Unless you’ve been living under a rock in New Jersey, you likely know that paid sick leave will be the law of the land for all New Jersey employers beginning on October 29, 2018.  We recently issued an update on the law and included a link to the draft poster that has been issued by the State.  More details can be found here.

The poster may not be in final form as the regulations have not been finalized.  However, employers must still post the poster by October 29, 2018.

If you haven’t already reviewed your sick leave policies for compliance, you should do that asap to be ready when the law goes into effect.

The US Equal Employment Opportunity Commission (EEOC), the lead agency that administers federal anti-discrimination laws, has publicly announced its preliminary data for Fiscal Year 2018 regarding charges of sexual harassment in the workplace.

And while the data are still preliminary, they are striking, perhaps reflecting the growth and influence of the #MeToo movement.

In several key metrics, the EEOC announced it had seen increasing results relating to charges of sexual harassment in the workplace in FY 2018:

  • the EEOC filed 41 lawsuits against employers that included claims of sexual harassment, an increase of over 50% from the previous year;
  • the EEOC obtained $70 million for employees through enforcement action, an increase of over 47% (or $22.5 million) from the previous year; and
  • discrimination charges filed by employees with the EEOC that included sexual harassment allegations increased by 12% from the previous year.

This uptick in activity related to workplace sexual harassment is part of a longer-term emphasis by the EEOC.  For example, the agency launched a training program in October, 2017, following on the heels of the agency’s extensive task force report on workplace harassment that it issued in 2016.  In addition, the EEOC’s Strategic Enforcement Plan for Fiscal Years 2017 through 2021 includes preventing systemic workplace harassment as one of its six substantive area priorities.

In light of the EEOC’s intensifying focus on sexual harassment and the increase in sexual harassment charges filed with the EEOC, employers should consider reviewing and updating their anti-harassment training programs, policies, and practices.

 

As an employment lawyer, I anxiously awaited the proposed regulations for the New Jersey sick leave law as the law left some unanswered questions regarding carryover and other issues.  The proposed regulations have been out for a few weeks now and I have had time to thoroughly digest them

Unfortunately for employers, the proposed regulations do not answer some of the questions my clients had regarding the law and create confusion in other areas.  Some of the more incomprehensible sections of the regulations occur in the section dealing with calculating sick leave pay.  Employers with tipped, commissioned or piecework employees should pay special attention to these provisions.

There are many problems with this section, but one of the key ones is how an employer calculates a rate of pay for employees with two or more jobs for the employer, has a fluctuating rate of pay, is paid on piecework, or is a tipped employee.  The proposed regulations at 12:69-3.6 provide that in these cases an employer must look at wages earned in the last seven (7) workdays where leave was not taken and take the earnings divided by the hours worked to get an hourly wage.

The problem with this is that few employees have a seven-day workweek. Instead, many employees have a five-day workweek.  For those employees, an employer would have to go back one workweek plus two more work days in a previous week, which is likely not representative of the employee’s regular work schedule. It also creates an administrative nightmare as the employer could not simply look at the previous workweek to see what was earned.

It would make more sense to use the last week worked or a two-week period which would be more representative of an employee’s schedule.

This is but one issue in the proposed regulations.  I have been working with several of my partners to help business groups prepare comments to the proposed regulations and this is one issue we intend to raise.

If you have other issues or questions about the proposed regulations, we would love to hear from you to see if they could be incorporated into our comments.

Employers can also provide comments directly to the Division of Labor by submitting written comments by December 14, 2018 to:

David Fish, Executive Director
Office of Legal and Regulatory Services
NJ Department of Labor and Workforce Development
PO Box 110
13th Floor
Trenton, New Jersey 08625-0110
E-mail: David.Fish@dol.nj.gov

In our July 24, 2018 post, we reminded employers that mandatory harassment training was going to be required of all employers in New York. Since that post, the State has issued model training materials that can be found here.

Employers are obligated to provide annual “interactive” sexual harassment training for employees.  New hires must also be given training.

Importantly for employers, they also recently clarified the deadlines for when training must be provided.  Employees must receive training at least once per year beginning on October 9, 2018.  This means that employers must insure that all employees receive training between October 9, 2018 and October 8, 2019.  Thereafter, training should be on an annual basis.  The State backed off initial guidance that said that new hires must be trained within 30 days of hire.  Instead, they simply encourage employers to provide training as soon as possible.

It is still a best practice to provide training as part of an onboarding process for new hires.

There also is some clarification as to what is meant by “interactive training.”  According to the State’s website, interactive training can include any of the following:

  • If the training is web-based, it has questions at the end of a section and the employee must select the right answer;
  • If the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner;
  • In an in-person or live training, the presenter asks the employees questions or gives them time throughout the presentation to ask questions;
  • Web-based or in-person trainings that provide a Feedback Survey for employees to turn in after they have completed the training

The State cautions that “[a]n individual watching a training video or reading a document only, with no feedback mechanism or interaction, would NOT be considered interactive.”

In general, in person training is often the most effective training as employees are more engaged and can learn from questions posed by their fellow employees.  However, it is not always practical to do in person training.  In those cases, we do recommend a mix of in person and web-based training.

Although employers do not have to immediately provide training for their work forces, time has a way of getting away from all of us.  Arrangements should be made sooner rather than later to get training scheduled.

Over at In the Weeds, our Firm’s blog on the developments in cannabis law, my colleague Joseph McNelis shares a breaking development at the intersection of cannabis law and employment discrimination law.  This legal intersection poses a complicated series of questions, requiring courts to weigh the illegality of cannabis under federal law with state laws that authorize medical marijuana use (which themselves sometimes contain provisions prohibiting workplace discrimination on the basis of an employee’s state-authorized use of medical marijuana).  As Joe notes, a recent decision by the United States District Court for the District of Connecticut, Noffsinger v. SSC Niantic Operating Company, LLC, addresses precisely this issue.

In July, 2016, the plaintiff in this case applied for and accepted a job offer from a health and rehabilitation center.  Several years prior, she had been diagnosed with post-traumatic stress disorder (PTSD) after experiencing a car accident.  On the recommendation of a provider, she began using medical marijuana under Connecticut’s state-authorized medical marijuana program to treat her PTSD symptoms in 2015.  The case recites what happened after the plaintiff accepted the job:

Plaintiff and [employer’s administrator] agreed that a follow-up visit would take place on July 25 for the completion of pre-employment papers, background check, and drug screen.  At this follow-up meeting, plaintiff disclosed to [the administrator] her PTSD diagnosis and her participation in Connecticut’s medical marijuana program.  She explained that she took prescription marijuana in the evenings as a “qualifying patient” under [Connecticut’s medical marijuana statute] and showed [the administrator] her registration certificate and an empty pill container which displayed her name and dosage of her medical marijuana pills.

When the plaintiff subsequently tested positive for THC, a chemical component of marijuana, the employer rescinded the job offer.  The plaintiff then sued under Connecticut’s medical marijuana law, which contains anti-discrimination language:

[U]nless required by federal law or required to obtain funding: . . . (3) No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient . . . Nothing in this subdivision shall restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during working hours.

Notably, the Court rejected each of the employer’s arguments and granted summary judgment to the plaintiff in this case–although it rejected her claims for attorneys’ fees and punitive damages.

For more details on the case and items for employers to consider in a situation like this, check out Joe’s post.  And for more general background information on states’ legalization of marijuana and how that can impact the workplace, check out our Firm’s recently published Resource Guide.

On Fox’s Immigration View blog, partner Alka Bahal provides a detailed exploration of the I-9 inspection process, in the wake of a recent surge in I-9 audits carried out by the U.S. Immigration and Customs Enforcement (ICE) agency. All employers in the United States are required to have a Form I-9 on file for all employees to verify their identity and authorization to work in the United States.

We invite you to read Alka’s information-packed post addressing concerns facing employers:

Employers Beware: ICE Is Ramping Up I-9 Audits to Record Levels

Yesterday,  I spent a large part of my day talking about harassment training.  Between completing a pitch for new work and scheduling training for existing clients, the questions I faced most were the following:

  1. Where is training required?
  2. How often should an employer do training?
  3. Where training is required, does the training have to be “live”?

With regard to the first question, even in this #metoo era where law makers have struggled to be proactive, the vast majority of states/cities do not have laws requiring harassment training.  In fact, only a handful of jurisdictions require that employees be trained on harassment and discrimination.  Earlier this year, New York State joined California, Connecticut and Maine and will require that employers provide training.  Details about those requirements can be found in our previous blog post here.

Not to be outdone, a few weeks later, the NYC City Council passed a law requiring annual harassment training.  On May 9, Mayor de Blasio, signed the bill into law.  The bill requires employers with 15 or more employees to provide annual harassment training beginning on April 1, 2019.

At least, in NYC, the second question has been affirmatively answered.  It is not yet clear if the New York state law will require annual training or some other frequency.  California requires supervisor training every two years. Maine requires training of all employees, but only requires it within the first year of hire and not on an annual basis.  Likewise, Connecticut requires two hours of supervisory training within six months of an employee obtaining a supervisory position.

That being said, even in jurisdictions where training is not required or is not requires on an annual basis, training should be regularly refreshed.  This helps insure that new hires receive the training but also that employees do not get too relaxed with their co-workers and slip into inappropriate conversations.

I have seen increasingly in litigation that Plaintiffs’ attorneys are attacking the lack of or infrequency of training to argue that the employer condoned harassment and did not have an effective complaint procedure.

The NYC and New York State laws also answer the question of whether training must be live (there is no requirement for live training in California, Connecticut or Maine).  Although training does not have to be live, it does have to be interactive or “participatory.”

The question is what is participatory?  Although the law specifically notes that a live facilitator is not necessary, and the Commission will develop a model training policy, it would seem that at the least an employee should have the opportunity to answer/ask questions.

In my experience, the more interactive training sessions are those that provide real life scenarios for employees to discuss and for managers to discuss how to handle. I think that is difficult to do in an online setting. I’m not saying that there is not a place for online training, I just think that employers should think about augmenting it with live or video conference sessions.

I liken it to the last time you got computer training on a new program.  If you are like me, you can read the instructions from your IT department and seemingly understand it in the training session you are provided, but until you are actually using the computer program on a daily basis, it is difficult to say that you truly understand the program.

As I mentioned above, the Commission will be developing a model online training policy that will set the floor for what NYC employers will be required to cover in the training.  We will keep you posted when that is issued.

Ok, dear readers, I feel that I have been neglecting you.  I was swamped with preparing for a trial right before my well-deserved vacation to France and Spain.  I know, excuses, excuses.

I came back from vacation feeling refreshed.

I mean who would not be refreshed with views like this:

 

 

 

 

 

 

I feel that I have so much to catch you up on.

The first thing is that, while I was on vacation, the Diane B. Allen Equal Pay Act went into effect in New Jersey on July 1, 2018.  As we previously reported, this law dramatically expands equal pay protections by making it illegal to pay employees for similar work differently because of any protected class, not only gender.

If you are thinking, I am not in New Jersey, so I do not need to worry about this, I would not be so sure.  Equal pay for equal work has been a hot topic in a lot of jurisdictions as reports continually show that women are still earning less than men.

Compensation reviews can be time-consuming and expensive.  However, it is far better to do one proactively, at your own leisure, rather than under the gun when facing an EEOC or DOL investigation or a lawsuit.

If you are planning your HR expenditures for this year, you may be wise to include a comprehensive compensation review in your budget.

E-Book Cover: Employment Compliance in the Age of Legalized MarijuanaThough cannabis is illegal under federal law, at least 30 states and the District of Columbia have legalized cannabis for medical use and nine states, as well as D.C., have legalized it for recreational use—a dichotomy that presents a unique and complex challenge for employers. In a new e-book, Fox attorneys Joseph A. McNelis III, Lee Szor, William Bogot and Joshua Horn provide an overview of federal and state marijuana laws, discuss specific aspects of the employment relationship affected by the legalization of marijuana in certain states, and offer practical guidance for employers on how to navigate this new and developing area of the law.

We invite you to download a PDF of the e-book.

The Michigan Civil Rights Commission has taken significant action to clarify that its state statute prohibiting discrimination in employment on the basis of sex (among other characteristics) extends to prohibit employment discrimination based on orientation and gender identity:

The Michigan Civil Rights Commission voted 5-0 to approve a statement legally interpreting the Elliott-Larsen Civil Rights Act’s ban on “discrimination because of . . . sex” to include discrimination against sexual orientation or gender identity . . .

The idea of an interpretive statement from the commission, initially requested by Equality Michigan last year, was revived after the 6th Circuit Court of Appeals ruled in favor of a transgender woman who said she was illegally fired by a funeral home in Garden City while transitioning from male to female . . .

The [Michigan Department of Civil Rights] will begin taking complaints related to sexual orientation or gender-based discrimination.

Regular readers of our blog will be familiar with this particular legal issue, as we have previously discussed the question of whether bans on sex discrimination necessarily also ban discrimination on the basis of sexual orientation and/or gender identity in the context of federal law.  This legal question is a hot topic in employment litigation in federal courts across the country.  Because of widely divergent outcomes in federal district and circuit courts across the country in addressing this question, we will likely have to wait until the U.S. Supreme Court weighs in to have a definitive interpretation of federal law.

Irrespective of the federal question, however, there appears to be a trend toward states considering this issue in the context of their own non-discrimination laws.  The Michigan Civil Rights Commission’s decision is similar to proposed guidance announced by the Pennsylvania Human Relations Commission from late 2017.  This development is important because a Supreme Court decision on this issue under federal law may not necessarily prove binding on states’ interpretations of state law.

We will, of course, continue to monitor this issue as it develops around the country.