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.