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Labor & Employment Insights

N.J.’s Equal Pay Act: Employers Beware

Published on: November 28, 2018 | by Lisa Gingeleskie

Originally published in the November 21, 2018 issue of ROI-NJ.

According to statistics, women in New Jersey are paid 82 cents for every dollar paid to men. Until recently, New Jersey’s pay equity protections mirrored those of the Federal Equal Pay Act of 1963, mandating equal pay for men and women performing “equal work.” Under these laws, pay disparities could only be justified if the differential was based on a bona fide seniority or merit system, or “any factor other than sex,” an exception that gave employers significant room to defend wage disparities by pointing to the applicant’s pay history or other factors unrelated to gender.

With the passage of the Diane B. Allen Equal Pay Act in March 2018, New Jersey now takes a more aggressive approach towards eradicating pay disparities. While principally aimed at the gender wage gap, the act applies to all protected classes, thereby paving the way for disparate wage claims on the basis of race, age and any other status protected by the New Jersey Law Against Discrimination. In addition, employees can point to higher rates being paid to counterparts outside the protected class who are engaged in “substantially similar work,” as compared to the narrower “equal work” standard under prior law. “Substantially similar work” will be viewed “in light of the employees’ skills, effort and responsibility.” Because there are no regulations interpreting this ambiguous phrase, employers must look beyond mere job titles to all aspects of all positions to identify those that involve “substantially similar work.”

Monitor This Year’s Holiday Party and Avoid Next Year’s Litigation

Published on: November 14, 2018 | by John H. Schmidt, Jr.

How many of us remember the iconic holiday party in the movie “Scrooged?” As Bill Murray is passing out mail, the staff is drinking more than they should, employees are groping each other, and how can anyone forget the employee who is copying their bottom while sitting on the Xerox machine? “Enjoy yourself, it’s the Christmas party.”

How many of us have attended such events? Probably more than we would like to admit.

Regardless of your point of view, times have changed. Sexual harassment is the law. Drunk driving jeopardizes public safety and can cause you and/or your employees to end up in jail. Social mores no longer condone the conduct demonstrated in that now famous “Scrooged” party.

Protecting Employee Data From a Human Resources Perspective

Published on: October 12, 2018 | by Eric B. Levine

Originally published in the October 2018 issue of HR News.

Combatting cyber-threats and protecting data is not only the job of an IT department. Human resource professionals play a critical role in safeguarding personally identifiable information as well. Indeed, if there is one area in every company that has in its possession a literal treasure trove of sensitive information, it is Human Resource. Who else has access to employees’ names, addresses, dates of birth, social security numbers, bank account information (for direct depositing of paychecks), health and medical information (originating form health insurance applications, flex plan reimbursement materials) and financial information, especially if your company has a self-directed 401K plan and contributions are automatically deducted from payroll. Needless to say, a data breach implicating your Human Resources department could be devastating. So what can you as a human resource professional do to assist in maintaining the integrity of your company’s data? Plenty.

Collaborate with IT and Legal departments:

NLRB Changes Course And Issues New Common Sense Guidance For Employer Handbook Rules

Published on: July 27, 2018 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Most employers are aware that employee handbook rules that impede employees’ abilities to engage in protected concerted activity – e.g., organizing unions, discussing wages, discipline or other terms and conditions of employment – run afoul of rights guaranteed by Section 7 of the National Labor Relations Act (NLRA). Under the prior administration the National Labor Relations Board (NLRB) took a very narrow view, finding that facially-neutral policies that could conceivably be construed to chill Section 7 rights are unlawful. As a result, employers were in peril of having the most innocuous workplace rules aimed at advancing basic employer interests, such as workplace civility, subject to challenge. Thankfully, the newly-constituted Board overruled years of precedent in favor of a much more reasonable and employer-friendly approach to assess the legality of employee handbook rules.

In December 2017, the Board issued its ground-breaking decision in The Boeing Co., 365 NLRB No. 154, announcing a new three category test that balances the employer’s interests in maintaining discipline and productivity and protecting its property, against employee rights to engage in concerted activities protected by the NLRA. On June 6, 2018, General Counsel of the NLRB issued a memorandum entitled “Guidance on Handbook Rules Post-Boeing” that serves as a useful roadmap for how the Board will apply its new three-category standard to a wide array of workplace rules commonly found in employee handbooks and other policies. The Guidance makes is clear that that the mere possibility that a workplace rule could be interpreted to preclude Section 7 activity is no longer a justification for finding the rule unlawful, and that “ambiguities in rules are no longer to be interpreted against the drafter, and generalized provisions should not be interpreted as banning all activity that could conceivably be included.”

The New Three-Category Test: When assessing the legality of workplace rules, the NLRB will now assign workplace rules to one of the following three categories:

Supreme Court Deals A Tough Blow To Organized Labor Movement

Published on: July 25, 2018 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

In its June 27, 2018 opinion in Janus v. AFSCME, Council 31 authored by Justice Alito, a divided U.S. Supreme Court resolved a long-standing battle over the ability of public sector unions to charge non-members “fair share” or “agency fees” to cover the cost of collective bargaining and other representational activities. In a major defeat for unions, the Court struck down these mandatory union fees as impermissible violations of nonmembers’ First Amendment speech rights. While the decision is limited to union fee practices in the public sector, it portends to have significant consequences for the private sector labor movement as well.

Agency Fees Pre-Janus: Since the Court’s 1997 ruling in Abood v. Detroit Board of Education, the status of agency fees assessed against employees who opt not to join their representative labor union has been the subject of ongoing debate. The Abood case was the first time the Court squarely addressed the tension between nonmembers’ First Amendment Rights and compulsory union dues in the public sector. Consistent with its prior rulings concerning private sector union fees, the Court concluded that any portion of compulsory fees attributable to contract negotiations and administrative expenses was permissible because employees who elected not to join the union nevertheless benefited from the union’s representation activities, and agency fees were justified as a way to eliminate these “free riders.” However, the Abood Court reasoned that forcing nonmembers to fund any portion of fees attributable to the union’s support of ideological or political causes that they may not agree with would be an impermissible impingement of First Amendment speech rights.

In recent years, the Court has been called upon to consider the continued constitutional viability of the agency fees assessment sanctioned by Abood. In Harris v. Quinn, the Court struck down on First Amendment grounds mandatory agency fees assessed to home health aides, but that ruling was limited to that particular class of employees at issue in that case. Two years later, the Court appeared to be poised to overrule Abood in Friedrichs v. California Teachers Ass’n, an action by teachers challenging agency fees, but the unexpected death of Justice Scalia derailed that effort. Instead, the court issued a per curiam opinion upholding mandatory agency fees.

How Does the Expansion of New Jersey’s Medical Marijuana Laws Impact Employers?

Published on: June 25, 2018 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Under New Jersey’s Compassionate Use Medical Marijuana Act enacted in 2010, registered physicians may prescribe medical marijuana to qualified individuals for the treatment of certain conditions. As designed and implemented under prior state administrations, it was often hard for medical marijuana patients to qualify and difficult for cultivators to operate. And previously, the qualifying conditions approved for treatment with marijuana were limited to a few select conditions for debilitating illnesses such as HIV, ALS, MS, IBS, Crohn’s disease, terminal cancer or other terminal illnesses.

However, last month Governor Phil Murphy issued an Executive Order for a wide ranging expansion of New Jersey’s medical marijuana program with significant changes to the number of approved conditions for treatment, the cost for registration, dispensary locations, as well as other immediate and future changes which will significantly impact the use of medical marijuana in state. Under this expansion, the qualifying conditions eligible for treatment with marijuana now include relatively common medical illnesses such as anxiety, migraines, Tourette’s syndrome, as well as chronic pain related to musculoskeletal disorders and chronic visceral pain. According to Governor Murphy, this expansion is aimed at changing “the restrictive culture of [New Jersey’s] medical marijuana program to make it more patient-friendly.”

The program will also cut registration and renewal fees from $200 to $100 every two years, with senior citizens and veterans added to the category of patients who pay only $20. And while patients must still be referred to the program by physicians who are registered and in good standing to practice in the State, this amendment has abolished the public physician registry, which will allow physicians to prescribe marijuana for patients without appearing on a public roster. In a state with roughly 28,000 physicians, just 536 physicians were registered under the prior public registry system. According to Murphy, many physicians were deterred from registering out of fear of the stigma associated with prescribing marijuana which is still illegal under federal law. As a result, the old public registry requirement had the effect of limiting patient access to registered providers who could prescribe medical marijuana. Medical marijuana expansion also allows Alternative Treatment Centers to apply to open satellite locations. New Jersey currently has only 5 (soon to be 6) approved Alternative Treatment Center statewide. Recent reforms will also allow registered caregivers to assist more than one qualified patient. As a result of these changes and others, New Jersey has added approximately 1,500 patients to the roughly 18,000 current medical marijuana users registered for this program in the past month alone.

Kathleen Connelly Uses ‘Inner Teacher Instinct’ to Mentor Young Associates

Published on: June 21, 2018 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Kathleen Connelly of Lindabury, McCormick, Estabrook & Cooper in Westfield has been handling management-side employment law matters for 25 years, but has also distinguished herself as a mentor. She helped found in 2007, and continues to take a leadership role in, the firm’s Women’s Business Initiative, and has a reputation at the firm of always being willing to take time to show and explain to colleagues how to handle challenging tasks.

“I have always had an inner teacher instinct that does not want to simply delegate, but strives to educate individuals so that they are armed with the information they need … I remember often feeling both terrified and incompetent in my early years, and I try to change that experience for young associates to the extent I can.” says Kathleen.

You can read the full article, Connelly Uses ‘Inner Teacher Instinct’ at Lindabury McCormick, on the New Jersey Law Journal’s website (subscription may be required).

3 Simple Steps to Prevent Workplace Harassment

Published on: June 18, 2018 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

The floodgate of sexual harassment allegations spawned by the #MeToo movement is evidence that employers have dropped the ball on fostering work environments free from inappropriate sexual behaviors. The good news is, there are three simple steps employers can take to begin preventing workplace harassment from occurring — and potentially avoid liability if legal action ensues.

The courts have created a safe harbor defense available in most instances to employers who can show they acted reasonably to prevent the occurrence of workplace harassment. Although most employers have implemented written policies prohibiting sexual harassment, merely disseminating such policies falls short of the actions courts require to invoke the safe harbor defense. Rather, employers must show that their anti-harassment policies are far more than paper documents, but are part of a program enforced through consistent practice and employee training. Employers may qualify for the defense if they undertake three actions.

Action 1: Distribute an Anti-Harassment/Complaint Policy

How Are Employer’s Obligated to Accommodate Employees Who Are Also Nursing Mothers?

Published on: May 11, 2018 | by Lisa Gingeleskie

Effective January 8, 2018, the New Jersey Law Against Discrimination (“NJLAD”) was amended to include breastfeeding as a protected category. Under the amended law, employers must provide nursing mothers with reasonable breaks during the work day and a suitable private location close to the employee’s work area to express milk for her infant child. The only exception to this requirement to accommodate is when doing so would place an undue hardship on the employer’s business. When considering whether or not an undue hardship exists, the court will look to the following factors:

The overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of the budget;
The type of the employer’s operations, including the composition and structure of the workplace;

Attention All New York Employers: State And City Now Mandate Sexual Annual Harassment Training And Other Measures

Published on: May 7, 2018 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

In the wake of the #MeToo and #TimesUp movements, the New York Legislature and the New York City Counsel have adopted groundbreaking legislation imposing significant employer obligations and expanding employee protections for unlawful sexual harassment in the workplace.

New York State Legislation: As part of its 2018-2019 state budget bill, on the New York Assembly included numerous provisions aimed at eradicating workplace sexual harassment. In his press release, Gov. Cuomo (who is expected to sign the bill) described the action as “the strongest and most comprehensive anti-sexual harassment protections in the nation,” which includes the following key provisions:

Mandatory Training and Anti-Harassment Policy: regardless of size, all New York employers must provide annual “interactive” sexual harassment training to all employees that covers the following: