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This article was written by Janine Fletcher-Thomas and Matthew Luzadder, and originally posted on Kelley Drye’s Labor Days Blog.

In August 2018, Illinois governor Bruce Rauner signed House Bill 1595 (“HB 1595”) amending the Illinois Nursing Mothers in the Workplace Act (the “Act”) to provide paid break time to nursing mothers “as needed” to express milk during work hours. The new requirement took effect immediately, and applies to all Illinois employers with more than five employees.

HB 1595 changes the Act in the following ways:

  • Nursing breaks “may” still run concurrently with other breaks. The prior version of the Act stated that the break time “must, if possible” run concurrently with any break time already provided.
  • Reasonable lactation breaks must be compensated. In light of the Act’s “as needed” language, and absent additional guidance from the State, employers should consider following the most expansive approach, i.e., granting nursing mothers paid break time when requested to express milk.
  • In addition, the amendment specifies that the reasonable, now paid, breaks requirement runs only “for one year after the child’s birth.”
  • Finally, the original Act excused employers from providing additional break time for nursing/expressing employees “if to do so would unduly disrupt the employer’s operation.” HB 1595 changed that affirmative defense language; now, in order to be excused from the additional paid breaks requirement, Illinois employers must establish “undue hardship,” a more demanding standard borrowed from the Americans with Disabilities Act and the Illinois Human Rights Act (“IHRA”). Under the IHRA, “undue hardship” is defined as an “action that is prohibitively expensive or disruptive” when considering its nature and cost, the overall financial resources of the facility, the overall financial resources of the employer, and the type of operation of the employer. The employer bears the burden of proving an undue hardship. Therefore, employers should take a considered approach when rejecting break time for expressing milk based on undue hardship to the employer.

Remember the Affordable Care Act (“ACA”) requires employers to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” See 29 U.S.C. 207(r).

Since the amendment is now in effect, Illinois employers should review their current nursing policy to ensure it complies with the recent amendment. If not, employers should revise it as soon as possible.

This article was originally written by Jennifer Fischer and posted on Kelley Drye’s Labor Days Blog.

Effective October 29, 2018, the New Jersey Sick Leave Law requires employers to allow employees to accrue 1 hour of earned sick leave for every 30 hours work, up to 40 hours each year.  The law permits employers to create policies that provide additional leave time.  Here is a link to the law from the State of New Jersey Department of Labor and Workforce Development website.

Since we originally posted about the Paid Sick Leave Law, we’ve received a number of questions about how the Sick Leave Law will impact various employers.  Here are some FAQs that we’ve received.   Have a question that we didn’t cover?  Let us know.

Q: When does the law go into effect?
A: October 29, 2018.

Q: Is there an exception for small businesses?
A: No.  All employers are required to provide their employees with earned sick time.

Q: Are there any regulations for this new law?
A: The Department of Labor and Workforce Development prosed new regulations in September.  A public hearing will be held on the proposed new rules will be held on November 13, 2018.  Written comments must be submitted by December 14, 2018.

Q: Some of our employees work part-time.  Do they earn the same amount of sick time as full-time employees?
A: All employees, regardless of full-time or part-time status, earns 1 hour of paid sick leave for every 30 hours that they work.

Q: Our employees live in New Jersey but our office is not located in New Jersey.  Do we have to comply with the new paid sick leave law?
A: No.  The paid sick leave only applies to employees working in New Jersey.

Q: Do we need to offer paid sick leave to the independent contractors that work for us?
A: According to the new law, all “employees” must be allowed to earn paid sick leave.  The law defines “employee” as “an individual engaged in service to an employer in the business of the employer for compensation.”

However, the proposed regulations suggest that the “ABC Test” found in N.J.S.A. 43:21-19(i)(6)(A), (B), and (C) be used to determine whether an individual is an employee or an independent contractor under the new paid sick leave law.

Q: We employ per diem health care workers.  Are they exempt from coverage?
A: It depends.  The new law covers “employees” and the definition of “employee” “does not include . . . a per diem health care employee.”  A “per diem health care employee” means:
(1) health care professional licensed in the State of New Jersey employed by a health care facility licensed by the New Jersey Department of Health;
(2) any individual that is in the process of applying to the New Jersey Division of Consumer Affairs for a license to provide health care services who is employed by a health care facility licensed by the New Jersey Department of Health; of
(3) any first aid, rescue or ambulance squad member employed by a hospital system.

Additionally, a “per diem health care employee” “shall not include any individual who is certified as a homemaker-home health aide.”  This means homemaker-home health aides are considered “employees” under the NJ Paid Sick Leave law and must be covered, even if they are per diem employees.

Q: Our employees earn money based on commission or tips.  How will do we pay them for their paid sick leave days?
A: The law states that employees must be paid for earned sick leave at the same rate of pay with the same benefits as the employee normally earns, “except that the pay rate shall not be less than the minimum wage required for the employee pursuant to section 5 of P.L.1966, c.113.”

The new proposed regulations suggest that “where an employee is paid by commission, whether base wage plus commission or commission only, the employer must pay the employee during earned sick leave an hourly rate that is the base wage or the State minimum wage rate, whichever is greater. . . When an employee is paid on a piecework basis, . . . to calculate the employee’s rate of pay for earned sick leave, the employer shall add together the employee’s total earnings for the seven most recent workdays when the employee did not take leave and divide that sum by the number of hours the employee spent performing the work during workdays.”

This post was written by Matthew C. Luzadder and Janine Fletcher and originally posted on Kelley Drye’s Labor Days Blog.

Medical marijuana occupies a gray space within the United States. Marijuana is an illegal drug under federal law and is included on the Drug Enforcement Administrations’ Schedule I, along with heroin and LSD. The drugs on this schedule are considered to have “no currently accepted medical use and a high potential for abuse.” In spite of the federal prohibition, thirty states have passed some form of legislation allowing for the medical use of marijuana.

This conflict between state and federal law may cause employers confusion—especially in states with expansive disability protections. For example, the New Jersey Law Against Discrimination (“NJLAD”) which provides extensive protections for individuals with disabilities. The New Jersey Compassionate Use Medical Marijuana Act (“NJCUMMA”) supplements the NJLAD by stipulating that employees using marijuana for a medicinal purpose are considered to have a disability and such use is protected. These protections, of course, do not force employers to allow employees to use marijuana at work but do pose a dilemma when it comes to workplace drug testing. Many companies require employees to pass drug tests for federally prohibited narcotics. However, the NJLAD requires employers to provide reasonable accommodations to disabled individuals. Since the NJCUMMA classifies medical marijuana users as disabled, is a drug test a violation of their accommodations?

Continue Reading Altered State: Navigating the Haze Around Medical Marijuana in the Workplace

This post was written by Barbara E. Hoey and originally posted on Kelley Drye’s Labor Days Blog.

On Friday, July 27, after a 3 week trial in Manhattan , a jury awarded $1.25 million in damages to Enrichetta Ravina, a former professor at Columbia University Business School, who claimed that she was denied tenure and forced to resign in retaliation for complaining that a senior professor, Geert Bekaert, had sexually harassed her.  Professor Bekaert will owe her $500,000 in punitive damages, and Columbia will owe $750,000 in punitive damages.

Ravina first prevailed Thursday on her retaliation claims against Bekaert and against Columbia based on his conduct.  The jury also held Thursday that Bekaert, but not Columbia, could be held liable for punitive damages.  Jurors rejected Ravina’s gender discrimination claims against both.  The money verdicts then came in on Friday.

Interestingly, the jury found that there was no sexual harassment or gender discrimination.  The verdict was on the retaliation claims.  The jury also did not give the plaintiff the back pay and front pay she had sought.  They awarded only punitive damages, against both defendants.

This was a hard fought case, and both the university and Professor Bekaert continue to vigorously deny plaintiff’s allegations.  Very briefly, plaintiff, who had once worked closely and claimed that she was mentored by Bekaert, alleged that the relationship went sour after she rejected his sexual advances.  She claimed that he unfairly stalled her research, criticized her, and derailed her bid for tenure.  This all began in 2014, and by 2016 her tenure bid was over and she was forced to leave.

She alleged that she reported the harassment to Columbia, but that the university did not do enough to address it.

Columbia and Professor Bekaert denied there was any romantic relationship, and maintained throughout that the plaintiff was using the allegations as an excuse for her poor academic performance and reviews.  Once she saw that she was not getting tenure, according to defense attorneys, this was her ‘backup plan’.  The Defendants’ position has been consistent, that they did nothing unlawful and Columbia noted that its decision to deny Plaintiff tenure was upheld as lawful.

However, one key piece of evidence seemed to be a series of emails which Bekaert had written about the plaintiff, where he made very critical comments about Ravina and her work.

Plaintiff was also able to secure a good position at Northwestern University, where she earned more than when she left Columbia.  That is likely why the jury decided not to award her compensatory damages.

Ravina’s attorney, David Sanford of Sanford Heisler Sharp LLP, said in a statement Friday that the award “should send a clear message to Columbia University and the world of higher education that workplace retaliation and abuse of power in academia will not be tolerated.”

On that point – I agree with plaintiff’s counsel.  This verdict should send a message, not just to academia, but to all employers :

What is that message?

  1. All companies and institutions need to be on notice that behavior that could be perceived as ‘harassing’ or ‘bullying’, particularly when directed by a superior against a lower level employee of another race or gender, is a red flag.  What the boss may regard as ‘tough’ or ‘harsh’, a jury could see as discrimination or harassment.
  2. Be careful with email and text messages.  These can be preserved, and abusive words preserved in an email will hold a lot of sway with a judge or jury. Emails remain the most potent piece of evidence in employment litigation today , and everyone needs to be cautious about what they say via email and text.  One “nasty” email can influence a jury, as may have happened here.
  3. Employers need to learn to empower their bystanders.  An employer cannot always prevent a bad actor from behaving badly.  However, an employer can empower those who are aware of or witness that behavior to report it, before it goes too far.
  4. Be sure to investigate and respond to internal complaints promptly, and carefully document those investigations.  No one knows what happened at Columbia except those involved in that situation, but again – juries today will be expecting to see evidence that there was a prompt and thorough response to any claim.  Now, even more than before the “ME Too” era, consider bringing in outside experts to investigate when necessary, in order to avoid the appearance of bias.  And, where there is bad heavier take effective action to stop it.
  5. Individual executives need to remember that New York State and City law (like many other local laws) allows for individual liability if you are found to have engaged in harassment, discrimination, or retaliation.  Like the defendant professor in this case, you could be looking at a sizeable award against you personally, if a jury believes that you broke the law.
  6. Finally, be careful of retaliation claims, as they are serious business and present real liability.  Again, without commenting on what happened here, clearly the jury felt that this plaintiff was treated poorly after she made her complaint – even though they did not credit the complaint itself!  That is very frustrating.  This is not the first (and will not be the last) case where a jury find that there was NO discrimination, but also finds that the plaintiff was unlawfully retaliated against for making the complaint.

In conclusion, the only real solution here is education and training.  Beginning this fall, New York mandates sexual harassment training for all employees. Take this message and if you have not already done so, invest in live training for your executives. It will be well worth the time and effort.

This post was written by Steven R. Nevolis and Mark A. Konkel and originally posted on Kelley Drye’s Labor Days Blog.

For decades, technological innovation has changed our world at a rapid pace. Across industries and departments, businesses have a plethora of new and exciting technology and tools they can utilize to deliver products and services more effectively and efficiently to their customers. This is especially true of today’s human resources department and function. Recent trends have shown an increasing number of technology innovations aimed at HR professionals that offer to help more effectively recruit employees, manage workforce productivity, and address employee and labor relations issues as they arise. However, as businesses begin to adopt these new methods of workforce management, human resource professionals must stay ahead of the curve to ensure this technology is being used effectively and, in some cases, legally.

Technology Ahead of Laws and Regulations – Or Is It?
It’s generally accepted that technological advancement will outpace the legislatures and courts tasked with regulating that technology. But that isn’t to say the legislatures and courts won’t catch up. Just recently, we have seen social media enter the spotlight as the newest target of potential government regulation. And with the European Union enacting the General Data Protection Regulation, companies must be vigilant in how they collect and maintain job applicant information, or face the possibility of severe fines. As fast as new technology is introduced to the market, regulators are working to act just as quickly to mitigate potential harm from that technology.

However, one thing that may be lost in the shuffle is the unintended consequences of some of these technologies, and how that may expose businesses to potential claims under existing laws. Take for example a business that decides to shift its recruiting efforts from a more human-driven approach to a process that uses data to steer the course. There is a trove of data points that a company can collect on a job applicant, such as experience and education. But if HR allows these data points to drive the recruiting and interview process, they may be allowing this data to exploit innate biases, albeit unintentionally. If a data-driven process leans too heavily on quality of education, the process may filter out those candidates who may not have had a ready access to high-quality education, but still may be a good fit for the job. HR professionals need to be careful in implementing these types of processes and work to eliminate these issues, otherwise they may face heightened scrutiny. Continue Reading Technology Ahead of Laws and Regulations – Or Is It?

This post was written by Jennifer Fischer and Mark A. Konkel and originally posted on Kelley Drye’s Labor Days Blog.

On March 26th, the New Jersey Assembly passed legislation that requires employers in New Jersey to provide earned sick leave to their employees. The legislation was then passed by the New Jersey Senate on April 12th, and now heads to Governor Phil Murphy’s desk for signature. He tweeted out that he intends to sign the bill into law on May 2nd. He believes that enacting the law will “support working families and strengthen our economy.”

What is the New Bill?

The proposed legislation allows New Jersey workers to accrue paid sick leave for every 30 hours worked. The number of hours of leave that can be accrued per year is capped at 72 hours. There is no minimum amount of time an employee must be employed before they are able to start accruing paid sick leave. Employers are required to give employees the same pay rate and benefits for earned sick leave that the employees would regularly receive for working hours. Employers may offer to pay workers for their unused earned sick leave in the final month of the year. The sick leave can be used for physical and mental illness, to care for an ill or injured family member, or to attend a school-related event for a child. Employers are prohibited from retaliating or discriminating against an employee for using their paid sick leave. Employers also must not discipline, discharge, demote, suspend, or take any other adverse action against employees who are using their sick leave.

Why was this Bill Passed?

The intent of the new legislation is to ensure an employee does not have to choose between a paycheck and going to work sick. Governor Murphy tweeted “No one should lose a day’s pay due to sickness or because a loved one has fallen ill.” Continue Reading What to Expect from the New Jersey Paid Sick Leave Bill

This blog was written by Barbara E. Hoey and originally posted on Kelley Drye’s Labor Days Blog.

On April 12, 2018, New York Governor Andrew Cuomo signed into law the New York State budget bill, which makes some big changes in the obligations of New York employers relative to sexual harassment.

The new law has both immediate and rolling implications for all New York employers.

EFFECTIVE IMMEDIATELY (I.E., RIGHT NOW)

The New York State Human Rights law now extends protections to certain non-employees, including contractors, subcontractors, vendors, consultants, and other persons providing services pursuant to a contract.

This means that employers may now be held liable for the sexual harassment of non-employees if the employer, its agents, or supervisors knew or should have known that the non-employee was subjected to sexual harassment and the employer failed to take appropriate corrective action.

This is a significant change in the law and employers should make sure that Human Resources and managers are aware of it.


ROLLING PROVISIONS

July 11, 2018: No NDA’s and No Mandatory Arbitration – New York employers will be prohibited from using nondisclosure clauses in harassment settlements, unless the complainant prefers that the settlement be confidential. Like the OWBPA, the agreements must also give the complainant 21 days to consider signing, and 7 days to revoke.

New York employers may not require mandatory arbitration of claims of workplace sexual harassment, to the extent this is “not inconsistent with federal law.”

October 9, 2018: Mandatory Training Provision Roll Out – Employers must distribute written anti-harassment policies in the workplace; and Employers must conduct annual anti-harassment training for all employees, based on models to be developed and published by the New York State Department of Labor and the New York State Division of Human Rights.

The model training must include: (1) an explanation of sexual harassment; (2) examples of conduct that would constitute unlawful sexual harassment; (3) information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims; and (4) information concerning employees’ rights of redress and all available forums for adjudicating complaints. The training must also include information addressing the conduct and additional responsibilities for supervisory personnel.

January 1, 2019: Government Contractor Affirmation – Employers who wish to bid on certain state contracts will be required to affirm that the employer has implemented a written policy addressing sexual harassment in the workplace and that it provides annual sexual harassment prevention training to all of its employees. Continue Reading “Times Up” for New York Employers – Governor Cuomo Signs Historic Anti-Harassment Legislation

This post was written by Mark A. Konkel and Steven R. Nevolis and originally posted on Kelley Drye’s Labor Days Blog.

You can count Congress among the institutions caught in the ground swell of the #MeToo movement, and they’re using the tax code to prove it.

Buried in the various changes of the new tax bill, Congress included Section 13307, titled “Denial of Deduction for Settlements Subject to Nondisclosure Agreements Paid in Connection with Sexual Harassment or Sexual Abuse.” Specifically, Section 13307 amends the Internal Revenue Code Section 162(q) to state:

No deduction shall be allowed … for (1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement or payment.

Effective for amounts paid or incurred after December 22, 2017, this deceptively complex provision will have broad impact for businesses attempting to resolve sexual harassment claims.

Generally speaking, the old language of Section 162 allowed payments made under settlement agreements and attorneys’ fees paid in connection with the defense of an action as tax deductible for businesses as a business expense.

However, from the plain language of this new provision, businesses faced with the prospect of settling a sexual harassment claim will now have to make a choice – are they to choose between their bank account or their public image?

Continue Reading The Rising Cost of “Hush Money” – Congress Strips Tax Incentives for Sexual Harassment Nondisclosure Agreements

This post was written by Barbara E. Hoey, Mark A. Konkel, Steven R. Nevolis and Diana R. Hamar and originally posted on Kelley Drye’s Labor Days Blog.

As January draws to a close, New York employers are confronting the reality of many new laws and regulations that govern the employment relationship – from the new Paid Family Leave law, to the new federal tax law. We are also tracking several newly-signed and proposed pieces of legislation, which could further complicate the employment relationship in New York.

Here is what there is so far:

New York Paid Family Leave

As we previously reported, effective January 1, most employers in New York State will be covered by the new Paid Family Leave law (“PFL”). Under the PFL, employers will need to provide eligible employees with 8 weeks of family leave with salary reimbursement capped at 50% of the state’s average weekly wage. This will increase on an annual sliding schedule until 2021 when employees will be entitled to 12 weeks of family leave with salary reimbursement capped at 67% of the state’s average weekly wage.

Eligible employees will be permitted to take leave to care for a qualified family member’s serious medical condition, to care for the birth or placement of a child, or for a qualified military exigency. Leave under the PFL will overlap with an employee’s leave under the Family and Medical Leave Act under certain circumstances.

For a more extensive analysis of the PFL, its requirements (including employer notice requirements), and suggested steps for compliance, we encourage you to read our previous blog post on this law: “A New Headache – New York’s Paid Family LeaveContinue Reading The New Year Brings New Rules to New York

This post was written by Barbara E. Hoey and Diana R. Hamar and was originally posted on Kelley Drye’s Labor Days Blog.

Happy Halloween New York City Employers!

Just in time to scare even large employers, beginning October 31, 2017, it will be against the law for employers in New York City to ask about, rely on, or verify a job applicant’s salary history during the hiring process. As discussed in detail in our prior posts, this new legislation also permits disgruntled applicants to pursue claims against an employer for violations of the law either with the New York City Commission on Human Rights or directly in court.

With only a few weeks left before the law goes into effect, employers in New York City should take care in reviewing their hiring policies and practices to ensure compliance with the law.

The New Law

First, this law applies to all employers, regardless of size, in New York City.

The new law prohibits employers from:

(1) “Inquiring about” an applicant’s salary history throughout the entire employment process; and/or

(2) “Relying” on the salary history of a job applicant, when determining an applicant’s salary amount at any stage in the employment process, including when negotiating a contract.

The law defines “salary history” broadly to encompass not just wages but also benefits and any other form of compensation.

It also bans employers from searching publicly available records to obtain an applicant’s salary history.

There are limited exceptions to the ban:

  • First, an employer may consider an employee’s salary history if the applicant voluntarily disclosed his or her salary history “without prompting.
  • Second, an employer may discuss salary, benefits and other compensation expectations with the employee as long as the employer does not inquire about salary history.
  • Third, the definition of “salary history” does not include any “objective measure” of the applicant’s productivity, such as revenue, sales, or other production reports.

The amendment also excludes: (1) employers acting pursuant to a law authorizing the disclosure or verification of salary history for employment purposes; (2) current employees applying for internal promotions or transfers; or (3) public employee positions for which compensation is determined pursuant to procedures established by collective bargaining.

If an employer is found to have violated the law, the New York City Commission on Human Rights may impose a civil penalty of up to $125,000 for an unintentional violation and up to $250,000 if the violation is willful and malicious. In addition to civil penalties, an individual who is successful in a civil lawsuit may recover compensatory damages and attorney’s fees.

New York City Commission on Human Rights Fact Sheets

With the effective date of the amendment looming, the New York City Commission on Human Rights issued two fact sheets−one directed to employers and one directed to job applicants − summarizing the key provisions and exceptions to the law. The fact sheets do provide a few illustrative examples that aid in interpreting the law:

  • The employer fact sheet clarifies that the law applies to all employers in New York City regardless of size.
  • The “job applicant” fact sheet states that “most applicants” are protected, regardless of whether the position is full-time or part-time.
  • The law applies to internships as well as independent contractors who do not have their own employees.
  • The fact sheet does not clarify whether the law applies to nonresident applicants. However, we would not advise taking a chance on this. All New York City job applicants should be considered covered.

Guidance for Employers

In advance of the law’s October 31, 2017, effective date, employers should do the following:

  • Review and Revise Forms and Portals – Remove any inquiries regarding salary history from employment applications, background check forms, online portals, or any other forms used during the hiring process.
  • Train – Inform not just recruiting and those in HR, but everyone who gets involved in the interview process, to refrain from directly questioning applicants about their salary histories.
  • Inform contractors and vendors – Employers need to communicate these new obligations to third parties or outside vendors who participate in the hiring process, such as placement firms, temp agencies and recruiters and confirm that contractors and vendors are in compliance with the law.
    • Put these instructions in writing, so you have proof you have told your contractors they need to comply with the law.
  • Background Checks – It is imperative that background checks exclude any inquiries regarding salary history. This is particularly important, since employers who use third-party vendors for background checks typically only see the results of the background check rather than the initial inquiries posed to an applicant. Again, tell your vendors to follow the law.
  • Job postings – If you are posting on job sites like Monster, etc., make sure there are no requests for salary information on those sites.

Continue Reading The Salary Scare – The City’s Salary Ban Law Takes Effect