Employer Posting Requirements

10337425_sThe Department of Labor has issued guidance for employers on the FMLA.  The Employer’s Guide to the Family and Medical Leave Act attempts to walk employers through the FMLA process, starting with determining who is a covered employer and going through employer obligations when employees request leave.  The Guide should be a valuable resource for employers.  One of the most helpful items in the guide is the “roadmap.”

I deal with a lot of questions about the FMLA from employers on a daily basis.  In many cases, employers have jumped ahead to trying to grant the leave before first determining eligibility of the employee for leave.  The roadmap is a reminder to go through the process first of determining if the employer is a covered employer and second if the employee is actually eligible for leave. Employers are often confused whether the employee needs leave for a qualifying reason.  However, there are times that employers do not realize that an employee is not eligible for leave because the employee has not worked enough hours or does not work in a covered location.

The FMLA is definitely not easy to understand, so hopefully, this guide will help.  Of course, when in doubt, employers should consult with legal counsel.

The DOL also announced that soon employers will be required to display a new FMLA poster.  The poster has not been issued yet but according to the DOL is not really new information; rather it is supposedly a more “user friendly” version.  We will update you when the poster is issued.

In recent years the issue of the so-called “gender gap” in employee wages has, pardon the use of this word, “engendered” strong feeling on the part of the labor and business communities.  Proponents of the gender gap theory maintain that the data is clear that women earn, on average, 79 cents per dollar that is received by their male counterparts.  Critics of the theory argue that the comparisons employed in the analysis are not identical and that theory ignores other cultural factors.  The Obama Administration  has always been an advocate of the former.

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This is why it should come as no surprise that President Obama on Friday unveiled new rules that would compel companies with more than 100 workers to provide the federal government annual data for how much they pay employees based on gender, race and ethnicity.  The proposal, which covers over 63 million employees, is expected to be finalized by September, with the first reports due in the fall of 2017.  Of course, given the fact that this is not an act of congress, it is susceptible to being overturned by President Obama’s successor when he or she takes office in January 2017 (we’ll let you all have the fun of speculating which candidates would and which would not).

If you are a covered employer, our advice would be to begin drafting a process wherein this information can be collected, if not readily available, and wait for further guidance come fall.  At that time, we will revisit the regulations and talk about what will need to be done to ensure that your company does not run afoul of the regulations.

17347130_sJust when we reported that Pittsburgh employers have gotten a reprieve from sick leave laws, New Jersey employers have yet another sick leave law with which to contend.

On December 16, 2015, the New Brunswick City Council passed Ordinance 121501 which will require New Brunswick employers to provide paid sick leave to employees.  That means that there will be 11 municipalities in New Jersey who have sick leave laws in effect in 2016.  To quote Bob Dylan’s “All Along the Watchtower,” “There must be some way out of here. . . . There’s too much confusion. I can’t get no relief.”

Adding to employers’ headaches is the fact the New Brunswick law differs from the other laws that have been passed.  However, the New Brunswick law is actually a more logical and business-friendly law than in the other 10 municipalities.  New Brunswick’s law focuses on the status of the employee to determine whether leave is available and if so, how much leave is available.  New Brunswick’s law also only applies to employers who have a business location in New Brunswick and who have at least 5 Full-Time Equivalent employees.

Under the law, employees are categorized as full-time or part-time and that classification determines the amount of leave the employee can accrue.  Full-time employees are defined as someone who averages 35 hours per week.  Part-time employees are defined as those who work between 20 and 35 hours per week.  Employees who average less than 20 hours per week or who are per diem or temporary employees for a hospital are not eligible to accrue paid time off.  Likewise, employees who work from home are not eligible for paid time off.

The law also differs from the other municipal laws in that leave accrues at the rate of 1 hour earned for every 35 hours worked.  Full-time employees may accrue up to 40 hours per year; part-time employees accrue up to 24 hours per year.  However, an employer with less than 10 total employees does not have to allow employees to accrue more than 24 hours per year.  Eligible employees begin to accrue time on the first day of employment and can use accrued time after the completion of 120 days of employment.

Leave may be taken for the following reasons:

  • the Employee’s mental or physical illness or injury, including the need for diagnosis and preventative care;
  • care for a family member’s mental or physical illness or injury, including the need for diagnosis and preventative care;
  • closure of the employee’s place of business or the employee’s child ‘s school  due to a public health emergency, or to care for a family member who has been quarantined;
  • as needed related to domestic violence, sexual assault, or stalking.

Employers in New Brunswick will need to examine sick/paid time off policies to insure compliance with the laws.  Even employers who have already reviewed policies due to one of the other municipal leave laws may need to take a second look given the differences in New Brunswick’s law.

The law goes into effect quickly.  It will be effective January 6, 2016.  The City has already issued the required poster which can be found here.

11993910_sIn August, the Pittsburgh City Council passed a paid sick leave ordinance that will require employers with 15 or more employees to provide up to 40 hours of paid sick leave.  Employers with less than 15 employees will be required to provide up to 24 hours of unpaid sick time for the first year.  After that, small employers will have to provide up to 24 hours of paid leave.  The Ordinance states that the law will be effective 90 days from the date regulations and the required notices are issued.

Before the law even had an effective date, several business groups filed a lawsuit challenging the Council’s power to enact the Ordinance.  The legal challenge is premised on the fact that Pittsburgh is established pursuant to a home rule charter.  The groups allege that there is a home rule law that prohibits cities formed under home rule charters from passing laws related to employment.

Not to be deterred, the City Controller issued the required posters on Monday and set the effective date as January 11, 2016.  Copies of the posters can be found here.  The business groups suing the City have stated that they plan to seek an injunction prohibiting the law from going into effect.  In the absence of such an injunction, the law will go into effect on January 11th and employers should review their sick leave policies for compliance.

7282049_sMassachusetts’ new sick leave law goes into effect on July 1, 2015.  In anticipation of the law, the Attorney General has posted the Earned Sick Time Notice of Employee Rights which must be posted by Massachusetts employers by July 1, 2015.

Under the law, employers with 11 or more employees must offer up to 40 hours of paid sick leave.  Employers with fewer than 11 employees must offer up to 40 hours of unpaid sick leave.  Sick leave accrues at the rate of 1 hour earned for every 30 hours worked.

The Attorney General recently published proposed regulations further explaining the law.  The public comment period for the proposed regulations ends today.  The regulations do offer some interpretations that are not readily apparent from reading the law itself.

For example, under the proposed regulations, an employee is eligible to earn leave if his or her primary place of employment is in Massachusetts.  This simply means that the employee works the majority of his or her time in Massachusetts.  This may or may not be 51% of the employee’s time depending on how many localities the employee works.  Once an employee is eligible, under the proposed regulations, he or she will earn sick time for all hours worked, not only those worked within Massachusetts.

At this point, it is hard to speculate whether the proposed regulations will be changed before final publication and employers should consult with legal counsel as the effective date of the law approaches to determine their obligations.

For those of you who have lost count or lost track of effective dates of local ordinances, the following New Jersey municipalities have passed paid sick leave laws:

  • Bloomfield, effective June 30, 2015
  • East Orange, effective January 7, 2015;
  • Irvington, effective January 8, 2015;
  • Jersey City, effective January 24, 2014;
  • Montclair, effective March 4, 2015;
  • Newark, effective June 21, 2014;
  • Passaic, effective January 1, 2015;
  • Paterson, effective January 9, 2015; and
  • Trenton, effective March 4, 2015.

25318124_sEmployers in Trenton won a court battle earlier this year to make Trenton’s Ordinance only applicable to employers physically located in Trenton.  Other municipalities’ ordinances will apply to workers who provide services in the municipality for at least 80 hours in a year.  This means the ordinances apply to workers who travel to the municipalities to perform work even if not regularly scheduled to work there and even if the employer is not physically located in the municipality.

Posters are required in all of the municipalities. However, not every municipality has issued the required poster as of yet. The municipalities also require that notice be given to each employee.  For the municipalities where posters are available, if you need copies of the posters, the English posters can be accessed by clicking on the links below (other languages may be required by the ordinances and can be found on the municipalities’ websites):

I spoke with the Irvington Clerk’s office who advised that the Township will not be issuing a poster. Employers must still comply with the posting requirements, but must create their own posters. Bloomfield and East Orange have not yet issued a poster.

In further news, at least a few New Jersey representatives have realized the difficulties of trying to comply with nine different ordinances that are similar but not identical.  Legislation has been introduced in the New Jersey Assembly and Senate to prohibit municipalities from enacting laws that affect terms and conditions of employment.  A4363/S2865 were both introduced on May 7, 2015 and have been referred to the Labor Committees.  It will be interesting to see what kind of support the bills will get as the bill to require state-wide sick leave has stalled.

31497781_sPhiladelphia’s Managing Director’s Office has issued the Philadelphia Sick Leave Poster summarizing employees’ sick leave rights.  Just as a reminder, the law goes into effect May 13, 2015.

The law provides that employees who work in Philadelphia at least 40 hours in a year, must earn 1 hour of sick time for every 40 hours they work.  Leave is paid if the employer has 10 or more employers.  For employers with less than 10 employees, employees will earn unpaid time.  A maximum of 40 hours of sick time can be earned in a calendar year. Sick leave may be used for the employee’s own needs, to care for a family member, or for leave due to domestic abuse or sexual assault.

Employers should make sure that sick leave or PTO policies are updated to comply with the new law.

7282049_sJust a friendly reminder that New York City’s Earned Sick Time Act goes into effect today.  Employers with 5 or more employees must offer employees who work in NYC up to 5 days of paid leave per year.  Employees do not have to be permanently scheduled in NYC to earn sick time under the law.   Rather, any employee who works 80 or more hours per calendar year in NYC will earn sick time under the Ordinance.

Employees will earn 1 hour of paid sick time for every 30 hours worked.  Sick time begins to accrue as of today or when an employee is hired if the employee is hired after today.  An employee must work 120 days before being allowed to use any accrued sick time.

Time accrued but not used in the employer’s benefit calendar year must be allowed to be carried over.  However, employers can cap the maximum hours used in any year at 40 hours.  Any accrued but unused time that an employee has does not have to be paid out upon termination.  There is also an anti-retaliation provision in the law which prohibits employers from retaliating against employees sicking to use sick time earned under the law.

Employers who have employees subject to a collective bargaining agreement have a bit of a reprieve.  The law does not apply to any employees covered by a CBA in effect as of April 1st.  However, the law will apply to those employees once the CBA expires unless the new CBA waives the requirements of the law and provides for equivalent leave.

If employers have not already done so, we recommend revising sick leave policies to insure compliance with the law.  In addition, current employees must be given a Notice of Employee Rights by May 1st.  Any person hired after April 1, 2014, must be given the Notice upon hire.

The Civil Rights Bureau of the New York Attorney General’s office has just announced the settlement and discontinuance of an investigation into an upstate nursing home where the AG sought to determine “whether the [nursing home] accommodated and acceded to the racially discriminatory preferences of patients by making reassignments of nurses on the basis of race and took other employment-related action that created a hostile work environment for African-American employees.”

The investigation uncovered a posted “Care Plan” which “indicated that ‘No Colored Nurses’ were allowed on the floor” where a white patient was housed.  The AG’s investigation “also revealed that the [nursing home] does not train or guide supervisors on prohibited conduct … [and] does not educate its employees as to their rights” under Title VII and the New York State Human Rights Law.

As part of the settlement, the nursing home executed an “Assurance of Discontinuance” which provided that it must comply with a number of anti-discriminatory measures which include adopting a written EEOC policy, the appointment of an EEO officer, and the hiring of an outside diversity consultant to conduct anti-discrimination training.

Takeaway:  The preference of patients, clients or customers does not trump the anti-discrimination laws.

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Philadelphia has joined New York City and New Jersey, who recently passed new laws protecting pregnant employees. (See our September 25, 2013 and January 27, 2014 posts for details about those laws).

21246717_sOn January 20, 2014, Mayor Nutter  signed into a law Bill No. 130687, an ordinance amending the local law against discrimination and adding “pregnancy, childbirth or a related medical condition” as a protected class.  The ordinance specifically requires employers to provide reasonable accommodations to pregnant employees that do not cause an undue hardship.   

 Accommodations may include rest room breaks, periodic rest, assistance with manual labor, reassignment to a vacant position, and job restructuring.  The Ordinance also says that leave may be a reasonable accommodation.  In order to determine whether a requested accommodation creates an undue hardship, employers must use analysis similar to that done under the Americans with Disabilities Act.  Specifically, employers must take into consideration, the number of employees at the facility, the effect on expenses and resources or the impact on the operations of the employer. 

The Ordinance is effective now.  There is a posting requirement that requires employers to post a notice of rights by April 20, 2014.  The Philadelphia Commission on Human Rights will be developing the poster.