NJ Department of Labor Announces Posting and Distribution Requirement Date for Gender Equity Poster

In its December 2013 update, the New Jersey Department of Labor (“DOL”) announced that it will publish the notice of adoption of the so-called “gender equity notice” in the New Jersey Register’s January 6, 2014 issue.  The gender equity notice was originally proposed on January 7, 2013. 

The January 6, 2014 publication will trigger the posting and distribution requirements of the gender equity notice.  Accordingly, as of January 6, 2014, all New Jersey employers of 50 or more employees (“covered employers”) will be required to adhere to these requirements.  Specifically, beginning on January 6, 2014, covered employers are required to do the following:

1. Post the gender equity notice adopted by the DOL in a conspicuous place at each of its workplaces - such place(s) must be accessible to all of the covered employer’s employees.  The notice may be posted on the covered employer’s internet or intranet site if such site is accessible to all of its employees and if it is for the exclusive use of such employees.
2. Distribute a hard copy of the gender equity notice to any employee hired on or before January 6, 2014 by February 5, 2014.
3. Distribute a hard copy of the gender equity notice to any employee hired after January 6, 2014 at the time of hiring.
4. Distribute a hard copy of the gender equity notice to all employees on an annual basis by no later than December 31^st.
5. Distribute a hard copy of the gender equity notice to any employee upon initial request.

A covered employer may satisfy these distribution requirements via (a) e-mail; (b) printed copy; or (c) internet or intranet posting, so long as the internet or intranet site is accessible to all employees, the site is for all employees’ exclusive use, and the covered employer notifies the employees of the posting.

Finally, the distributed gender equity notice is required to be accompanied by an acknowledgment, which is to be executed by the employee and returned to the covered employer within 30 days of receipt.  This acknowledgment must state that the employee has received, read and understood the gender equity notice.

As timely adherence to the posting and distribution requirements is mandatory for covered employers and the DOL has released the gender equity notice in advance of the January 6, 2014 trigger date, covered employers should take steps today to ensure compliance. 

Proposed New Bill Would Protect Unpaid Interns In The Workplace

On November 18, 2013, Bill No. S-3064, which would permit unpaid interns to seek relief from purported harassment, discrimination and retaliation under the Law Against Discrimination, the Conscientious Employee Protection Act, and the Worker Freedom From Employer Intimidation Act, was introduced.  Senator Nia Gill (Essex) sponsored the bill.

Presently, only one state - Oregon - provides such protections to unpaid interns.  However, at least one other state - New York - is currently considering similar protections.  Recent case law has increased the profile of the unique situation of unpaid interns, who often work side-by-side with paid colleagues, and lack not only compensation, but also workplace rights.

Bill S-2995 has not yet been assigned to a Senate committee.

Update to Proposed New NJLAD Category

On November 7, 2013, the Senate Labor Committee unanimously endorsed Bill No. S-2995, with amendments.  This bill would add a new protected category - pregnancy - to the New Jersey Law Against Discrimination.  The term “pregnancy” would encompass not only the actual pregnancy, but childbirth and related medical conditions, such as childbirth recovery.

           

The committee amendments include (1) specifying the type of workplace accommodations to be offered; (2) removing the requirement that employers provide leave in each case where accommodation is not feasible; (3) indicating that if an employer can show undue hardship with respect to the requested accommodation, there will be no requirement to provide such accommodation; (4) specifying the various factors to be considered in determining undue hardship; (5) prohibiting pregnant employees from receiving less favorable accommodations or leave than their non-pregnant co-workers who are similarly situated with respect to ability or disability to work; and (6) stating that the bill does not impact employee rights to paid or unpaid leave.  

The Bill is presently pending.

Proposed New NJLAD Category

On September 30, 2013, Bill No. S-2995, which would add a new protected category - pregnancy - to the New Jersey Law Against Discrimination, was introduced to the New Jersey Senate by Senator Loretta Weinberg (Bergen).  Under the proposed amendments, it would be unlawful for an employer to treat female employees affected by pregnancy in a less favorable manner than similarly situated persons who are not affected by pregnancy.  Employers would be required to provide reasonable accommodations, upon request of the affected employee with advice of the employee’s physician. In addition, the employer would be prohibited from penalizing an employee who utilized such an accommodation.  Moreover, in the event that an accommodation was deemed not feasible, the employer would be prohibited from penalizing an employee who, as a result, was required to take time off from work, as certified to by her physician. Although the proposed category is identified as “pregnancy,” these amendments would be applicable to pregnancy and childbirth, as well as medical conditions related to both.  Bill S-2995 has been referred to the Senate Labor Committee.

Vance v. Ball State Univ. et al., 570 U.S. ____ (2013).

On June 24, 2013, the Supreme Court of the United States issued its decision in Vance v. Ball State University.  The Court had decided to hear the case in order to clarify the “supervisor” liability rule that it had established in 1998 in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth.  According to those cases, an employer is vicariously, and strictly, liable for a supervisor's workplace harassment of, and discriminatory conduct directed toward, employees. An employer, on the other hand, is vicariously liable for harassment or discrimination inflicted by employees' co-workers only if the employer was negligent in either discovering or remedying the offending conduct. The later negligence standard is much more favorable to employers; therefore, whether an alleged harasser was a supervisor or not is often crucial to the defense of an employment discrimination case. 

In Vance, the Court was asked to resolve the question of who is a “supervisor” and specifically decide whether (i) it encompasses all individuals who have the authority to direct and oversee an employee’s daily work, or (ii) is limited only to those individuals who have the power to “hire, fire, demote, promote, transfer, or discipline” an employee.  The Court found that the latter definition described a supervisor, holding that a supervisor is a person empowered by an employer “to take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’” Id. at 9 (slip opinion) (quoting Burlington Industries, Inc., 524 U.S. 742, 761 (1998)).

This Court found that this definition is one that can “readily be applied” and will therefore provide great assistance to litigators.  Now, in most cases “it will be known even before litigation is commenced whether an alleged harasser was a supervisor, and in others, the alleged harasser’s status will become clear to both sides after discovery.”  This resolution of a person’s status as a supervisor allows the parties to “assess the strength of a case and to explore the possibility of resolving the dispute” at an earlier date in the litigation.  Under the other approach, by contrast, the “supervisor status would very often be murky. . . .”  Id. at 20. 

The Supreme Court’s adoption of a clear and uniform standard provides a good opportunity for employers to evaluate which of their employees are supervisors and should be targeted for additional training on their responsibilities for prevention and appropriate action when harassment occurs.  It also underscores the need for strong, regular training for all employees on a company’s anti-discrimination and harassment policies and the available mechanisms for an employee to make a complaint. 

University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ____ (2013).

Title VII of the Civil Rights Act of 1964 generally prohibits employment discrimination based on employee’s race, color, religion, sex and national origin. Employees who bring lawsuits claiming employment discrimination because of their status as a member of one of these protected groups [status claims] must show that illegal discrimination was a motivating factor or a reason that they suffered an adverse employment action. This is sometimes referred to as the motivating factor test.

Employees may also bring separate claims under Title VII asserting that they were retaliated against because they filed a charge of discrimination, because they complained  about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit). Traditionally, courts have applied a “but for” test, or required the employee claiming retaliation to prove that “but for” their complaints or other protected actions, they would not have suffered an adverse employment action such as a firing, demotion, failure to be promoted or harassment.  Generally, this but for test is harder to satisfy than the motivating factor test. Therefore, employees who bring lawsuits typically prefer the motivating factor test. 

Under Title VII, Congress codified a motivating factor causation standard for status based claims. However, Congress did not codify a causation standard for retaliation claims.  The Supreme Court, in University of Texas Southwestern Medical Center v. Nassar, had to decide whether both types of claims, retaliation claims and status based claims, should have the same causation standard. A divided Supreme Court concluded that, despite being part of the same statute, retaliation claims must still be proven “according to traditional principles of but-for causation, not the lessened [motivating factor test].”  This decision is welcome news for employers, as retaliation claims are among the most frequently asserted in the employment context both nationally and in New Jersey today.

National Labor Relations Board v. Noel Canning, No. 12-1281

On June 24, 2013, the Supreme Court also granted cert to NLRB v. Noel Canning (No. 12-1281), a case which is a major test of the Constitution’s grant of power to the President to name appointees temporarily to government posts when the Senate is in recess. 

The case is coming up from the D.C. Circuit, where the D.C. Circuit ruled that President Obama’s temporary appointments to three empty seats on the five-member NRLB (made while the Senate was on recess except for intermittent, routine sittings), were unconstitutional, thereby nullifying these appointments. 

When the Supreme Court hears the case next term, it will decide the two questions presented, plus one it has requested the parties to brief:  (1) if the President may make temporary appointments to vacant posts only at the end of the Senate’s annual sessions or also during other breaks in sessions; (2) whether the President could fill a post that became open at any time during an annual session or only those that became vacant in the end-of-session periods, and (3) whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.