United States Supreme Court Expands Employer Responsibility for Accommodating Pregnancy

On March 25, 2015, the U.S. Supreme Court issued a decision in Young v. UPS, which employer and employee groups alike hoped would clarify whether employers must provide light duty and other workplace accommodations to pregnant employees in the same manner they provide accommodations to employees who are injured on the job.  While the majority opinion did not answer this question directly, the Supreme Court provided a somewhat new framework for pregnant employees challenging workplace accommodation policies and practices under Title VII of the Civil Rights Act (“Title VII”), as amended by the Pregnancy Discrimination Act (“PDA”).

If an employer’s policies impose a “significant burden” on pregnant workers, and the employer’s articulated legitimate, nondiscriminatory reasons do not justify that burden but instead give rise to an inference of discrimination, then a plaintiff likely will be able to reach a jury trial on her pregnancy claim.  As the Court noted, a “significant burden” can be shown by evidence that an employer “accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.”  The Court also strongly hinted that cost and inconvenience alone would be insufficient reasons to avoid a jury trial.

The Court’s decision creates the possibility that workplace policies that provide accommodations to some workers but exclude pregnant employees may be a violation of the PDA.  If employers have such accommodation policies, they should consider taking steps to reconsider them, particularly if the only justification for excluding pregnant workers from those policies is the consideration of cost or convenience.  At the very least, employers who have such a policy should be prepared to articulate a strong, legitimate rationale for maintaining that policy.

Employers should take the time to carefully review their non-disability discrimination and reasonable accommodation policy in light of the Young opinion.  Employers should also train their supervisory employees to ensure they understand the accommodation process.  Please feel free to contact Connell Foley’s employment law attorneys for guidance on analyzing your company’s policies and procedures, and for any employee training needs.

New Jersey’s “Ban the Box” Law in Effect March 1, 2015

On March 1, 2015, New Jersey’s Opportunity to Compete Act goes into effect.  The law, dubbed “Ban the Box” legislation, prohibits employers with 15 or more employees from including a question on an employment application asking about the applicant’s criminal background.  It also prohibits employers from inquiring about an applicant’s criminal record during the “initial employment application process.”

The “initial employment application process” is defined as the time period from when the applicant first inquires about an employment position, through his/her first interview with the employer.  Thus, only upon completion of the applicant’s first interview would the employer be permitted to inquire about the applicant’s criminal history or conduct a criminal background check.  The law also prohibits employers from posting job advertisements stating that they do not consider anyone with a criminal background.  There are exceptions for certain positions, where a criminal background check is required by law or where the position is part of a program designed to employ people with criminal backgrounds.

The law is intended to create a hiring process that is more favorable to individuals who have a criminal history by providing them an opportunity to re-integrate into the workforce.  The law imposes civil penalties for violations of its provisions. 

For more information on the new law and how it applies to your business, please contact Connell Foley’s labor and employment lawattorneys.

New Jersey Supreme Court Establishes Affirmative Defenses for Employers Accused of Sexual Harassment and Affirms the Importance of Employee Training

On February 11, 2015, the New Jersey Supreme Court raised the standards for plaintiffs in sexual harassment cases who are seeking to hold their employers vicariously liable for a supervisor’s alleged harassing conduct. 

In Aguas v. State of New Jersey, the New Jersey Supreme Court held that, in supervisor harassment cases where the supervisor’s alleged harassment has not culminated in a tangible employment action, an employer may assert as an affirmative defense:

(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and

(b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

As the court explained, a “supervisor” in sexual harassment cases includes any individual who was authorized to undertake tangible employment decisions affecting the plaintiff employee or who was authorized to direct the plaintiff employee’s day-to-day work activities.

The court specifically hinted to employers that this affirmative defense is a powerful incentive for an employer to unequivocally warn its workforce that sexual harassment will not be tolerated, to provide consistent workplace harassment prevention training, and to strictly enforce its policy.  The court warned, however, that “an employer that implements an ineffective anti-harassment policy, or fails to enforce its policy, may not assert the affirmative defense.”

Employers should take this opportunity to examine their anti-harassment policies to ensure they are effective and specifically-tailored to their workplace.  Employers should also provide workplace harassment prevention training to their supervisors and employees to make sure every supervisor knows how to prevent and promptly correct sexually-harassing behavior and to make sure every employee knows about the employer’s reporting mechanisms.

Connell Foley has extensive experience in drafting effective anti-harassment policies and conducting practical, cost-effective workplace harassment prevention training.  Please feel free to contact our employment law attorneys for guidance on drafting an effective anti-harassment policy for your workplace, training your workforce, and enforcing your policy to ensure your business can take advantage of this new affirmative defense.

New Jersey Adopts “ABC Test” for Classifying Independent Contractors Under Wage Payment Law

On January 14, 2015, the New Jersey Supreme Court decided which test should be applied under New Jersey law to determine whether a worker is an employee or an independent contractor for purposes of resolving a wage payment or wage and hour claim.  Hargrove v. Sleepy’s LLC presented that issue on a question of law certified and submitted by the United States Court of Appeals for the Third Circuit.

The New Jersey Supreme Court determined that the “ABC” test governs whether a worker is an employee or an independent contractor for purposes of the New Jersey Wage Payment Law and the New Jersey Wage and Hour Law.  Under the “ABC” test, an employer is required to presume that a worker is an employee unless the employer can show that:

(1)        the employer neither exercised control over the worker nor had the ability to exercise control in terms of the completion of the work;

(2)        the services provided were either outside the usual course of business or performed outside of all the places of business of the enterprise; and

(3)        the individual is customarily engaged in an independently-established trade, occupation, profession or business.

An employer’s failure to satisfy any one of those three criteria results in the worker being classified as an “employee” for wage payment and wage and hour purposes.  Thus, New Jersey employers must satisfy the worker-friendly “ABC” test in order to classify a worker as an independent contractor for purposes of the Wage Payment Law and Wage and Hour Law. 

Before Hargrove, many New Jersey employers traditionally applied the six-factor “economic realities” test for determining whether a worker is an independent contractor for purposes of minimum wage and overtime under the Fair Labor Standards Act.  The results of an analysis under the economic realities test may, and likely would, be different than the results of an analysis using the “ABC” test.

Employers should take this opportunity to examine their worker classifications to ensure they satisfy this new standard and either re-classify their workers as employees or tailor their relationships in order to satisfy the “ABC” test.  This includes reviewing – and ensuring the employer has – documentation regarding the independent contractor’s separate business entity, invoices for work performed, and written contracts that clearly describe the work duties and track the elements of the “ABC” test. 

Please feel free to contact Connell Foley’s employment lawattorneys for guidance on implementing the “ABC” test or any other worker classification issue you may be facing.

Revised Occupational Safety and Health Administration (“OSHA”) Recordkeeping and Reporting Requirements Effective January 1, 2015

Beginning January 1, 2015, employers under the federal jurisdiction of OSHA will be required to comply with more stringent OSHA recordkeeping and reporting requirements.  In the past, employers were required to report all work-related fatalities and all work-related hospitalizations of three or more employees. Starting January 1st, however, employers must report all of the following:

•  All work-related fatalities;
•  All work-related inpatient hospitalizations of one or more employees;
•  All work related amputations;
•  All work-related losses of an eye.

Pursuant to the new requirements, work-related fatalities must be reported to OSHA within 8 hours of learning of the incident, and all inpatient hospitalizations, amputations and losses of an eye must be reported within 24 hours of learning of the incident. Three reporting mechanisms will be available to employers: (1) calling or visiting the nearest area office during normal business hours, (2) calling the 24-hour OSHA hotline at 800.321.OSHA, or (3) reporting online (coming soon at www.osha.gov).

OSHA has prepared resources to assist employers in understanding and complying with the new requirements including a FactSheet and a list of FAQs.

For more information on the new OSHA requirements and how they may affect your business, please contact Connell Foley’s labor and employmentlaw attorneys.

The Office of Federal Contract Compliance Programs (OFCCP) Publishes Final Rule Prohibiting Discrimination by Federal Government Contractors on the Basis of Sexual Orientation and Gender Identity

On December 9, 2014, the Office of Federal Contract Compliance Programs (“OFCCP”) published a Final Rule implementing President Obama’s Executive Order 13672, which incorporates “sexual orientation” and “gender identity” as protected classes and bars related employment discrimination by federal government contractors.  The Final Rule becomes effective on April 8, 2015 (120 days after publication in the Federal Register).  The Rule was initially expected to be published in the Federal Register on December 3, 2014, but a notice soliciting comments on the Rule pursuant to the Paperwork Reduction Act was issued instead, providing for a 60 day comment period. Despite this comment period, given that the OFCCP has already issued FAQs pertaining to the Rule, no substantive changes are expected.

The new Rule implements Executive Order 13672 by amending the implementing regulations under Executive Order 11246. The Rule will apply to contractors or subcontractors with more than $10,000 in federal government business and covers contracts entered into or modified on or after the effective date. The regulations do not define the terms “sexual orientation” or “gender identity.” As set forth in the OFCCP’s FAQs, the OFCCP utilizes the same definitions used by the Equal Employment Opportunity Commission and case law developed under Title VII of the Civil Rights Act.

What Does the New Rule Require?

• Covered contractors and subcontractors must revise the Equal Opportunity Clause contained in new and modified contracts, subcontracts and purchase orders, and update the equal opportunity language in their Equal Employment Opportunity (“EEO”) policy statements, training materials, handbooks, and job solicitations to include “sexual orientation” and “gender identity,” or otherwise replace the phrase “sex, or national origin” with the phrase “sex, sexual orientation, gender identity, or national origin” throughout. 

• Covered contractors and subcontractors must post revised “EEO and the Law” posters that include sexual orientation and gender identity as protected classes and otherwise revise all posted EEO notices to include sexual orientation and gender identity.  A revised “EEO and the Law” poster has not yet been released by the OFCCP or EEOC.

• Overall, covered contractors and subcontractors must ensure that applicants and employees are not discriminated against on the basis of their sexual orientation or gender identity.

What is Not Required by the New Rule?

• The Final Rule does not require covered contractors to conduct any data analysis with respect to the sexual orientation or gender identity of their applicants or employees.

• The Final Rule does not contain any affirmative action program requirements, and thus does not change any of the written affirmative action plan requirements contained in 41 C.F.R. Part 60-2.

• The Final Rule does not require covered contractors to establish placement goals for employing persons on the basis of sexual orientation or gender identity.

For more information on the new Rule and how it may apply to your business, please contact Connell Foley’s labor and employment law attorneys.

New Jersey Assembly Committee Advances Paid Sick Leave Bill

On October 27, 2014, the New Jersey Assembly Labor Committee advanced amended legislation that would require employers to provide paid sick leave to their employees.  The Legislature is joining a national and local trend to mandate paid sick leave in almost every workplace.

The bill would require employees to accrue one hour of sick leave for every 30 hours worked, up to 40 hours per year if the employer has fewer than 10 employees and up to 72 hours per year if the employer has 10 or more employees.  The employer would be required to pay the employee for earned sick leave at the employee’s normal rate of pay.  The bill provides for penalties for non-compliance with its requirements.

The Labor Committee made several amendments to the bill.  Among other changes, the Committee defined the term “benefit year” as a 12-month period established by the employer during which an employee accrues and uses earned sick leave.  It also specifically exempted from its purview construction employees who are covered by a collective bargaining agreement.

The proposed legislation is now before the Assembly Budget Committee for review.  It will need to be passed by the Assembly, then by the Senate, and finally by Governor Chris Christie before it becomes binding legislation.  Connell Foley’s labor and employment law attorneys will continue to track this bill.