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.

New Jersey Minimum Wage Hike Effective January 1

On January 1, 2015, New Jersey’s minimum wage will increase from $8.25 per hour to $8.38 per hour.  In November 2013, voters approved a constitutional amendment to initially raise New Jersey’s minimum wage to $8.25 per hour and then raise it annually according to the cost-of-living increases tied to the Consumer Price Index (“CPI”).  Each September, these annual increases are calculated.

As a result, employers must begin paying employees at least $8.38 per hour beginning January 1, 2015.  Please feel free to contact Connell Foley’s labor and employment law attorneys if you have any questions regarding the minimum wage increase.

Three New Jersey Towns Pass Paid Sick Leave Ordinances

Within the past few weeks, three New Jersey towns – Passaic, Paterson and East Orange – passed paid sick leave ordinances.  Under these laws, private employers are required to provide paid sick leave to their employees who work a minimum number of hours per year within the city. 

Under all three ordinances, employers with 10 or more employees are required to provide at least 40 hours of paid sick leave per year to their employees.  Employers with fewer than 10 employees are required to provide at least 24 hours of paid sick leave per year.  The ordinances have a special exception for employees who are child care workers, home health workers and food service workers, as they are permitted to accrue up to 40 hours of paid sick leave per year, even if the employer has fewer than 10 employees.

Passaic, Paterson and East Orange employees earn one hour of sick time for every 30 hours worked, up to 40 hours per year.  The ordinances permit employees to use paid sick time to care for themselves, their spouse or civil union partner, children, siblings, parents, grandparents and grandchildren.  Employers are required to provide written notice to their employees of their rights under the law, and they must post information about the ordinance at their place of business.

All of these paid sick leave ordinances go into effect in January 2015.  Currently, there is state legislation pending that would mandate paid sick leave for all employees within New Jersey.  The bill is still being contemplated by the legislature.  Please contact Connell Foley’s labor and employment law attorneys for guidance on addressing these new paid sick leave ordinances.

NJ Appellate Division Upholds Employment Application Truncating Statute of Limitations

On June 19, 2014, in Rodriguez v. Raymours Furniture Co., 436 N.J. Super. 305 (App. Div. 2014), the New Jersey Appellate Division held that a contractual provision contained in an employment application that shortens the statute of limitations applicable to claims against the employer is enforceable.

In the case, plaintiff Sergio Rodriguez applied for a position at Raymours Furniture Co., a retail furniture company.  On the application form, immediately above the signature line, there was bold-faced, large print, capitalized language indicating that the applicant was waiving the statute of limitations applicable to claims or lawsuits against the company and, instead, would be required to file any claim within six months of the date of the action.  The plaintiff was hired and, several years later, was laid off during a company-wide reduction in force (“RIF”). 

The plaintiff initiated a lawsuit against Raymours nine months after the RIF.  The trial court granted Raymours’ motion for summary judgment, finding that the plaintiff filed his lawsuit outside of the contractual time period of six months.  The Appellate Division affirmed.  The panel found that the language was clear in its terms, was conspicuously placed on the application, was reasonable, and was not contrary to any public policy.

In light of this opinion, employers may want to consider including a statute of limitations waiver in their employment applications.  For assistance in drafting this language or other employment policies, please contact Connell Foley’s labor and employment law attorneys.

Draft Affordable Care Act Forms and Instructions Released

The IRS recently released draft forms and instructions for employers to review in connection with the Affordable Care Act (“ACA”) employer mandate.  These forms are merely in “draft” form and may change in the future, but they provide insight into the scope of information that likely will be required from employers in the near future.

Beginning in 2016 for the 2015 Plan Year, certain employers must file Forms 1094-C and 1095-C in order to meet their reporting requirements under the statute.  The purpose of the reporting requirement is to notify the government about whether the employer is meeting its health coverage obligations under the ACA.

The ACA requires employers with 50 to 99 “full time equivalent” employees to offer health insurance to all full time employees by January 2016.  Employers with over 100 “full time equivalent” employees must offer health insurance to all full time employees by January 2015.  Employers that fail to meet these requirements are subject to a fine.

Form 1094-C is used to report to the IRS a summary of the information being provided on a Form 1095-C as to each employee.  A copy of the draft Form 1094-C can be found here.  Form 1095-C is used to report information about each employee’s health insurance coverage.  A copy of the draft Form 1095-C can be found here.  A copy of the draft instructions for filling out both forms can be found here.

For more information on the ACA employer mandate, please contact Connell Foley’s labor and employment law attorneys.

NLRB Ratifies Agency Actions Following Supreme Court’s Noel Canning Decision

On July 18, 2014, the National Labor Relations Board (“NLRB”) ratified all administrative, personnel, and procurement actions approved and/or taken by the Board between January 4, 2012 and August 5, 2013.  This ratification follows the U.S. Supreme Court’s decision in NLRB v. Noel Canning that invalidated NLRB actions during that time period because President Obama impermissibly appointed Board members in January 2012.

The NLRB’s meeting minutes show that all five Board members unanimously approved the ratification.  For more information on the effects of the NLRB’s decision, feel free to contact Connell Foley’s labor and employment law attorneys.

Christie Signs “Ban the Box” Legislation

On August 11, 2014, Governor Chris Christie signed into law the Opportunity to Compete Act, joining the national trend of “ban the box” legislation.  The Legislature passed the underlying bill in June.

The new law prohibits employer inquiries into a job applicant’s criminal record during the initial application process.  Therefore, under the legislation, employers cannot require applicants to complete an initial application that asks about their criminal history, cannot post job advertisements stating that they do not consider anyone with a criminal background, and cannot ask questions about prior arrests or convictions during an applicant’s first interview.

The measure is designed to create a hiring process that is more favorable to individuals who have a criminal history.  The legislation 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 law attorneys.

NLRB General Counsel Authorizes Complaints Against Both McDonald’s Franchisees and Franchisor

The Office of the General Counsel of the National Labor Relations Board (“NLRB”) has been investigating charges against McDonald’s franchisees that they violated their employees’ labor rights in connection with employee protests.  Yesterday, July 29, 2014, the General Counsel authorized complaints against both the McDonald’s franchisees and, startlingly, their franchisor for those alleged violations. 

The General Counsel’s decision permits the McDonald’s franchisor to be named as a “joint employer” in the complaints.  Therefore, the franchisor could be held responsible if a franchisee committed a violation of the labor laws.  If sustained by an administrative law judge and/or the NLRB, this decision would represent a significant expansion of the “joint employer” theory that could have wide-ranging implications not only for the fast-food industry but also for businesses like hotels and car dealerships.  Connell Foley’s labor and employment law attorneys will continue to track the developments of this case.

EEOC Issues New Guidance on Pregnancy Discrimination

On July 14, 2014, the EEOC issued Enforcement Guidance (“Guidance”) and Questions and Answers (“Q&As”) addressing pregnancy discrimination in the workplace.  The Guidance explains the EEOC’s interpretations of the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”) as they pertain to pregnant workers.

The PDA prohibits discrimination on the basis of an employee’s past, current, or potential pregnancy, childbirth, or related medical conditions, including lactation.  The PDA also requires employers to treat pregnant women the same as others who are similar in their ability or inability to work.  Therefore, pregnant employees must receive equal access to benefits, such as light duty, leave, and health insurance.

Under the ADA, employers are prohibited from discriminating on the basis of an employee’s disability.  Pregnancy itself is not a disability under the ADA, but some pregnant workers might have pregnancy-related impairments that qualify as disabilities.  The ADA requires employers to provide reasonable accommodations for employees who are disabled, including those with pregnancy-related conditions.

The Guidance is persuasive, but not binding, authority.  The United States Supreme Court is set to hear Young v. United Parcel Service, Inc., in which it will decide “whether, and in what circumstances, an employer that provides work accommodations to non-pregnant employees with work limitations must provide work accommodations to pregnant employees who are ‘similar in their ability or inability to work.’”  The Court’s decision could affect the persuasiveness of the Guidance on this issue in the future.

Although this Guidance is generally consistent with New Jersey’s state laws against pregnancy discrimination, it could impact some employers’ policies on pregnancy accommodations.  Connell Foley’s labor and employment law attorneys welcome the opportunity to review your company’s workplace policies. 

U.S. Supreme Court Invalidates NLRB Decisions

On June 26, 2014, the United States Supreme Court issued a 9-0 decision in NLRB v. Noel Canning, invalidating recess NLRB appointments that President Obama made on January 4, 2012 and potentially invalidating all NLRB decisions from January 2012 through July 2013.

In January 2012, the Senate was holding “pro forma” sessions every three days and, during that time, President Obama believed the Senate was “in recess.”  Therefore, under the Constitution’s Recess Appointment Clause, President Obama exercised his authority to appoint members to the NLRB.  Those members went on to make decisions with sweeping changes to the NLRB case law.

In its June 26 opinion, the U.S. Supreme Court concluded that the Senate was not in recess in January 2012 and, thus, the President lacked the power to make the NLRB recess appointments.  In so holding, the Court found that the NLRB was not operating with the requisite three-member quorum when making decisions from 2012 through 2013.  The Court, therefore, invalidated all of the NLRB’s decisions from January 2012 through July 2013, when it established a proper membership.

The decision affects employers as it raises uncertainty concerning the validity of NLRB decisions, rulings, and administrative actions issued during this time period, although the NLRB has already started to revisit these decisions on a case-by-case basis.  Connell Foley’s labor and employment law attorneys will track the NLRB’s response and will be available to assist employers in understanding how to respond to these new decisions.

Assembly Advances “Ban the Box” Bill

On June 26, 2014, the New Jersey Assembly passed the “Opportunity to Compete Act.”  The Legislature is joining a national trend to create “ban the box” legislation that would eliminate the check box on job applications asking whether the applicant has been convicted of a crime.

The bill would prohibit certain employers from inquiring as to an applicant’s criminal record during the “initial application process.”  Therefore, an employer would only be permitted to ask, either orally or in writing, about the applicant’s criminal background after the initial interview with the applicant.  Failure to comply with the legislation’s mandates would result in civil penalties.

Both Houses have now passed the bill, which is pending Governor Christie’s review and signature.  Connell Foley’s labor and employment law attorneys will continue to track this pending legislation.

New York Passes Bill Eliminating Wage Notice Requirement

On June 19, 2014, the New York Legislature passed a bill that would eliminate the requirement that employers provide annual wage notices to employees.  Currently, under the Wage Theft Prevention Act, employers must provide wage notices to all employees by February 1 of each year.  The bill would eliminate that mandate starting in 2015.

The bill, however, would not modify the requirement that employers provide a wage notice to new employees upon their hire.  It also would increase the penalties for an employer’s failure to provide such wage statements.

If Governor Cuomo signs the bill, it will take effect sixty days after it is signed.  Please feel free to contact Connell Foley’s labor and employment law attorneys if you have questions about the bill or any other wage and hour law issue.

NJ Supreme Court Reaffirms Standard for CEPA Claims

New Jersey’s Conscientious Employee Protection Act (“CEPA”), protects and encourages employees to report illegal or unethical workplace activities without threat of retaliation by the employer. On June 16, 2014, the Supreme Court of New Jersey issued a landmark opinion involving the CEPA.  In Hitesman v. Bridgeway, Inc., the Court found that the plaintiff’s CEPA claim failed because he could not point to a binding source of public policy under which he could receive whistleblower protection.

The plaintiff was a nurse at a nursing home who claimed he was fired for blowing the whistle over improper patient care at the nursing facility. Specifically, he claimed that, pursuant to the American Nursing Association Code of Ethics (“ANA Code”), he reported a rash of gastrointestinal and respiratory infections that broke out among the nursing home’s patients. The plaintiff disagreed with the manner in which the outbreak was handled. As a result of the report, he was retaliated against and terminated.

The Court, in affirming the Appellate Division’s decision, held that the ANA Code “does not constitute a source of law or other authority” that establishes standards for infection control at nursing homes.  It reasoned that claims asserted under CEPA’s “improper quality of patient care” provision must be premised on a “reasonable belief” that an employer has violated a rule, law, declaratory ruling adopted pursuant to law, regulation, or professional code of ethics governing the profession or delineating between acceptable and unacceptable conduct for the employer in question.  

In order to assert that an employer’s conduct is incompatible with a “clear mandate of public policy concerning the public health,” the employee must be able to cite to authority that governs the standards for the employer’s conduct.  The ANA Code does not govern the standards for a nursing home’s conduct and, therefore, cannot serve as the source of authority for a CEPA claim.  Instead, the ANA Code “directs a nurse’s action in response to deficient patient care in a nursing home, but provides no standard by which such a deficiency can be ascertained.”

The Hitesman decision is significant insofar as the New Jersey Supreme Court reaffirmed that in order for an employee to have a viable CEPA claim regarding improper quality of patient care or conduct incompatible with a clear mandate of public policy the employee’s complaints must actually implicate an activity, policy or practice of the employer. Also, and the employee is required to present evidence to support a substantial connection between the adverse employment action he or she is  complaining of and the employee’s alleged whistleblowing activity. 

Newark’s Paid Sick Leave Ordinance In Effect

The City of Newark’s paid sick leave ordinance took effect this past Saturday, June 21, 2014.  As we previously posted on April 1, 2014, the City of Newark passed an ordinance mandating certain employers to provide paid sick leave to their employees.  Employers are required to notify employees of their rights by providing individual written notice to employees and posting a notice of rights in the workplace, although the City has not yet issued a model notice.

For more information about the ordinance, refer to Newark’s webpage or contact Connell Foley’s labor and employment law attorneys.

Unpaid Intern Amendments take effect in New York City

Recently passed amendments to the New York City Human Rights Law (NYCHRL), dubbed the “unpaid intern amendments,” took effect this past Saturday June 14, 2014.  Previously, there had been a question as to whether, under the NYCHRL, unpaid interns were afforded the same rights as employees, and could sue employers for discrimination/harassment based on race, age, color, creed, gender, national origin, sexual orientation, disability and other protected classes.  The NYCHRL amendments clarified that its protections and the right to sue extend to unpaid interns.

The NYCHRL defines an “intern” as “an individual who performs work for an employer on a temporary basis whose work: (a) provides training or supplements training given in an educational environment such that the employability of the individual performing the work may be enhanced; (b) provides experience for the benefit of the individual performing the work; and (c) is performed under the close supervision of existing staff.”  The term includes both paid and unpaid interns.

The amendments came in response to Wang v. Phoenix Satellite Television US, Inc. wherein the Southern District of New York held that plaintiff, an unpaid intern, could not file a harassment claim because an unpaid intern was not considered an “employee” under the NYCHRL.  The amendments passed on March 26, 2014 by a unanimous Council and were signed into law by Mayor Bill de Blasio on April 15.  Similar efforts are underway with regard to the New York State Human Rights Law.

Given that many New York City employers are currently in the early days of their unpaid internship programs, it is advised that New York City employers revisit their employment handbooks and harassment policies to ensure their application to unpaid interns as well.

If you would like to have if your employee handbook reviewed by members of Connell Foley’s employment law group, please call us at 973.535.0500. 

Senate Committee Advances “Ban the Box” Bill

On June 5, 2014, the New Jersey Senate Budget and Appropriations Committee voted 10-1 to approve the Opportunity to Compete Act.  The proposed bill would prohibit employers with fifteen or more employees from inquiring about an applicant’s criminal record during the initial employment application process.  Dubbed “ban the box” legislation, the bill would prohibit employers from including a check box on an application asking about the applicant’s criminal background.

The legislation only covers the “initial employment application process,” which is defined as the time period from when the employee first inquires about an employment position through the employee’s first interview with the employer.  Only upon the completion of the first interview would an employer be permitted to inquire about the applicant’s criminal history under this proposed bill.

The bill creates exceptions for positions in law enforcement, corrections, the judiciary, homeland security, and emergency management.  It also has an exception for any position where a criminal background check is required by law, or where a position is specifically designed to encourage employment of people who have been arrested or convicted of a crime.

Under the proposed bill, an employer that violates the act would face a civil penalty of up to $1000 for the first violation, up to $5000 for the second violation, and up to $10,000 for a third or subsequent violation.  The bill does not create a private cause of action.

Connell Foley’s labor and employment law attorneys will continue to track this bill and inform employers of its progress through the Legislature.  If your company has any questions about conducting background checks of applicants or employees, please feel free to contact us for assistance.

Proposed Changes to COBRA Notice

On May 2, 2014, the Employee Benefits Services Administration (“EBSA”) of the Department of Labor proposed regulations to amend the notice requirements under COBRA. 

COBRA requires employers to provide notice to their employees regarding their eligibility to continue their employer-sponsored health care coverage following a qualifying event, which includes separation from employment.  Eligible employees are permitted to purchase COBRA coverage for a period of time at 102 percent of the cost of the coverage. 

The proposed changes are designed to align the COBA notice requirements with the Affordable Care Act (“ACA”) provisions already in effect and those becoming applicable in the future.  Specifically, the updated notices indicate that former employees who are COBRA-eligible may instead choose to purchase coverage through the ACA’s Health Insurance Marketplace.  This option may provide individuals with lower premiums and financial assistance.

Connell Foley LLP’s labor and employment law attorneys will keep employers informed of the developments of this proposed change.  Please feel free to contact us with any issues your company may be facing related to the new health insurance requirements under federal law.

Practical and Effective Workplace Harassment Prevention Training Is a Must for Employers

EEOC/FTC Issue Guidance on Background Checks

The Equal Employment Opportunity Commission (“EEOC”) and the Federal Trade Commission (“FTC”) issued guidance on utilizing background checks in the employment context.  The publications offer technical assistance to employers on how the agencies’ laws impact the background check process. 

One document, entitled “Background Checks: What Employers Need to Know,” informs employers about steps they must take to gather, use, and dispose of background information legally.  The other document, entitled “Background Checks: What Job Applicants and Employees Should Know,” answers basic questions employees and job applicants might have about their rights during this process.

The publications emphasize that employers are prohibited from engaging in discrimination when conducting and utilizing information gathered from screening procedures.  They also require employers to comply with the Fair Credit Reporting Act (“FCRA”) if the employer uses a third party to compile background information.  They provide examples of best practices for employers to use when screening applicants and employees.

Michael A. Shadiack, a partner in Connell Foley’s Labor and Employment Law practice group, will be giving an in-depth presentation about background checks on June 13, 2014.  For more information or to register for the presentation, please view the event information found on the New Jersey Business & Industry Association’s website.

New York City Sick Leave Law In Effect

On April 1, 2014, the New York City Earned Sick Time Act went into effect.  The law requires private employers to provide paid or unpaid sick leave to its employees who work more than 80 hours per calendar year in New York City.

Under the law, employers with five or more employees are required to provide at least 40 hours of paid sick leave per year to their employees.  Employers with less than five employees must provide at least 40 hours of unpaid sick leave per year.

Employees earn one hour of sick time for every 30 hours worked, up to 40 hours per year.  Employees begin accruing sick time on April 1, 2014 or their first day of employment, whichever is later.  Employers are not required to provide sick leave until July 30, 2014 or until the employee has worked for 120 days, whichever is later.

Employees are permitted to use sick leave for their own or a family member’s illness, medical treatment, or preventive medical care.  Employers are required to give written notice to their existing employees by May 1, 2014 and to their new employees upon commencement of employment.  A copy of the notice can be found here.

Please feel free to contact Connell Foley’s employment law attorneys for guidance on implementing New York City’s sick leave law or any other leave issue you may be facing.

Newark Passes Paid Sick Leave Ordinance

The City of Newark followed Jersey City’s lead as it passed an ordinance mandating certain employers to provide paid sick leave to its employees.  The Sick Leave for Private Employees ordinance requires all private Newark businesses to provide paid sick leave to their employees who work at least 80 hours per year in Newark.

Under the ordinance, employers with 10 or more employees are required to provide at least 40 hours of paid sick leave per year to their employees.  Employers with fewer than 10 employees are required to provide at least 24 hours of paid sick leave per year.  Employees who are child care workers, home health workers, and food service workers are permitted to accrue up to 40 hours of paid sick leave per year, even if the employer has fewer than 10 employees.

Newark employees earn one hour of sick time for every 30 hours worked, up to 40 hours per year.  Employees begin accruing sick time upon their first day of employment, but employers are not required to provide sick leave until the employee has worked for 90 days. 

The ordinance provides that employees may use paid sick time for their own or their family member’s illness.  Employers have the option of determining whether paid sick time may be used in increments of less than one day.  Employers are required to provide written, individual notice to their employees about their rights, and they also must display a poster containing notice of the ordinance.

The ordinance goes into effect on May 29, 2014.  Please feel free to contact Connell Foley’s employment law attorneys for guidance on implementing Newark’s paid sick leave ordinance or any other leave issue you may be facing.

Legislature Contemplates Bill Protecting Jobs During States of Emergency

The New Jersey Legislature is considering a Bill that would prohibit certain employment actions against employees who are affected by a state of emergency.  The Bill defines “state of emergency” as a disaster or emergency, whether natural or man-made, for which either the Governor or a municipal emergency management coordinator declares a state of emergency.

The legislation would prevent employers from discharging or taking any adverse employment action against an employee who is not working due to a state of emergency.  Employers also would be prohibited from requiring the employee to use any sick, vacation, personal, or other leave for the time he or she is not working.  The employer, however, would not be required to pay the employee if he or she is not actively working at the place of business, unless he or she is working remotely.

If an employer were to violate the legislation’s provisions, the Bill would impose a monetary penalty of up to $5000 for the first violation and up to $10,000 for each subsequent violation.  Connell Foley’s labor and employment law attorneys will continue to track this pending legislation.

New EEOC Publications on Religious Garb and Grooming

Last week, the EEOC issued two new publications addressing religious garb and grooming in the workplace.  The guides are designed to provide practical advice to employers and employees regarding the applicable law and case examples.

The publications clarify that Title VII employers must make exceptions to their general dress and grooming policies for those applicants and employees who adhere to religiously-mandated dress and grooming practices.  The publications state, however, that employers need not permit such exceptions if they would pose an undue hardship, such as a safety, security, or health concern.  As set forth in the publications, employers are not permitted to segregate employees based on their religious garb by, for example, assigning an employee to a non-customer contact position.  Moreover, employers cannot engage in disparate treatment, retaliation, or harassment based on religious belief or practice.

Employers may need to update their employee handbooks and workplace policies in order to reflect this new guidance from the EEOC.  Please feel free to contact Connell Foley’s employment law attorneys for assistance in implementing these guidelines and any other workplace policy issue your company may be facing.

Affordable Care Act Mandate Delayed for Employers

The Obama administration has announced that it is delaying the employer mandate for implementing certain provisions of the Affordable Care Act (“ACA”).  The ACA requires certain employers to provide healthcare coverage to their full-time employees.  The employer mandate originally was supposed to take effect in January 2014 but was delayed to January 2015 this past summer.  On Monday, February 10, 2014, the administration made further extensions.

Under these extensions, employers with between 50 and 99 employees now do not need to comply with the coverage requirement until 2016 (formerly 2015), but they face reporting requirements in the meantime.  Employers with 100 or more employees must offer coverage to 70 percent of their full-time employees by 2015, and, by 2016, they must provide 95% of their full-time employees with coverage.  Employers who fail to abide by these provisions face tax penalties.

The Obama administration stated that these delays provide “transition relief” for employers to adjust to the new requirements.  Connell Foley’s employment law attorneys welcome the opportunity to counsel employers regarding the ACA employer mandates.

NLRB Proposal: Amend Procedures for Representation Cases

Yesterday, the National Labor Relations Board (“NLRB”) announced that it is reviving a proposed rule to change its procedures governing union-representation cases. 

The current process for a union election requires at least 30 percent of a company’s employees to file a petition with the NLRB showing interest in forming a union.  The employer and union then form an agreement for the election procedures, or the NLRB Regional Director orders the election and establishes conditions for the process.  Thereafter, the election is held typically within 30 days of the Director’s order, but the election may be postponed if either the employer or the union files a charge alleging the other party engaged in conduct that would interfere with the employee’s free choice in the election.

The NLRB intends the proposed amendments to serve as a mechanism for streamlining the union-election process and reducing election-related litigation.  Under the amended procedure, employers would have to delay legal challenges to the voting process, provide the union with its employees’ e-mail addresses and telephone numbers, and allow electronic filing of election materials.  The parties would also be under tighter deadlines for pre-election procedures.

Legal experts, including former NLRB Member Brian Hayes, opine that the election time period – from the date when workers file the petition to the actual voting date – would be significantly shortened as a result of these changes, thus giving rise to the terms “ambush” and “quickie” elections.  That shortened time period could have a significant impact on employers, as it would give them less time to inform their employees of the disadvantages of belonging to a union and to seek to persuade them to remain non-unionized.

The proposed changes resurrect the identical amendments the NLRB sought to implement in June 2011.  At that time, the NLRB published a notice of proposed rulemaking (“NPRM”), considered the input provided in response to the NPRM, and adopted a final rule.  Thereafter, in 2012, the District Court for the District of Columbia held the final rule invalid, indicating that it had been adopted without the requisite valid quorum.  Although the NLRB appealed the ruling, it later entered into a joint stipulation dismissing the appeal on December 9, 2013.

In connection with the current NPRM, the NLRB invites the public to comment on the proposed changes by April 7, 2014.  The NLRB will hold a public hearing to discuss the proposed amendments during that week.  Employers should stay tuned for new developments as the proposed rule, if adopted, will require employers to make significant changes to the way in which they approach elections.  The labor and employment attorneys at Connell Foley welcome the opportunity to counsel employers regarding these NLRB changes and any other NLRB matter.

NJLAD Amendment: Pregnancy is a Protected Category

On January 21, 2014, Governor Chris Christie signed into law the New Jersey Law Against Discrimination amendment prohibiting pregnancy discrimination in the workplace.  The amendment protects those who are “affected by pregnancy” and requires employers to provide those employees with workplace accommodations.  The amendment is effective immediately and applies to all New Jersey employers.

New Jersey employers should promptly update their employee handbooks and policies to reflect this new law.  They should also provide training for their managers to inform them of the changes this amendment entails.  Connell Foley’s employment law attorneys welcome the opportunity to assist employers in implementing these changes.

Effective Today: Jersey City Paid Sick Leave Ordinance

Jersey City passed Ordinance No. 13-097, which requires all Jersey City businesses with 10 or more employees to provide paid sick leave to its employees.  Employers with less than 10 employees must provide its employees with unpaid sick leave.

The ordinance applies to all full-time, part-time, and seasonal workers who work 80 hours in a calendar year in Jersey City.  Employees earn one hour of sick time for every 30 hours worked, up to 40 hours (or 5 days) per year.  Although employees begin accruing sick leave when they start working, employers are not required to give employees sick leave until they have worked for 90 days. 

Employees may use sick time in hourly increments, or the smallest unit of time the employer uses to account for absences or other time off.  They may use sick time for their own or a family member’s illness or preventative care.

Employers are required to provide written, individual notice to each of its employees about employee rights under the law.  Employers also must display a poster containing notice of the ordinance.

A copy of the ordinance can be found here.

Please feel free to contact Connell Foley’s employment law attorneys for guidance on implementing Jersey City’s sick leave ordinance or any other leave issue you may be facing.

Connell Foley Partner, Michael A. Shadiack Will Be Presenting at the NJBIA Human Resource Seminar

On February 14, 2014, Michael A. Shadiack will be presenting "The Right Decision: Exempt Versus Non-Exempt" addressing worker classification issues at the NJBIA Human Resource Seminar in Eatontown.

Click here for more information about this seminar

Connell Foley Partner, Michael A. Shadiack Will Be Presenting at the National Business Institute Seminar

On February 19, 2014, Michael A. Shadiack will be presenting "Tips for Employers When Drafting and Updating Employee Handbooks," at the National Business Institute Seminar in Newark.

Click here for more information about this seminar

New Jersey and New York Increase Minimum Wage

Effective January 1, 2014, the minimum hourly wage for non-exempt employees increased in both New Jersey and New York.  In New Jersey, the minimum wage increased from $7.25 to $8.25 per hour.  In New York, the minimum wage increased from $7.25 to $8.00 per hour.  Employers need to be aware of these changes and must pay their non-exempt employees no less than that minimum hourly wage for each regular hour worked.

Please feel free to contact Connell Foley’s employment law attorneys for guidance on implementing the minimum wage increase or any other wage and hour issue your company may be facing.

2014 New Jersey Employer To-Do List

Additional Update to Proposed New NJLAD Category

On January 6, 2014, the New Jersey Assembly passed Bill No. S-2995, which would amend the New Jersey Law Against Discrimination to include pregnancy as a protected category, by a vote of 77-1.  Previously, on November 18, 2013, the New Jersey Senate unanimously passed the bill.

If Governor Christie signs the Bill, it will:  (1) prohibit employers from treating women affected by pregnancy or childbirth less favorably than other employees similarly situated in their ability or inability to work; (2) require employers to provide reasonable accommodations for pregnancy-related needs when the employee requests accommodation pursuant to her physician’s advice; and (3) prohibit employers from penalizing, in the terms, conditions, or privileges of employment, pregnant employees who request or use accommodations.

The Bill is pending Governor Christie’s review and signature.