Norris, McLaughlin & Marcus

Effective March 1: New Law on Employee Background Checks

Just as a friendly reminder, 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, and employers should determine if the Ban the Box law covers them. A copy of the law can be found here. If covered, employers should immediately review (and revise, if necessary) their recruitment and hiring practices and documents for compliance.

Should you have any questions on this issue, please contact Pat Collins at ptcollins@nmmlaw.com or Annmarie Simeone at amsimeone@nmmlaw.com.

Definition of “Spouse” Under the Family and Medical Leave Act, Expanded to Include Same-Sex Marriages

The U.S. Department of Labor (“DOL”) announced that on February 25, 2015, it will issue a Final Rule that revises and expands the definition of “spouse” under the Family and Medical Leave Act (“FMLA”).  Under the revised definition, “spouse” will include all individuals in legal marriages, including husband and wife, and individuals in same-sex and common-law marriages.  This change was made in light of the U.S. Supreme Court’s 2013 decision in United States v. Windsor, 570 U.S.___, 133 S. Ct. 2675 (2013), which struck down that portion of the Defense of Marriage Act that interpreted “marriage” and “spouse” as being limited to opposite-sex marriages.  The Final Rule is set to go into effect on March 27, 2015.

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Check out the EEOC’s Annual Discrimination Statistics

The U.S. Equal Employment Opportunity Commission (“EEOC”) enforces federal laws prohibiting employment discrimination. Each year, the EEOC provides statistical data summarizing the charges of employment discrimination, and resolutions of those charges, under each of the anti-discrimination laws it enforced during the previous fiscal year. Earlier this month, the EEOC released its FY2014 Enforcement and Litigation Data, reporting on the compiled data for the fiscal year which ran from October 1, 2013, to September 30, 2014. The EEOC’s press release can be found on the EEOC website, or by clicking here, and it contains links to the various data tables that include historical data as well.

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The New Jersey Supreme Court’s New Decision On Harassment In The Workplace – What Employers Need To Know

On February 11, 2015, the New Jersey Supreme Court rendered the decision in Aguas v. State of New Jersey, _N.J._, No. 072467 (2015), in which the Court addressed two significant issues that frequently arise in hostile work environment sexual harassment claims: (1) what impact does an employer’s anti-harassment policy have on such claims, and (2) what is the definition of a “supervisor” in these cases?  While the Court’s lengthy decision provides a history of the law on sexual harassment at both the New Jersey and the federal level, there is really only one significant take away for employers.  An employer who fails to implement a detailed anti-harassment policy, reinforced through employee training and constant endorsement from upper management, will have no defense when confronted with a hostile work environment sexual harassment claim.

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Supreme Court Rules Against Union Retirees in Health Benefits Case

The United States Supreme Court recently ruled that silence in a collective bargaining agreement (“CBA”) regarding the duration of retiree healthcare benefits does not automatically mean that such benefits vest for life. The Court’s decision in M&G Polymers USA, LLC v. Tackett is welcome news for employers with CBAs that include such benefits. Read the rest of this entry »

NLRB Accelerates Timeline for Union Elections with New Rule

The National Labor Relations Board (“NLRB”) recently published its highly-anticipated final rule governing procedures for union representation elections. The new “quickie” or “ambush” rule, which is scheduled to take effect on April 14, 2015, increases the burdens borne by employers leading up to an election, limits employers’ ability to challenge voter eligibility until after an election, and drastically reduces the timeframe between the filing of an election petition and the election from six (6) to eight (8) weeks to three (3) in most cases.

The following are major provisions of the new rule that employers should be aware of: Read the rest of this entry »

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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