Norris, McLaughlin & Marcus

Expert Medical Evidence Needed To Establish The Extent Of A Person’s Disability

New Jersey’s Appellate Division rang in the New Year with a very interesting decision involving a disability discrimination claim under the state Law Against Discrimination. In Wojtkowiak v. NJ Motor Vehicle Commission, et. al., 2014 WL 7403848, the Complainant claimed she suffered from agoraphobia, which prevented her from going to the MVC to be photographed for the renewal of her driver’s license. When the MVC denied her request that she be excused from appearing in person to renew her license, she filed a claim with the Division on Civil Rights alleging that the MVC discriminated against her based on her disability.

The MVC’s license renewal process requires a digital photograph that is transferred to the driver’s license. The process stores images and provides information to various databases. The camera system itself is highly sensitive and is integrated with security features, making the photograph used for the license resistant to forgery and substitution.

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Department Of Labor Anticipates Increasing The Number Of White-Collar Employees Entitled To Overtime Pay In 2015

Under current, longstanding federal law, certain employees are considered “exempt” and are not entitled to overtime compensation. An exempt employee must be paid on a salaried basis and since 2004, the minimum salary required for an exemption has been $455/week, $23,660/year.

In March 2013, President Obama ordered the Department of Labor to “propose revisions to modernize and streamline the existing overtime regulations” with the specific goal of increasing the number of white-collar employees who will be entitled to overtime pay. The DOL has just announced that it anticipates publishing its proposed Rule implementing these changes by the end of February 2015.

In light of the Department of Labor’s announcement that it anticipates publishing its proposed rule implementing changes to increase the number of white-collar employees entitled to overtime pay, our Labor & Employment Department put together a pro-active compliance program that we have offered to the firm’s clients and friends. For more information on the program, click here.

New Jersey Employers Prepare for 2015

With 2014 at an end, it is as important as ever for employers to ready their businesses for the new year.  We have compiled some of the items New Jersey employers should consider as we enter 2015:

  • New Jersey’s minimum wage increases to $8.38 per hour, effective January 1, 2015.  Be sure that your payroll is updated to reflect this change which followed the state constitutional amendment mandating that the minimum wage be tied to the rate of inflation.
  • On March 1, 2015, the New Jersey Opportunity to Compete Act, signed into law by Governor Christie several months ago, will go into effect. The “Ban the Box Law,” as it has come to be known, restricts the ability of employers with 15 or more employees to conduct criminal background checks on potential new employees or current employees applying for new positions within the company.  Some exceptions are built into this law, but employers should use the next two months to determine if the Ban the Box law covers them.  If covered, an employer should immediately review (and revise, if necessary) its recruitment and hiring practices and documents for compliance by March 1.
  • Several laws have posting requirements, and employers should insure they are in compliance with those requirements. For example, posters addressing state wage and hour laws, unemployment benefits, workers compensation benefits, and the NJ Law Against Discrimination must be conspicuously posted in the workplace.  More recently enacted laws, such as the NJ SAFE Act, also have a posting requirement. In addition, some laws, such as the NJ CEPA, require notices to be distributed to employees annually.  Similarly, employers are required to meet posting requirements, as well as written notice requirements, under laws such as the Family Leave Insurance Law.  Employers may access posters through the New Jersey Department of Labor website by clicking here.
  • Paid sick leave laws continue to be adopted in municipalities around the State, and all of them are unique in their applicability and requirements. Some of these laws also have posting requirements. Newark and Jersey City laws are already in place.  In addition, a number of other municipalities have adopted paid sick leave laws that will become effective in the coming weeks and months:  Passaic (December 31, 2014), East Orange (January 6, 2015), Paterson and Irvington (January 7, 2015), and Trenton and Montclair (March 4 2015).
  • New Jersey employers should, as always, remain mindful of anti-discrimination laws as they conduct their day-to-day business operations.  The Equal Employment Opportunity Commission has released its FY2014 Performance Report, which reflects that, despite limited resources, the EEOC is focused on pursuing investigations on behalf of employees who contend they were discriminated against by their employers.  In addition, the EEOC continues to file lawsuits where it has identified allegedly discriminatory patterns and practices in violation of federal laws that impact a region, industry or class of employees or job applicants.  The EEOC filed 17 such lawsuits in FY2014.
  • In terms of litigation development in the New Jersey state courts, employers should keep an eye out for a decision from the New Jersey Supreme Court, which recently announced that it would hear the case of Rodriguez v. Raymours Furniture Company, Inc.  Essentially, the issue on appeal is whether an employer can shorten the time period within which a state law employment claim must be filed, by including such a provision in an employment application.  In Rodriguez, the appellate court had determined that an employer could, in fact, reduce that time period from 2 years to 6 months by conspicuously displaying such a provision in the application, creating an enforceable contract.  If the employer’s position is upheld, this could offer some level of protection to employers by restricting employee opportunities to sue under state law.
  • If you have not looked at your employee handbook in the past year, you should set aside some time to do that now.  Changes in your business practices, as well as in federal, state, and local laws, can impact your company policies, and these changes should be captured in your employee handbooks.

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This post was authored by Patrick T. Collins and Annmarie Simeone. For more information, contact them at ptcollins@nmmlaw.com or amsimeone@nmmlaw.com.

 

Supreme Court Delivers Blow to Public-Sector Unions

On Monday, the U.S. Supreme Court weakened public-sector unions by ruling that thousands of “partial public employee” home health care workers in Illinois do not have to pay mandatory “fair share” fees to cover the union’s cost of collective bargaining.  The Court’s decision in Harris v. Quinn limits the viability of public-sector unions in the home-care industry, which has been a rare source of union growth over the past decade.

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Supreme Court Rules for Employers on Contraceptive Mandate

Yesterday, the U.S. Supreme Court issued a decision that could help ease the burdens placed on many employers by the Affordable Care Act (“ACA”). In Burwell v. Hobby Lobby Stores , the Court ruled that the federal government cannot force owners of closely-held, for-profit corporations to provide insurance coverage for certain types of contraception that violate their religious beliefs.

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Shortening Of Statute Of Limitations By Agreement Contained In Employment Application Deemed Enforceable

In a decision that affects every employer and employee in the state, the New Jersey Appellate Division has held that a contractual provision contained in an employment application that shortens the statute of limitations for employment claims to six months is enforceable.  Read the rest of this entry »

Bring Your Own Devices (BYOD): Policies and Practical Considerations

As more and more employees are using their own mobile, electronic devices for work, employers must recognize and address the many issues that arise from this practice. Today employees typically own three separate electronic devices (smart phones, tablets and laptops), which all potentially can be used for work. In the very near future, e-mails and other work-related information may be viewed and exchanged through Google glasses, smartwatches, smart cars and even smart homes. One estimate indicates that by next year, there will be over fifteen billion electronic devices in existence.

BYOD

What happens if one of these devices that contain an employer’s important business information is lost or stolen? What happens if an employee is terminated and refuses to remove company data from their device? Who owns the phone number or LinkedIn site that an employee has used to amass significant contacts with the employer’s customers and clients? Does checking e-mails at home constitute work for which an employee must be paid? Are employee-owned devices subject to discovery in the event that litigation occurs? All of these are important questions that an employer must address in a comprehensive BYOD policy.

For more information on what a comprehensive BYOD policy should address and other practical considerations, read the rest of the alert here.

New Jersey Inching Closer to Another Law Prohibiting Employer Discrimination Against the Unemployed

In 2011, Governor Christie signed into law a bill making it illegal (with certain exceptions) for an employer or an employer’s designee to “knowingly or purposefully publish, in print or on the Internet, an advertisement for any job vacancy in this State” which states that a requirement for the job is the applicant’s current employment or that the employer will not consider or review an application for employment from any job applicant who is currently unemployed.  N.J.S.A. 34:8B-1.  The statute did, however, permit employers to state that they would only consider applicants who are currently employed by their own companies, and also did permit employers to require an applicant to meet certain educational or licensing requirements consistent with the position.  The constitutionality of this provision was upheld in New Jersey Dept. of Labor and Workforce Development v. Crest Ultrasonics, 434 N.J. Super. 34 (App. Div. 2014). Oregon, the District of Columbia and New York City passed similar laws prohibiting employers from discriminating against unemployed individuals.

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New EEOC Guidelines on Religious Garb and Grooming in the Workplace

On March 6, 2014, the EEOC issued two new publications addressing rights and responsibilities regarding religious dress and grooming in the workplace under Title VII.  Given the steady increase in charges of religious discrimination filed with the EEOC, it is hoped that these practical guidelines will assist employers in complying with the law.

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LEGISLATIVE UPDATE: Governor Christie Signs Law Prohibiting Pregnancy Discrimination

On January 8, 2014, we reminded New Jersey employers about a pending bill (S-2995/A-4486) that would amend the New Jersey Law Against Discrimination by adding a provision prohibiting discrimination based on pregnancy, childbirth, or related medical conditions.

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