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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Mark Your Calendars: New “White Collar” Employee Overtime Rule Goes Into Effect December 1st

Posted by on Jun 1, 2016 in Uncategorized

Written by: Felicity S. Hanks, Esq.

After almost two years in the works, the Department of Labor has finally released its Final Rule addressing overtime exemptions under the Fair Labor Standards Act (“FLSA”). The Final Rule, officially published on May 23, 2016, governs new standards for the application of the white collar exemptions to FLSA overtime rules, which apply primarily to employees performing executive, administrative, and professional functions for their employer. The language of the Final Rule, “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees,” is published in the Federal Register and available at https://www.federalregister.gov/articles/2016/05/23/2016-11754/defining-and-delimiting-the-exemptions-for-executive-administrative-professional-outside-sales-and. The Final Rule becomes effective December 1, 2016, thus providing employers with approximately six months to get their proverbial ducks in a row.

By way of brief background, the FLSA requires that employees are entitled to overtime pay (time and one-half) for all time worked in excess of forty (40) hours per week.  The FLSA includes several exemptions which alleviate employees performing certain duties from receiving overtime pay.  Exemptions for employees performing qualifying executive, administrative, and professional job duties are typically referred to as the “white collar exemptions.” Federal law governs what constitutes sufficient duties to fall within one of these exemption categories and sets forth specific, multi-factor tests containing performance requirements that must be met in order for the employee to be considered exempt.  Under the existing law, if an employee’s primary job duties fit into one of these exemption categories and they are paid on a salary basis earning a salary of at least $455/week ($23,660 annualized), their employer is not required to pay them overtime wages for hours exceeding forty (40) hours per week.

The Final Rule changes a few provisions under the law, but this Alert will focus on the most significant changes, which are related to minimum salary levels. Under the Final Rule, the minimum salary level required for an employee to be considered exempt from the FLSA overtime provisions increases from $455/week ($23,660 annually for a full-year worker) to $913/week ($47,476 annually).  The Department of Labor tethered the minimum salary level to equal the 40th percentile of earnings of full-time salaried workers from the lowest-wage Census Region.  Relevant to the increase in salary level, starting in 2020, the minimum salary level will increase automatically every three years consistent with that statistic. Importantly, the Department clarified that bonuses and incentive payments can be applied to satisfy up to ten percent of the new salary level.

The salary level increase has been the most concerning and most awaited provision of the final rule.  Although the Final Rule included a minimum salary level slightly less than the level initially proposed by the Department, the salary level has doubled from the prior rule.  Many employees who have been treated by their employers as exempt under the current rules may be  in danger of losing their exempt classification due to salary level.  Employees who do not earn a salary of $913/week ($47,476 annually) will be entitled to overtime pay when the Final Rule becomes effective.

The other key salary change under the Final Rule is to the salary level for the Highly Compensated Employee (“HCE”) exemption.  Under the present rule, an employee is considered exempt from overtime provisions if s/he earns total annual compensation of $100,000.00 or more (including at least $455/week paid on a salary basis), performs primary duties of office or non-manual work, and customarily and regularly performs at least one of the exempt duties or responsibilities of an exempt executive, administrative or professional employee.  The HCE rule recognizes that if an employee earns a high salary they only need to meet any minimum duty under the white collar exemptions in order to render them ineligible for overtime pay. Where a highly paid employee can satisfy the full duties tests they will be exempt anyway, so the HCE exemption essentially provides a short cut permitting employers to satisfy a lesser standard to uphold an exemption.  Under the Final Rule, the total annual compensation requirement for a HCE is increased to $134,004.00, while the minimal duties tests remain the same.  While this rule change may affect fewer employees overall than the standard salary increase described above, it is important to mention as under the new rule, if an employee’s duties do not satisfy the full statutory tests, they may be entitled to overtime, even though they may make a substantial wage.  It is not until the employee earns $134,004.00 that the employer can rely on the shortened duties test as grounds for classifying the employee as exempt.

So what should an employer do now?

Many employers have been anticipating the issuance of the Final Rule, so while it may come as a disappointment; it should come as no surprise.  However, if an employer has not already taken action in anticipating the Final Rule, it should not wait any longer to evaluate whether it employs workers who are presently considered exempt, but would not be considered exempt under the Final Rule.  As the Department did not revise the duties tests for determining whether the primary duties that an employee performs place them within a white collar exemption, so the key inquiries are related to salary: Are there exempt employees making less than the new salary level of $913/week ($47,476 annually); and are there workers earning between $100,000 and $134,004 whose exempt status is reliant on satisfying the minimum duties test?   If the answers to these questions are “yes” then the employer must take action to comply with the Final Rule.

The Final Rule does not require that employees falling below the salary level be transferred to hourly status.  Rather, the Final Rule would require that those employees get paid overtime for qualifying hours.  If an employer has employees that almost never work more than 40 hours/week, but make less than $47,476/year, it may suffice to leave those employees pay structure as it stands, but insure that there is a mechanism to track whether they do work more than 40 hours so that they can be paid their overtime rate for that time.  In some instances where employees regularly work more than 40 hours/week it may be simpler and more cost effective for the employer to increase the employee’s salary to meet the new standard level.  In others, employers may review their employees’ exempt statuses completely and use the Final Rule change as a spring board for reclassifying employees, restructuring offices, or re-balancing workloads so that employees do not work more than 40 hours/week. With respect to HCE’s, an employer should re-evaluate and assess whether the employee’s duties would render them exempt under the full white collar exemption tests.  If not, the employer must similarly determine a proper course of action to ensure its compliance with the Final Rule.  We recommend that all employers take note of the Final Rule and promptly evaluate whether their workforce will be affected by the salary level increases.

This article is for informational purposes only and does not constitute legal advice or a legal opinion.  Affected employers should seek legal guidance and advice in reviewing their obligations under the Final Rule.  Hill Wallack LLP’s Labor and Employment attorneys have vast experience in counseling employers on wage and hour obligations and are available to discuss your employees and wage and hour compliance.

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