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OSHA Provides Employers with Guidelines on Restroom Access for Transgender Employees

Published on: December 24, 2015 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Throughout the years OSHA has promulgated a substantial set of regulations to improve overall health and safety in the workplace, including the requirement that employers provide employees with sexually-segregated sanitary toilet facilities. On June 1, 2015, the Occupational Safety and Health Administration (“OSHA”) issued a best practices guide for employers titled “A Guide to Restroom Access for Transgender Workers.” The publication’s core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.

In its publication OSHA acknowledged the potential questions employers will face regarding which facilities a transgender employee should use. According to OSHA, “a person who identifies as a man should be permitted to use the men’s restroom and a person who identifies as a woman should be permitted to use the women’s restroom.” OSHA’s policy is based on the reasoning “that restricting employees to using only restrooms that are not consistent with their gender identify, or requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety.” Additionally, OSHA believes these restrictions can result in employees avoiding the use of restrooms while at work, which can lead to potentially serious physical injury or illness.

OSHA observed that the best employer policies provide various restroom options that the employee may choose, such as single-occupancy gender-neutral facilities and use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls. Moreover, employees cannot be required to use a segregated facility apart from other employees because of their gender identity or transgender status. OSHA’s best practices further advises employers that they cannot ask employees to provide medical or legal documentation of their gender identity.

Grey Divorces – A Guide For Older Couples Considering Divorce in New Jersey

Published on: November 4, 2015 | by James McGlew, II

A recent New York Times article discussed the increasing national trend of older couples divorcing. In New Jersey, as well as nationally, “Grey Divorces” are becoming more common and, as a result, more socially acceptable. Over the last 15 years there has been a marked increase in the number of individuals over the age of 50 who are divorcing their spouse and for individuals over the age of 65, the divorce rate increase has been even greater.

For the majority of older individuals many of the more common divorce issues no longer remain. Issues such as child custody, time-sharing, child support and those surrounding the raising of children have all been resolved. Rather, for senior couples preparing to divorce the issues of alimony and equitable distribution remain vitally important along with a myriad of other related late-life divorce questions.

Below I have outlined some of the major considerations that should be examined by older couples who intend to divorce.

Unfair Labor Practice Charges Dropped By Employees Allegedly Threatened For Social Media Posts

Published on: November 4, 2015 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

As part of a recent labor contract deal between the nurses’ union and Meridian Health in New Jersey, the union agreed to withdraw an unfair labor practice charge filed with the National Labor Relations Board (“NLRB”) alleging Meridian unlawfully threatened nurses who posted social media messages in support of the union’s ongoing contract negotiations with Meridian. Meridian Health had responded to the charges by acknowledging that it maintained “a comprehensive social media policy that outlines exercising good judgment and refraining from communicating patient information or proprietary information of Meridian.”

Although the spat between Meridian and the union was averted by the contract settlement, it serves as yet another illustration of the risks faced by employers who take action against employees for their social media activities. Both union and non-unionized employers must be mindful of the significant protections accorded to employees who engage in work-related social media communications. Section 7 of the National Labor Relations Act (“NLRA”) provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…” In the Meridian case, the union charged that the hospital’s threats against nurses for their pro-union posts ran afoul of these NLRA rights.

Through a series of reports, the NLRB has recognized that employee social media communications may indeed constitute protected concerted activity under Section 7. For employers with a unionized workforce, the NLRB has predictably observed that employee posts pertaining to collective bargaining, strikes or other labor actions are examples of protected activity. Moreover, the NLRB has reaffirmed that Section 7 rights also extend to non-unionized workplaces, and thus employee social media communications addressing disciplinary actions, wages, or any other terms and conditions of employment may likewise be protected under the NLRA. In several recent rulings the NLRB declined to strip employee posts of Section 7 protection even though they were laced with profanities and disrespectful comments about the employer.

Securing Payment From a Public Project Has Its Own Set of Rules

Published on: November 3, 2015 | by Greg K. Vitali

“Don’t worry, our payment is secure because this is a public project with public funds. Right ?”

Yes and No. It is only secure if you complied with certain statutory pre-notice requirements!

When you supply materials, equipment or labor for a public project (i.e. “ a construction project paid for with public funds”), you have certain extra statutory remedies to help ensure you receive payment. These remedies go beyond the typical contract rights your business has against the party with whom you contracted. These remedies consist of:

New Jersey Construction Lien Rights For Material and Labor Suppliers

Published on: November 3, 2015 | by Greg K. Vitali

If the owner of a private, non-residential construction project in New Jersey defaults on making payment to the supplier of labor and or materials, one of the most important things that supplier can do is to file a Construction Lien to protect its rights and monies.

For example, if a supplier enters into an agreement with a prime contractor or subcontractor to provide materials on a project and that prime contractor or subcontractor goes out of business or files for bankruptcy prior to making payments, the supplier would be left with no recourse against the prime contractor or subcontractor. To the extent that the supplier, however, has filed a Construction Lien against the property, it could still recover its payments directly from the Owner of the project. In order to do so, a subcontractor/supplier should be aware and mindful of certain timing and procedural requirements that must be followed to file a valid Construction Lien on private property in New Jersey.

As an initial matter, a Construction Lien can only be filed by the following class of claimants on a construction project:

Tips For Extending Credit To Customers So Your Investment Is Protected

Published on: November 3, 2015 | by Greg K. Vitali

Are You a Material Supplier or Are You a Bank? If You Extend Credit to Customers You’re Both

Does your business offer lines of credit to its customers? If so, are you approaching these transactions with the same caution as a bank?

To facilitate business transactions with regular customers, many equipment and material suppliers offer lines of credit. Before your business extends credit to a customer, it is important to think of the transaction in banking terms. Every time you provide equipment or materials to a customer on credit, you are lending that customer money. Essentially, you become a lender and the customer becomes your borrower. Ask yourself: “If I were a bank, would I provide them with a loan?”

Religious Garb in the Workplace and the Potential For Employer Liability

Published on: October 20, 2015 | by Lisa Gingeleskie

Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations for employee’s religious practices, including religious garments. In an 8-1 ruling, the United States Supreme Court recently decided an employer may be liable for religious discrimination if its hiring decision was motivated by the applicant’s possible need for an accommodation of religious garb. According to the Supreme Court, the applicant does not need to request or notify the employer of a need for religious accommodation for liability to ensue.

Facts: Samantha Elauf, a practicing Muslim, interviewed for a position in an Abercrombie retail store with Heather Cooke, the store’s assistant manager. Elauf wore a headscarf in the interview but never mentioned that it was part of her Muslim observance and that she would need accommodation for her religious garb.

Using Abercrombie’s system for evaluating applicants, Cooke gave Elauf a rating that made her eligible for employment. However, Cooke was concerned Elauf’s headscarf would conflict with Abercrombie’s “Look Policy” governing employees’ dress to ensure it is consistent with the image Abercrombie seeks to project. Under the Look Policy, employees are prohibited from wearing “caps” on their head. After Cooke informed the district manager that she believed Elauf wore her headscarf for religious reasons, the district manager noted that all headwear violated the Look Policy and directed Cooke not to hire Elauf.

How Can That Be? NLRB Overturns Arbitrator’s Decision and Finds that Racist Comments are Protected Activity Under the NLRA

Published on: October 20, 2015 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

In recent years the National Labor Relations Board (NLRB) has issued numerous opinions that decidedly favor employee rights to engage protected activity under the National Labor Relations Act (NLRA) over employer rights to manage conduct in the workplace. However, a recent decision by a NLRB administrative law judge that Cooper Tire & Rubber violated the NLRA by unlawfully terminating an employee who made overtly racist statements on a picket line has many employers deeply troubled about how far the Board is willing to subordinate employer rights in the workplace.

The Facts: Following the expiration of Cooper Tire’s Collective bargaining agreement with the United Steelworkers, Cooper hired temporary replacement workers at its Findlay, Ohio plant until a new agreement was reached. In response, the Union set up numerous picket lines at the facility and chanted various “scab” comments to the replacement workers, many of whom were African-American, as they crossed the picket line. However, union member Anthony Runion was caught on camera yelling racist comments to the replacement workers, including the following: “Hey, did you bring enough KFC for everyone?”, “Hey, anybody smell that? I smell fried chicken and watermelon.” The company terminated Runion for making racist comments in violation of its anti-harassment policy, and the union’s grievance of the termination was denied at arbitration.

The NLRB’s Ruling: On appeal to the NLRB, the Administrative Law Judge ruled that the Cooper’s anti-harassment policy was not controlling. Rather, the Judge reasoned that Runion was discharged for a reason prohibited under the under the National Labor Relations Act – the protected activity of engaging in picketing. In so doing, the Judge observed that while Runion’s comments were indeed racist and reprehensible, his conduct “did not tent do coerce or intimidate employees [crossing the line], nor did they raise a reasonable likelihood of an imminent confrontation . . . they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property. The Judge noted that serious acts of misconduct during union activities can negate the protections otherwise available under the NLRA, this was not the case here, and thus the statute’s protections trumped the company’s anti-harassment policy.

New Department of Labor Interpretation Renders Independent Contractors an Endangered Species

Published on: October 20, 2015 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

On July 15, 2015 the U.S. Department of Labor (DOL) issued an Administrator Interpretation aimed at eradicating what the DOL perceives as widespread improper misclassification of “employees” as “independent contractors” in violation of the Fair Labor Standards Act (FLSA). According to the DOL, misclassifying workers as independent contractors results in workers being deprived of important protections such as minimum wage, overtime compensation, unemployment insurance and workers compensation benefits available to employees. The DOL also pointed to the loss in payroll tax revenues to the government and the intentional misclassification by some employers to cut costs and avoid compliance with labor laws. Citing the “economic realities test” used by the courts to determine whether a worker is an employee or independent contractor under the FLSA, the DOL declared that “in view of the expansive definition of ‘employ’ under the Act, most workers are employers under the FLSA.”

The DOL’s expansive interpretation “employ” under the FLSA: The FLSA simply defines “employ” as “to suffer or permit to work.” Historically, the multi-factored “economic realities test” has been applied to determine whether an employer “suffers or permits” an individual to work within the meaning of the FLSA. The economic realities test considers whether:

the work being performed is an integral part of the company’s business

New Jersey Supreme Court Confirms Employee Can Be Criminally Prosecuted For Theft of Employer Documents

Published on: October 19, 2015 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

In its recent landmark ruling in State v. Saavedra, the New Jersey Supreme Court ruled that a former school board employee who was pursing discrimination and retaliation claims against the school could be criminally prosecuted for removing confidential school documents she claimed would aid her in pursuing those legal claims. This decision was somewhat of a surprise in light of the court’s 2010 ruling in Quinlan v. Curtiss-Wright Corp., that an employee’s theft and use of confidential personnel documents to assist her discrimination lawsuit against her employer was protected activity under the New Jersey Law Against Discrimination (LAD).

The upshot if these two rulings is that while an employee who steals corporate documents may not necessarily be fired for doing so, they might be subject to criminal prosecution under certain circumstances.

The Facts: Ivonne Saavedra was a clerk for the North Bergen Board of Education (the Board) who filed suit against the Board alleging discrimination and retaliation claims in violation the LAD and the Conscientious Employee Protection Act (CEPA). During discovery, Saavedra produced over 350 documents, including original and copies of confidential documents in violation of Board policies. Many of the documents contained sensitive educational and medical information about students, information that the Board was prohibited from disclosing to third parties by federal and state law. The Board notified the Hudson County prosecutor who in turn secured an indictment against Saavedra for official misconduct and theft. Saavedra efforts to dismiss the indictment were unsuccessful at the trial and appellate level, and the Supreme Court affirmed.