ‘unequal’ back pay is 6 years, and “if a jury determines that an employer is guilty of an unlawful employment practice… the judge shall award three times any monetary damages to the person or persons aggrieved by the violation.”

The law goes into effect on July 1, 2018.  Employers should carefully review and audit their policies, procedures, handbooks to ensure compliance.

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SPRING CLEANING: IT’S TIME TO DUST OFF AND UPDATE YOUR EMPLOYEE HANDBOOK

Posted by on May 16, 2017 in Uncategorized

Written by: Katrina M. Homel

Is your employment handbook up-to-date? Employment law is an ever-changing field, and community associations, management companies, and employers of all sizes will avoid a later headache by taking the time to review and revise their handbook to reflect recent updates in employment law.

Employee handbooks set forth an employer’s policies and procedures so that there are clear expectations for the employment relationship between the employer and employee. The handbook is not an implied contract, nor is it intended to be comprehensive of every possible situation that may arise in the workplace, though it sets expectations that guide conduct in new situations that may arise. Handbooks address the core terms and conditions of employment including, for example, the nature of the employment relationship, employees’ conduct in the workplace, the employer’s response to misconduct, management of pay and benefits, and general operating procedures. An employer should require employees to review the handbook and sign a statement that they received and agree to read the handbook, that the handbook is not a contract, that it is subject to change at any time at the employer’s discretion, and, importantly, that the employee agrees to follow policies and procedures set forth in the handbook.

Community associations, management companies, and other employers should review their handbook to ensure that they are current and not operating out of compliance with the law. Recent developments in employment law include, but are not limited to, developments in the areas of social media, wage and hour, whistleblower protection, employee privacy, antidiscrimination, disability accommodations, and labor relations. Having an up-to-date handbook will go a long way to protecting the employer and maintaining a smoothly run workforce. Employers with handbooks already in place should revisit the standards and criteria established in the handbook and revise them to reflect current laws and employment practices. Employers without handbooks are urged to consider investing in the protections that a handbook can provide.

For management and lower-level employees, an employee handbook is a helpful resource to answer many questions that may arise in the workplace. For employers, a handbook provides numerous benefits in addressing employee situations. Even small employers with just a few employees are subject to many employment laws, and will benefit from having a handbook that creates consistent expectations for staff.

Clearly written and enforced policies may reduce the risk of liability and will help employers guard against claims of discrimination and unfair treatment.  For example, an employer who can point to a clear anti-harassment policy which has been read and acknowledged by all employees and which is consistently enforced has demonstrated a commitment to legal compliance and can show the steps it has taken to protect its employees and business.

An employee handbook also provides community associations, management companies, and other employers a concrete mechanism to hold employees accountable to follow the employer’s policies. Where policies are clearly communicated in the handbook, an employer can point to its policies in counseling and, if appropriate, disciplining an employee who has failed to meet those expectations.

Additionally, having a handbook in place may be helpful to an employer when it is time for an employee’s performance review, such as in situations where an employee’s conduct is impacting his or her job performance. For example, if an employer has set clear expectations in its handbook regarding lateness and attendance, and an employee’s lateness is impacting his or her job performance, when the time comes around for the employee’s performance review, the employer can point to its policy regarding lateness and attendance during its discussions with the employee about performance.

Having and maintaining an up-to-date employment handbook sets clear expectations for employees so that community associations, management companies, and other employers may operate an efficient and productive workplace, and provides protections for an employer should a workplace conflict arise.

This article is for informational purposes only and does not constitute legal advice or a legal opinion. If you have questions about recent developments in employment law and their impact on your employment practices and handbook, please contact us.  Hill Wallack LLP’s Employment & Labor Law attorneys have vast experience in counseling employers, including, but not limited to, regarding their policies and handbooks.

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Federal Court Permits Employer to Fire Transgender Employee

Posted by on Sep 6, 2016 in Gender Discrimination, Supreme Court, Title VII

In 2014, the Supreme Court of the United States ruled in Burwell v. Hobby Lobby, 134 S.Ct. 2751 (2014), that closely-held corporations are exempt from laws to which its owners object on religious grounds, if there is a less restrictive means of furthering the law’s interest. In Burwell, David and Barbara Green owned a family business, Hobby Lobby, and objected to provisions within the Patient Protection and Affordable Care Act (“PPACA”), more commonly known as the “Affordable Care Act” or “Obamacare,” that would have required them to pay for employee insurance coverage that provided access to contraceptives. This controversial decision was hailed by some as a victory for religious freedom, and simultaneously condemned by others as expanding previous Supreme Court decisions that treat corporations like people, notably, Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

More recently, the Honorable Sean F. Cox, U.S.D.J. of the United States District Court for the Eastern District of Michigan, ruled on the defendant’s motion for summary judgment in Equal Employment Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc., 2016 WL 4396083 (E.D. Mich. Aug. 18, 2016), holding that the Supreme Court’s decision in Burwell meant a closely-held corporation could fire a transgender employee who, while transitioning from male to female, wished to begin dressing as a female. Notably, Judge Cox interpreted the Religious Freedom Restoration Act of 1993 (“RFRA”), in accordance with the Burwell decision, to mean that the sincerely held religious beliefs of a corporation provide an exemption to state and federal law unless the government can show a need to advance a compelling interest and that the requested means is the least-restrictive method of protecting such an interest. Accordingly, Judge Cox held that employers could terminate employees for the reasons described below.

In Harris, the EEOC argued that an employee’s right to not be discriminated against on the basis of transgender status or gender identity was protected by Title VII of the Civil Rights Act of 1964, which prohibits employers from discharging or otherwise discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment “because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Judge Cox stated that enforcement of Title VII would impose a substantial burden on the corporation’s ability to conduct business in accordance with its sincerely held religious beliefs, in violation of RFRA, and the EEOC’s demand of allowing the employee to wear women’s attire was not the least-restrictive method of protecting the employee’s interest in not being discriminated against.

Notably, Judge Cox pointed out the employer’s mission statement, which points to “its highest priority” as “honor[ing] God in all that we do as a company and as individuals,” as evidence of their sincerely held religious beliefs. In contrast, Judge Cox noted the employee’s desire to dress “in a stereotypical feminine manner (wearing a skirt-suit),” which would allow for gender expression, and that the EEOC refused to consider whether the employer would be willing to accept gender-neutral attire that still allowed for gender expression. As a suggestion, Judge Cox proposed a “dark-colored suit, consisting of matching business jacket and pants, but without a neck tie.”

Given Citizens United, Burwell, and now Harris, there appears to be a trend of federal case law indicating that corporations may be treated like individuals, and that the religious beliefs of a closely-held corporation’s owners can override federal protections against discrimination. As it appears likely that the EEOC will appeal this decision to the United States Court of Appeals for the Sixth Circuit, both employers and employees should continue to track its progress through the legal system.

Hill Wallack employment law attorneys are available to help navigate issues such as these and how they may affect clients in New Jersey, New York, and Pennsylvania.

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NLRB Changes Course, Rules that Student Assistants at Private Universities Have Right to Unionize

Posted by on Sep 2, 2016 in NLRB

The National Labor Relations Board (“NLRB” or the “Board”) recently ruled in a 3-1 decision that student assistants at private colleges and universities “who have a common-law employment relationship with their university” are “employees” under the National Labor Relations Act (the “Act”), 29 U.S.C. § 151 et seq. As a result, the decision, Trustees of Columbia University in the City of New York and Graduate Workers of Columbia-GWC, UAW, provides those qualifying student assistants at private colleges and universities, which are generally subject to NLRB jurisdiction, with the right to organize and collectively bargain with their university employers.

The Board specifically found in the Trustees of Columbia University decision, issued on August 23, 2016, that Columbia University’s “Instructional Officers” (including Teaching Fellows at the graduate level, Teaching Assistants at the graduate and/or master’s level, Preceptors at the graduate level, Readers/Graders at the master’s level, and Course Assistants) and “Research Officers” (i.e., research assistants) fell into the category of “employees” under the Act. Furthermore, the Board determined that a student assistant bargaining unit consisting of “graduate students, terminal Master’s degree students, and undergraduate students,” which was requested by the petitioner, was appropriate. Moreover, none of the student assistant categories at issue in the case were temporary employees that were excluded from coverage under the Act.

The Trustees of Columbia University decision, issued on August 23, 2016, reverses the Board’s decision in Brown University and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW AFL-CIO, 342 N.L.R.B. 483 (2004), which held that student assistants were not employees under the Act and therefore did not have the right to unionize.  In determining that the student assistants were not employees, the Brown University decision had found that student assistants were not primarily employees but instead had an “educational relationship” with the employer.

In examining its Brown University decision, the Board determined that it erred in that decision by focusing “on whether some other relationship between the employee and the employer is the primary one . . . .”  Focusing on the existence of another relationship in addition to the employment relationship, the Board found, was not supported by the Act.[1] In looking at the broad language of the Act, the Board stated:

“It seems clear to us, then, that the Act’s text supports the conclusion that student assistants who are common-law employees are covered by the Act, unless compelling statutory and policy considerations require an exception.”

In addressing the arguments raised against a finding that the student assistants are employees, the Board observed that federal labor policy is generally encouraging of collective bargaining, and that allowing student assistants to choose whether to unionize would further the purpose of the Act.  The Board also noted that just because there may be issues particular to employment in an academic setting, such issues do not prevent the application of the Act to student assistants, contrary to the Board’s findings in the Brown University decision. Moreover, permitting student assistants to unionize would not infringe upon academic freedom because the parties could resolve these issues through collective bargaining, and there are limits, defined by the Board, on what constitutes the mandatory subject of bargaining. Additionally, noted the Board, evidence that student assistant unionization is harmful to the educational process and student-faculty relationship is dubious at best, and bargaining between student assistant unions and universities has been occurring at public universities without resulting in significant harm.

The Board also rejected the contention that student assistants should not be permitted to unionize because “student assistants have finite terms and because the academic world may experience a fast pace of development in fields of study,” and the Board may take a relatively long period to time to make a determination on a dispute. On these issues, the Board stated: “The alternative—to deny coverage because of effect of procedural delays— would seem to countenance the denial of the Act’s overage to large groups of employees whose tenures are short or industries where there is a rapid pace of change.”

 “Finding “no compelling reason—in theory or in practice—to conclude that collective bargaining by student assistants cannot be viable or that it would seriously interfere with higher education,” and that there are no conflicting federal statutes, the Board determined that “[a]ccordingly, we overrule Brown University and hold that student assistants who have a common-law employment relationship with their university are statutory employees entitled to the protections of the Act.”

The case was remanded to the regional director to take appropriate action per the Board’s decision that the petitioning student assistants group qualified as employees and could move to organize under the Act. It should be noted that the parties may appeal this decision to the U.S. Court of Appeals.

In light of this decision, private colleges and universities employing student assistants covered by the Act should be aware that student assistants may be soon engaging in formal organizing efforts. As a result, these colleges and universities may need to be prepared to quickly respond to such efforts. We suggest that those entities consult with a labor attorney to determine their rights and obligations with respect to student assistant union activities.

Read the Trustees of Columbia University decision here at: https://assets.documentcloud.org/documents/3033549/Columbia-NLRB.pdf.

[1] Section 2(3) of the Act, 29 U.S.C. § 152(3), states: The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment . . . or by any other person who is not an employer as herein defined.
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Minimum Wage and Major League Baseball’s Fair Labor Standards Act Exemption

Posted by on Aug 2, 2016 in FLSA

On June 27, 2016, U.S. Congresswoman Cheri Bustos (D-Ill.) and U.S. Congressman Brett Guthrie (R-Ky.) introduced H.R. 5580, where it was referred to the House Committee on Education and the Workforce, stylized as the “Save America’s Pastime Act.” The bill was intended to amend the Fair Labor Standards Act (“FLSA”) to exempt minor league baseball players from the minimum wage. While Congresswoman Bustos H.R. 5580 quickly withdrew her support after public outcry, the bill is still in committee and serves as an important reminder of how little minor league baseball players are paid and the expansive legal protections afforded to the baseball industry.

As an initial matter, the federal minimum wage is currently $7.25 per hour. While Major League Baseball (“MLB”) profits are booming, currently over $9.5 billion annually, minor league players typically only earn between $1,150 and $2,700 per month, and only during the season. With players often clocking fifty-to-seventy hour weeks, and no overtime pay, a rookie minor league player can earn as little as $4.10 per hour, and a multi-year veteran approximately $13.50 per hour. In contrast, the minimum salary for a major league player is $500,000 per year.

Some minor league players are attempting to strike back at the industry. In Senne, et al. v. Office of the Commissioner of Baseball, et al., 3:14-cv-00608, filed in early 2014, several former baseball players are seeking certification for a nation-wide class-action lawsuit alleging that the minor league baseball system violates the FLSA by denying players a minimum wage and overtime. The case is currently pending before the United States District Court for the Northern District of California. MLB claims minor league players are not bound by the FLSA due to an exemption for seasonal and recreational employers. The previously-proposed H.R. 5580 would specifically clarify and exempt the minor league system from any minimum wage concerns.

Those involved in the baseball industry, as well as those who just love the game of baseball, should be mindful of the status of this bill. Should H.R. 5580, or a similar bill, be signed into law, there will be far-reaching legal consequences. These types of bills tell us what is on the minds of legislators and signals yet another effort to expand the FLSA and to weaken its exceptions. Hill Wallack employment law attorneys are available to help navigate issues such as these and how they may affect clients in New Jersey, New York, and Pennsylvania.

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Governor Christie Vetoes Amendment to New Jersey Law Against Discrimination

Posted by on Jun 23, 2016 in Gender Discrimination, Racial Discrimination, Uncategorized

On May 2, 2016, New Jersey Governor Chris Christie conditionally vetoed Senate Bill 992 (“S. 992”), which was intended to amend the New Jersey Law Against Discrimination (“NJ LAD”) to make wage disparities among similarly situated employees expressly unlawful. While S. 992 is aimed at reducing gendered or race-based pay disparity, Governor Christie stated that the bill would make New Jersey “very business unfriendly,” and criticized several aspects, including:

  1. Restarting the statute of limitations each time an employee receives unequal pay, and allowing for back pay for the entire period of continuous violation, which is currently capped at two years and is identical to the federal Lily Ledbetter Fair Pay Act of 2009;
  2. Prohibiting employers from requiring employees to waive or voluntarily limit their equal pay protections;
  3. Allowing treble damages upon any employer found to be in violation;
  4. Protecting employees from retaliation if they disclose their salary to a co-worker; and
  5. Shifting responsibility and burden of proof to the employer to justify pay differences, which would be permitted only based on seniority, merit, or objective factors such as training, experience, education, and productivity.

Additionally, S. 992 is substantially similar to the California Fair Pay Act, which was adopted last year. Governor Christie has made several recommendations, with which he would revoke his veto and sign a revised version of S. 992. Some of these recommendations include eliminating fact-based evaluation in alleged discrimination cases as well as treble damages. Governor Christie also would like the revised version to limit back pay to two years, as opposed to the proposed unlimited amount. While S. 992 passed the State Senate by a vote of 28 to 4, and the General Assembly by a vote of 54 to 14 to 6, it is unclear whether the legislature will attempt to override Governor Christie’s veto, which requires a two-thirds margin.

Employers should be mindful of the status of this bill, along with others like it, as there will be far-reaching consequences should one be successful in being signed into law. Hill Wallack employment law attorneys are available to help navigate issues such as these and how they may affect clients in New Jersey, New York, and Pennsylvania.

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