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.