With the prevalence of medical marijuana laws in this country, I routinely get asked by employers what are the rules where an employee has a medical marijuana card?  Can I still do pre-employment screening?  What if they are using at work?  Do I have to accommodate medical marijuana in the workplace?

Get the answers to these and other questions at a free webinar I am doing in conjunction with the Manufacturers Alliance for Productivity and Innovation (MAPI).

The webinar is January 22 at 2 pm.  If you are interested in registering, more information can be found here.

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.

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.

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.

Today, as expected, Governor Murphy signed into law the Paid Sick Leave Act.  The Paid Sick Leave law is effective October 29, 2018.

The Law requires all New Jersey employers, regardless of size, to provide up to 40 hours of paid sick leave per year.  Full details about the law can be found in our alert here.

Employers do have some time to get ready for the new law.  Employers should review their paid time off policies to determine if changes need to be made.

In the meantime, we will keep an eye out for the required poster that will be developed by the Department of Labor and let you know when it is issued.

The NJ legislature has been busy in recent weeks with new employment laws.  Yesterday, Governor Murphy signed the Diane B. Allen Equal Pay Act, which will go into effect on July 1, 2018.

The law is probably one of the broadest equal pay laws in the country. Unlike most equal pay laws that prohibit pay disparity based on gender, the law prohibits employers from discriminating against employees in compensation based on membership in any protected class.  This means employers might see claims raised based on race, national origin, sexual orientation, etc.

More details about the new law can be found in our alert here.

This week, the 9th Circuit issued a decision that many say represents a sea change in how employers may defend against Equal Pay Claims. The decision in Rizo v. Yovino issued on April 9, 2018 overturned decades of interpretation of the Equal Pay Act and held that prior salary history may not be considered by employers.  However, there is some language in the ruling that appears to muddy the general rule announced by the Court.

Under the Equal Pay Act, it is illegal for employers to pay men and women different salaries for substantially similar work.  However, an employer may defeat an Equal Pay Act claim by proving that there were legitimate, non-discriminatory reasons for the salary differential.  Traditionally, courts have found that one of those legitimate, non-discriminatory reasons might be that the employer based the salary on the compensation the employee received at a prior job.

Indeed, many employers routinely ask what salaries applicants are currently making.  In that way, employers understand applicants’ salary expectations but also have an awareness of where to set the salary being offered to the applicant.

In recent times, some jurisdictions have passed laws prohibiting employers from asking about prior salary history.  The stated reason for these laws is that it perpetuates prior gender pay discrimination.  Basically, if an employee was subjected to a discriminatory wage rate at a prior employer, using that salary at the new employer would set the employee’s salary lower than other employees and, even if the new employer is not overtly acting in a discriminatory manner, would continue the past discriminatory practice.

Right now, the number of jurisdictions with such laws is limited.  However, the Rizo decision may change that.

Rizo, a school teacher, was hired by Fresno County as a math consultant.  Fresno County had a standard operating procedure that set ten salary steps.  When a teacher was hired, salary was set based on taking the teacher’s former salary and adding 5%.  Once the salary was calculated, the teacher was placed in the appropriate step of the pay scale.  After her hire, Rizo discovered that male math consultants had been hired at higher salary steps.  For its part, Fresno County claimed that the use of prior salary was a long-recognized legitimate factor and that if salaries were reviewed as a whole, more women were placed at higher salary steps than men.

The Ninth Circuit heard the case en banc in order to clarify the law as to whether prior salary history alone or in combination with other factors could be a legitimate factor “other than sex” that justified the salary differential.

The Ninth Circuit held that prior salary alone cannot be a legitimate factor other than sex. It then went even further, which caught most people off guard, and said that prior salary is never a legitimate business factor even if taken into consideration with other factors. The Court did say that there might be individualized cases where salary was negotiated and past salary came into play  and that it took no position on whether prior salary could be considered in those cases.

This ruling is contradictory and employers should not consider this language a safe harbor.  Given the other language in the opinion that repeatedly states that asking about prior salary frustrates the entire purposes of the Equal Pay Act and should never be considered, employers should not bank on the fact that there might be some conceivable fact pattern that allows employers to consider prior salary history.  This is true, despite the very valid points brought out in the concurring opinions, that there are times that prior salary history has nothing to do with gender.  For example, prior salary may have been set based on cost of living or demand for particular jobs.

Based on this ruling, the safest course of action would be for employers within the Ninth Circuit to never ask about prior salary history.  However, what happens if the applicant volunteers it while trying to negotiate terms and conditions of the new job?  This decision doesn’t really answer that question.

At this point, there are other circuits that allow for the consideration of prior salary history in combination with other factors.  It will be interesting to see if the Supreme Court decides to take up the split.

 

Monday, New York’s budget bill for FY 2019 was presented to the Governor for signature.  Buried among the usual budget line items are several provisions that will drastically affect employers.

In what seems to be a direct response to the #metoo movement, the bill sets training requirements, prohibits mandatory arbitration of discrimination claims, and outlaws confidentiality provisions in settlement agreements unless specifically requested by the complainant.

The employment related provisions are set forth in S7507-C.  Here are the highlights (or low lights depending on your point of view):

  • Mandatory Harassment Policies:  All employers must have a policy against harassment that complies with or exceeds the model harassment policy that will be developed by the Division on Human Rights.  At a minimum, the policy must:
    • prohibit sexual harassment consistent with guidance issued by the department in consultation with the division of human rights and provide examples of prohibited conduct that would constitute unlawful sexual harassment;
    • include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment and a statement that there may be applicable local laws;
    • include a standard complaint form;
    • include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties;
    • inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
    • clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
    • clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.
  •  Mandatory Training:  All employers must also provide “interactive” training to their employees.  The Division will also be developing a model training program that must include:
    • an explanation of sexual harassment consistent with guidance issued by the department in consultation with the division of human rights;
    • examples of conduct that would constitute unlawful sexual harassment;
    • information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
    • information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
    • address conduct by supervisors and any additional responsibilities for such supervisors.
  • Statements by Public Contractors:  Public contractors submitting a bid for work with the State must include a statement that they have a policy against sexual harassment and that they provide training to employees on that policy.  Public Contractors must generally comply with the policy and mandatory employment training that applies to all employers under new Labor Law §201-g which sets for the policy and training requirements.
  • Prohibition on Mandatory Arbitration Agreements:  No employer may require that a claim of unlawful discrimination or sexual harassment be submitted to mandatory arbitration.  Voluntary arbitration provisions are still okay.  Collective bargaining agreements trump this provision, so if the CBA requires arbitration of discrimination or sexual harassment, then that would not run afoul of the law.  The law only bans this on a prospective basis and the law will not apply to any agreements entered into prior to the effective date of the law.
  • Bar on Most Confidentiality Agreements:  Settlement agreements may not contain confidentiality provisions requiring the complainant to keep the facts of the harassment or discrimination confidential unless the complainant voluntarily agrees to it.  Employers may still put a draft provision in agreements requiring confidentiality for the complainant to review.  The complainant must be given 21 days to review the provision. If the complainant accepts the provision, there must be a separate writing stating that.  Complainants must also have 7 days to revoke their acceptance of the agreement.
  • Provides Protection (and a Cause of Action) for Non-Employees:  the bill makes clear that an employer may be held liable if one of its employees sexually harasses a contractor, subcontractor, vendor, consultant or other non-employee providing services to the employer.

These provisions will go into effect 180 days after the law is enacted.  We assume that the forthcoming regulations may clarify certain aspects of the law such as how frequently harassment training must occur.  We will keep you updated when the regulations are issued.

In the meantime, employers should begin assessing their harassment policies and training programs.  Employers should also review settlement agreements and employment agreements for compliance with the law.