Labor & Employment Insights

Employees are eligible for 12 weeks of unpaid leave under both State and Federal Law. Under Federal law, the Family and Medical Leave Act (“FMLA”) governs employee leaves of absences whereas the New Jersey Family Leave Act (“NJFLA”) governs State leave. While there are some similarities between the two Acts, it is crucial that employers understand the critical differences as well.

Understand the Overlap and Distinctions Between the Two Acts.

FMLA Basics

The floodgate of sexual harassment allegations spawned by the #MeToo movement is evidence that employers are dropping the ball on fostering work environments free from inappropriate sexual behaviors.  The good news is there are simple things an employer can do to prevent workplace harassment from occurring in the first place, and to potentially avoid liability should a suit be filed.

What Should Employers Do to Protect Themselves?

The courts have created a “safe harbor” defense in most instances for employers act reasonably to prevent and address incidents of workplace harassment. Employers may qualify for the defense if they undertake the following actions:

In NJBIA’s recent article, Kathleen Connelly, a member of Lindabury’s Employment Law practice group, discusses the U.S. Department of Labor’s (DOL) new test to determine if a student intern is an employee, which may make unpaid internships a more viable option for employers.

“By no means is this a green light for employers to avoid their minimum wage and overtime requirements by masking their employees as unpaid interns,” Connelly said. “I think the best way to approach it is for the employer to stand in the shoes of the intern and craft the internship in such a way that it provides real value to the intern that is linked to the intern’s course of study.”

To access the full article click here.

The change in administrations has brought a series of reversals of the Obama era’s less than employer-friendly positions by the U. S. Department of Labor (DOL) and the National Labor Relations Board (NLRB or Board). This article highlights some of the favorable recent developments from these agencies that may be a harbinger of better things to come in 2018.

DOL REINSTATES 17 FAVORABLE OPINION LETTERS WITHDRAWN BY THE PRIOR ADMINISTRATION

For many, many years, the DOL issued official written Opinion Letters in direct response to employer questions regarding the interpretation and implementation of federal labor laws. Although they do not create law, Opinion Letters set forth the DOL’s position on how the Fair Labor Standards Act (FLSA) and other laws apply to very specific circumstances presented by employers seeking the DOL’s guidance. Under the FLSA, an employer who relies in good faith upon an Opinion Letter issued by the DOL is shielded from liability for violations of the minimum wage and overtime requirements of the FLSA, so long as the facts pattern surrounding challenged practice is identical to that contained in the relied-upon Opinion Letter.

On August 29, 2017, the Office of Management and Budget (“OMB”) announced that it was immediately suspending the revised Equal Employer Information Report (“EEO-1 Report”), which included burdensome pay reporting obligations for employers. Previously, the EEO-1 Report directed federal contractors and employers with 100 or more employees to report annually the number of individuals that they employ by job category, race, ethnicity and gender. The proposed EEO-1 revisions, however, expanded the information collected to include pay ranges and hours worked. This expansion was aimed at identifying pay gaps and focusing employers on the issue of equal pay between male and female employees.

In response to the proposed reporting requirements, employers expressed concern over privacy and confidentiality issues surrounding the disclosure of pay data and also questioned the overall utility in collecting such data. In suspending the revised EEO-1 Report, the OMB recognized similar concerns, stating that some aspects of the proposed collection of information “lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.” Accordingly, the OMB directed the EEOC to publish a notice advising that the proposed wage and hour reporting requirements were immediately suspended and further directed the EEOC to provide additional information for its future consideration.

As a result of this directive, employers can put aside plans to collect data reflecting pay ranges and hours worked for the time being. However, in doing so, employers should be mindful to stay abreast of any updates in reporting requirements following any further review by the OMB. In addition, employers are still required to submit EEO-1 Reports using the previously approved form, which requires employers to disclose their employees’ race, ethnicity, and gender by job category. The deadline for submission of this report remains March 21, 2018.

Employers who take proactive measures and engage in an interactive process with their employees could avoid liability in disability discrimination lawsuits.  One recent case, Grau v. AHS Hospital, Docket No.: A-3959-15T1, sets forth a good model of how employers should approach an employee’s demand for disability accommodation for purposes of avoiding liability.  Grau involved a long time employee, a hospital nursing assistant, who suffered a shoulder injury after she fell at her workplace.  The employee’s physician cleared her to work on light duty, and restricted her from lifting and pushing, key functions of her daily work activities.  Despite the fact that she could not perform these key functions, the employer accommodated the employee by placing her on a light duty desk position, but could only do so for ninety days.  The employer had also tried to find the employee a permanent sedentary position but no such positions were available.  It also tried to retrain the employee for a computer job, but the employee could not be retrained because of her limited ability to use a computer.  Because the employee was unable to find another position at the hospital, the employee retired and successfully applied for social security benefits.  She thereafter filed a disability discrimination lawsuit against the hospital system, which was ultimately dismissed on summary judgment by the trial court.  The employee appealed and the Appellate Division affirmed the dismissal, agreeing with the trial court that the employer had offered the employee sufficient reasonable accommodation, actively engaged with her in the interactive process, and ultimately finding that the employee was unable to perform the essential functions of the job.  The court agreed that even with reasonable accommodations, the employee could not perform the job of a nursing assistant in her disabled state, and was satisfied that the employer had no other open positions for which the employee was qualified. In other words, the hospital had done absolutely all it could to reasonably accommodate the employee, but her condition would not allow her to perform the essential functions of the job. It would benefit all employers facing claims for accommodation based on disability to immediately consult qualified employment law counsel, so that reasonable accommodations may be planned, and the interactive process could be commenced with the employee.  As the Grau case demonstrates, a proactive strategy could avoid substantial liability and headaches down the road.

Lindabury’s Labor and Employment Law partner, John H. Schmidt, was interviewed by New Jersey Business Magazine‘s Editor-in-Chief Anthony Birritteri for the article published in the May 2017 issue. Their discussion focused on the fine lines of major issues employers face regarding diversity and discrimination in the workplace and in the hiring process.

New Jersey’s Law Against Discrimination (NJLAD) is among the strongest anti-discrimination laws in the country and according to John Schmidt, “The New Jersey LAD is much broader than the provisions of Title VII because the latter deals with race and sexual discrimination. On the federal level, there is a separate statute for disability discrimination, as an example. In fact, since the mid-to-late 1980’s, most plaintiff attorneys have decided it is to their advantage to bring claims under the NJLAD”

Most companies claim they are equal opportunity employers and have been recognized by the top diversity lists. John Schmidt cautions; “If you select a particular class of individuals [a certain minority group] to hire – giving preference to them- you could be in violation of the NJLAD and federal laws.”