What to Expect from the New Jersey Paid Sick Leave Bill

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

“Times Up” for New York Employers – Governor Cuomo Signs Historic Anti-Harassment Legislation

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

OSHA News Releases from April 1 through April 15

  • 04/13/2018 – Region 5 OSHA News Release – U.S. Department of Labor Finds Ohio Contractor Continues To Expose Roofers to Falls and Other Safety Hazards
  • 04/12/2018 – Region 2 OSHA News Release – U.S. Department of Labor Cites New Jersey Plastics Manufacturer For Workplace Safety Failures, Proposes Penalties of $435,679
  • 04/11/2018 – Region 4 OSHA News Release – U.S. Department of Labor Partners with Landscape Industry Associations and Employers to Sponsor Southeast Safety Stand-Down Events Focusing on Preventing Heat-Related Illnesses and Landscaping Injuries
  • 04/09/2018 – Region 1 OSHA News Release – Lynnway Auto Auction to Correct Hazards, Implement Safety Measures, And Pay Penalties in U.S. Department of Labor Settlement
  • 04/06/2018 – Region 4 OSHA News Release – U.S. Department of Labor Seeks to Prevent Georgia Roadway Worksite Injuries Through Safety Stand-Down Events
  • 04/05/2018 – Region 7 OSHA News Release – Grain-Handling Industry and Safety Professionals Announce ‘Stand-Up for Grain Engulfment Prevention Week,’ April 9-13
  • 04/03/2018 – Region 7 OSHA News Release – U.S. Department of Labor Cites Omaha Company for Exposing Workers To Trenching Hazards, Proposes $38,061 in Penalties

 

EEOC’s New Guidance Takes Us Back to the Basics

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

Anti-harassment policies are nothing new and we would be shocked to find an employee handbook without one.

But, have they really worked?

In the #MeToo era, it has become clear that these policies have not really been effective and employers are facing increasing scrutiny over why they cannot prevent harassment, and how they handle claims of harassment once they are filed.

Layering onto this is recent federal and state legislation, which makes harassment more expensive and public — like the federal tax law that prohibits companies from deducting harassment settlements if the settlement is subject to a nondisclosure agreement, and New York State’s anti-harassment legislation which will prohibit mandatory arbitration of those claims.

These laws coupled with the increased scrutiny make it essential for employers of all sizes to take a hard look at their anti-harassment program, and determine whether it is doing its job — namely: preventing, disclosing, and dealing with bad behavior in the workplace, before that behavior becomes a lawsuit or explodes on the front page.

So what does an effective harassment program look like and how is it implemented?

The EEOC recently published new informal guidance that is an excellent starting place for employers. Appropriately titled, “Promising Practices for Preventing Harassment,” this guidance has been in process for years and is nothing really new.

Even so, that does not make it bad. Indeed, the informal guidance should cause employers to go back to the basics. This guidance serves as a reminder for best practices and gives employers a roadmap for what the EEOC will be looking at when it is investigating harassment claims. For that reason, it is a good resource. Continue Reading

OSHA News Releases from March 16 through March 31

  • 03/28/2018 – Region 1 OSHA News Release – U.S. Department of Labor Orders Reinstatement of Massachusetts Pilot Who Lost Job after Reporting a Safety Concern
  • 03/27/2018 – Region 1 OSHA News Release – U.S. Department of Labor Cites Massachusetts Contractor for Fall Hazards at New Hampshire Work Site
  • 03/27/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Communication Tower Contractor Following Three Fatalities at Miami Work Site
  • 03/23/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Roofing Contractor For Exposing Employees to Fall Hazards, Proposes Penalties
  • 03/16/2018 – Region 2 OSHA News Release – U.S. Department of Labor Proposes Penalties for Waterloo, New York, Dairy Producer for Failing to Correct Hazards
  • 03/16/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Roofing Company After Employee Suffers Fatal Heat-Related Injury
  • 03/16/2018 – Region 5 OSHA News Release – U.S. Department of Labor and Ohio Auto Parts Manufacturer Reach Settlement Agreement, Including $1 Million Penalty
  • 03/16/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Kraft Heinz Food After Employee Injured by Machine, Proposes Penalties
  • 03/16/2018 – Region 7 OSHA News Release – U.S. Department of Labor Cites Nebraska Egg Processing Facility After Employee Fatally Injured
  • 03/15/2018 – Region 1 OSHA News Release – U.S. Department of Labor Orders JetBlue to Reinstate and Pay Back Wages and Damages to Flight Attendant
  • 03/15/2018 – Region 3 OSHA News Release – U.S. Department of Labor Recognizes BAE Systems For Excellence in Workplace Safety at Norfolk Repair Facility

OSHA News Releases from March 1 through March 15

  • 03/15/2018 – Region 3 OSHA News Release – U.S. Department of Labor Recognizes BAE Systems For Excellence in Workplace Safety at Norfolk Repair Facility
  • 03/14/2018 – Region 6 OSHA News Release – OSHA Partners with McCarthy Building Companies To Protect Employees at Christus Spohn Hospital Project
  • 03/14/2018 – Region 8 OSHA News Release – U.S. Department of Labor Proposes Penalties for Colorado Concrete Company After Employee Injured in Trench Collapse
  • 03/12/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Manufacturer For Lacking Safety Procedures After Employee Suffers Amputation
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Launches Regional Campaign In Delaware To Raise Awareness of Construction Industry Hazards
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Launches Regional Campaign in Western Pennsylvania To Raise Awareness of Construction Industry Hazards
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Cites Pennsylvania Machine Manufacturer For Exposing Employees to Chemical Hazards
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Launches Regional Campaign in Greater Philadelphia To Raise Awareness of Construction Industry Hazards
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Launches Regional Campaign In D.C. To Raise Awareness of Construction Industry Hazards
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Launches Regional Campaign in Central Pennsylvania To Raise Awareness of Construction Industry Hazards
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Launches Regional Campaign in Northwest Pennsylvania To Raise Awareness of Construction Industry Hazards
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Launches Regional Campaign In West Virginia To Raise Awareness of Construction Industry Hazards
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Launches Regional Campaign in Central Eastern Pennsylvania To Raise Awareness of Construction Industry Hazards
  • 03/09/2018 – Region 3 OSHA News Release – U.S. Department of Labor Launches Regional Campaign in Northeast Pennsylvania To Raise Awareness of Construction Industry Hazards
  • 03/09/2018 – Region 8 OSHA News Release – U.S. Department of Labor Cites Billings Company For Failing to Provide Safe Workplace for Employees
  • 03/07/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Jacksonville Utilities Contractor For Willful and Serious Safety Violations after Trench Cave-in
  • 03/05/2018 – Region 1 OSHA News Release – U.S. Department of Labor, Massachusetts Division of Occupational Safety, and Associated Subcontractors of Massachusetts Partner to Promote Workplace Safety
  • 03/02/2018 – OSHA Trade Release – OSHA Will Enforce Beryllium Standard Starting in May

 

February 2018 OSHA News Releases

  • 02/27/2018 – Region 3 OSHA News Release – U.S. Department of Labor’s Occupational Safety and Health Administration And The Clarion University Small Business Development Center Join in Effort to Improve Workplace Safety and Health
  • 02/27/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Patio and Pool Enclosure Installer Following Employee Fatality
  • 02/22/2018 – OSHA Trade Release – OSHA Renews Alliance with Performing Arts Organizations to Protect Safety and Health of Workers in Entertainment Industry
  • 02/21/2018 – Region 5 OSHA News Release – U.S. Department of Labor Cites Illinois Roofing Contractor For Exposing Workers to Falls, Proposes $281,286 in Penalties
  • 02/20/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Alabama Plastics Manufacturer Following Employee Fatality
  • 02/16/2018 – OSHA Trade Release – OSHA Renews Alliance with the International Window Cleaning Association to Protect the Safety of Industry Workers
  • 02/16/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Alabama Manufacturer for Safety Hazards, Proposes Penalties Totaling $74,833
  • 02/16/2018 – Region 5 OSHA News Release – U.S. Department of Labor and Ohio Environmental Services Company Resolve Lawsuit on Whistleblower Allegations
  • 02/16/2018 – Region 5 OSHA News Release – U.S. Department of Labor and Buckeye STEPS Renew Alliance to Improve Workplace Safety in Ohio Oil and Gas Industry
  • 02/08/2018 – Region 2 OSHA News Release – U.S. Department of Labor Reaches Settlement Agreement Resulting in Paperboard Company Paying $175,000 in Penalties
  • 02/08/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Alabama Manufacturer For Serious Safety Violations
  • 02/07/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Georgia Manufacturer for Safety Violations, Proposes $256,088 in Penalties
  • 02/05/2018 – Region 5 OSHA News Release – U.S. Department of Labor and Southern Illinois Joint Apprenticeship Program Partner to Protect Construction Employees
  • 02/05/2018 – Region 8 OSHA News Release – U.S. Department of Labor Cites Colorado Nursing Home For Workplace Violence Hazards
  • 02/02/2018 – OSHA Trade Release – OSHA and the Board of Certified Safety Professionals Form Alliance to Provide Safety and Health Information to Certification Holders

 

Add One Line in Your Employment Contracts and Policies to Reduce Exposure to Misclassification Liability

This post was written by  Michael D. Yim and originally posted on Kelley Drye’s Labor Days Blog.

Employers, even with the most robust and well-intentioned human resources departments, can still face the dreaded misclassification lawsuit for their salaried employers. In many cases, exempt employees are properly classified as executive or administrative employees. A misclassification lawsuit, however, is difficult to dismiss early because plaintiffs are afforded great latitude in crafting factual disputes that can only be resolved at trial. On top of that, plaintiffs generally bring such claims as class or collective actions – making litigation costly as well. Further compounding the problem, settlement of wage and hour misclassification cases is the preferred mode of resolution – but only after a range of damages can be made with some degree of certainty.

What if I told you that if you included one simple sentence in your employment contracts, handbooks and policies for salaried employees, it would likely reduce your exposure by approximately two-thirds in FLSA cases? For starters, it would make it easier to settle at the right amount by avoiding unnecessarily inflated ceiling for damage calculations by plaintiffs. So what are the “magic words” in this simple sentence?

For exempt employees, your salary is intended to pay for all hours worked during each pay period, regardless of your scheduled or tracked hours.

An employer’s first response is: well, isn’t that assumed for salaried employees since common sense dictates that a salaried employee means that an employee is not paid on a time basis and would be paid for all hours worked? No. This isn’t the case as more courts have presumed that, absent an express understanding, an employee’s salary only applies to the first 40 hours of a workweek as a default. This is because U.S. Department of Labor regulations are vague on how to calculate damages for misclassification cases, and courts have growingly interpreted guidance on what is called the Fluctuating Workweek (“FWW”) method of calculation for non-exempt employees – that is, counting a weekly salary to count as pay for all hours worked at a regular rate, even “overtime.”

Wait, what? In short, many courts would treat any overtime hours as unpaid as a default for calculations. Damages, therefore, would be 1.5 times the regular rate based on 40 hours (salary divided by 40 hours) for the overtime hours. See Ramos v. Telgian Corp., 176 F. Supp. 3d 181, 193, 2016 U.S. Dist. LEXIS 44321 (E.D.N.Y. 2016) (explaining that “[i]n the case of salaried, rather than hourly, employees, … the FLSA … ‘presum[es] that [] a weekly salary covers only the first forty hours, unless the parties intend and understand the weekly salary to include overtime hours at the premium rate’”).

Continue Reading

The NLRB Joins the #MeToo Movement

This post was written by Michael D. Yim  and originally posted on Kelley Drye’s Labor Days Blog.

As we previously posted, gender discrimination issues have been a hot topic at the National Labor Relations Board (“NLRB”). Now, it seems the NLRB is even more on board the #metoo movement – but with a twist, sexual harassment by unions. On February 20, 2018, the NLRB in ILA Local 28 (Ceres Gulf, Inc.) (NLRB 2018) issued a very concise, but biting decision that vacated an administrative trial court’s decision dismissing a breach of duty of fair representation case against a union for discriminating and sexually harassing a female union member. The NLRB’s rationale – the ALJ’s “credibility determinations about the [female employee’s] claim were based on sex stereotypes and demonstrated bias.” Wow. Mic drop.

In Ceres Gulf, the union operated an exclusive hiring hall which referred employees for work and training (for certification for certain jobs) based on seniority roster. The employee alleged that she made multiple requests for training and referrals. But, instead of granting her request, the union officer in charge of administering the seniority roster subjected the employee to groping and sexual propositions on at least 10 occasions. The ALJ rejected the employee’s version of the events because – wait for it:

It is simply implausible that [the employee who] appeared to be a tough woman who performs stevedoring work on the docks and previously drove a truck in Iraq, would have meekly allowed [the union officer] to harass and assault her a whopping 10 times, without an utterance. It is even less plausible that she would have tolerated such egregious misconduct to preserve a job that only paid her less than $10,000 annually. It is still less plausible that a woman, who was empowered by having two relatives holding influential union positions … would have allowed [the union officer] to repeatedly violate her. It is also implausible that, if [the union officer] withheld training because she rejected his advances from 2010 to 2015, as she alleges, he would have then enrolled her for training in June 2015 after her rejection. It is also implausible that [the employee], who claims that she was too embarrassed to complain about sexual harassment, would have not opted to address her training problems by solely complaining about [the union officer] other reportedly less embarrassing comments (e.g., his alleged comment that, as a driver, she did not require training, or that he did not want to train her to perform grimy jobs). Continue Reading

Is Misogyny Protected Activity? Part 2

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

Earlier, we blogged about James Damore, an engineer at Google who was terminated for his memo, which openly expressed his belief that women were not “biologically suited” for certain types of positions and criticism of the company’s efforts to diversify its work force.

The engineer challenged his termination by filing a charge with the National Labor Relations Board and launched a media offensive arguing that he was fired for his ‘conservative’ views.

I am pleased to report that the NLRB’s general counsel issued an advice memorandum affirming that Google was indeed acting lawfully when it terminated Mr. Damore. Among the conclusions, the NLRB General Counsel Jayme Sophir found that any employer must be given “particular deference” when it is acting to promote and comply with state and federal employment laws, and to promote diversity in their workplaces.  Thus, “employers must be permitted to ‘nip in the bud’ the kinds of employee conduct that could lead to a ‘hostile workplace’, rather than waiting until an actionable hostile workplace has been created before taking action.”

The general counsel also confirmed that the Board has already found that employee conduct, which “significantly disrupts work processes, creates a hostile work environment, or constitutes racial or sexual discrimination” it is not protected.

Using that rationale, the Board concluded that Mr. Damore’s “use of stereotypes bases on purported biological differences between women and men should not be treated differently than the types of conduct the Board found unprotected in these cases,“ as such comments “were likely to cause serious dissension and disruption in the workplace.”  Therefore, while “much of” the memorandum may have been protected, his statements about “biological differences  between the sexes were so harmful, discriminatory and disruptive as to be unprotected”.

The Board also noted that Google “carefully tailored” its message to explain Mr. Damore’s termination and to ensure employees were aware of their right to engage in protected speech.

The Takeaway for Employers – This decision confirms that, while it may be fine, there is a line which employees cannot cross when they are “protesting” employer actions with which they disagree. Employees may not engage in speech in the workplace (verbally, in written or electronic form), which is openly discriminatory, or which is likely to cause dissension or disruption in the workplace. This should be empowering to all employers. While employers certainly need to be careful when disciplining or discharging an employee under these circumstances, they do have the right to set some reasonable limits on what type of speech will be tolerated in the workplace

LexBlog