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.