Category: Labor & Employment

January 6, 2014 Deadline For Employers To Comply With New Jersey Gender Equity Notice And Posting Requirements

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Beginning Monday, January 6, 2014, employers with fifty (50) or more employees are required to comply with the New Jersey Gender Equity posting and notice requirements.  The New Jersey law, passed in September of 2012, requires that all covered employers (1) post a notice regarding gender equity in a conspicuous place accessible by all employees, (2) provide a copy of the notice to all employees annually, and (3) receive a signed acknowledgment from the employees each year.

Posting

The New Jersey Department of Labor has issued a poster which is now available here in English and here in Spanish.  Employers must post this notice in a conspicuous place at each New Jersey work location by January 6, 2014. In the event that a covered employer has an internet site or intranet site for exclusive use by its employees, and all employees have access to the site, the employer may post the notice on the website to satisfy the posting requirement.

Notice

The law requires that every employee receive a copy of the notice annually.  For existing employees, the notice must be received by February 5, 2014.  For all employees hired after January 6, 2014, the notice must be provided to the employee at the time of hire.  Each year thereafter, all new hires must be provided with a notice at the time of hire and all other employees must receive the notice by December 31. Employees must also be provided a copy upon request.  The employer may provide the notice in print, through email, or on the company internet/intranet if (1) the site is for the exclusive use of the employees, (2) can be accessed by all employees, and (3) the employer notifies the employees that the notice has been posted on the internet/intranet.

Acknowledgment

Within thirty (30) days of issuing the annual notice, the employee must acknowledge receipt and understanding of the notice.  The acknowledgment can be in writing or by electronic verification. Employers must ensure that they follow-up with employees to confirm that the employee has received and understands the requirements each time the notice is issued.

Failure to comply with these requirements can result in monetary fines and other penalties.

Article by:

Saranne E. Weimer

Of:

Giordano, Halleran & Ciesla, P.C.

Federal Court Prohibits Union From Striking To Prevent Sale Of Business To Non-Union Employer

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Last week a New York federal district court granted a preliminary injunction against the Teamsters union after it threatened to go on strike against Will Poultry, Inc. if the company proceeded to sell its business to a non-union purchaser who had no plans of assuming the parties’ collective bargaining agreement (CBA).The parties’ CBA did not have a “successor clause” or any other language obligating a purchaser to assume or otherwise recognize the Teamsters union upon a sale. When the Teamsters demanded that Will Poultry modify the CBA to include a “successor clause” in advance of the sale or face a strike, the company filed for an injunction in federal court.

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While the CBA did not contain an express “no strike clause,” it did have a grievance/arbitration provision, and the court held that constituted an “implied” no strike clause. Accordingly, the court issued an order prohibiting the union from striking in violation of the implied no strike clause, which almost certainly would have killed the pending sale.

While the New York federal court correctly found an implied no strike clause in this case, this case should serve as a reminder that you should always review your CBA in advance of successor contract negotiations to make sure any language issues (like the lack of a no strike clause) can be addressed.

The Teamsters have filed for an appeal of the decision, but a copy of the district court’s order can be found here.

Article by:

David J. Pryzbylski

Of:

Barnes & Thornburg LLP

Will New Jersey Go “Ban the Box” and Beyond? New Jersey Takes Step to Prohibit Employers From Asking About a Job Applicant’s Criminal History

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Recently, in a 6-3 vote, New Jersey’s Assembly Labor Committee advanced a bill (A-3837), known as the Opportunity to Compete Act, that would prohibit New Jersey employers with 15 or more employees from asking candidates about their criminal history on employment applications, and from conducting criminal background checks on applicants prior to a conditional job offer. If passed, this legislation would become one of the toughest “ban the box” measures in the nation (derived from the ubiquitous check box on employment applications inquiring whether an applicant has a criminal record), and would place several new administrative burdens on employers. New Jersey would join the 64 states, counties and cities (including Newark, New Jersey) that have already enacted laws aimed at benefiting job seekers with a criminal history. And many states (including New York) prohibit employers from disqualifying an applicant based on a conviction absent a clear nexus between the nature of the conviction and the job sought.

Under the proposed legislation, only after the employer determines the candidate is qualified and provides a conditional job offer, may it inquire about and consider the individual’s criminal history. Then, before the employer may look into the candidate’s criminal history, it must first provide the candidate with a written notice of the inquiry (along with a “Notice of Rights) and obtain the candidate’s consent.

The bill authorizes employers to consider in their employment decision making process convictions for certain serious crimes regardless of when the crime occurred. These crimes include murder or attempted murder, arson, a sex offense for which the offender served time in State prison and is required to register as a sex offender, robbery, kidnapping, human trafficking, possession of weapons, burglary, aggravated assault and terrorism. Separately, employers may only consider other crimes of the 1st through 4th degree if the crime was committed within the previous 10 years. Employers may also consider convictions for disorderly persons offenses that occurred within the last 5 years and pending criminal charges until the case is dismissed. The bill further provides that if any of the candidate’s criminal history is subject to consideration by employers due to the fact that it occurred within 10 years for crimes of the 1st through 4th degree, or 5 years for disorderly persons offenses, then the employer may also consider any prior criminal history, regardless of when it occurred.

Under the bill, when making an employment decision, employers may not consider or require a candidate to disclose or reveal any arrest or criminal accusation made against the candidate which is not then pending or which did not result in a conviction. Records which have been erased or expunged, records of an executive pardon or legally nullified records may not be considered by employers, nor may the employer consider an adjudication of delinquency of a juvenile, any violation of a municipal ordinance or any record which has been sealed.

The proposed legislation requires employers to make a good faith effort to discuss with the candidate any questions or concerns related to the candidate’s criminal history and provide the candidate with an opportunity to explain and contextualize any crime or offense, provide evidence of rehabilitation, and rebut any inaccuracies in the criminal history.

In deciding whether to hire a candidate, employers must consider the results of any criminal history inquiry in combination with factors such as: (1) information provided about the degree of the candidate’s rehabilitation and good conduct; (2) information provided about the accuracy of the criminal record; (3) the amount of time that has elapsed since the conviction or release from custody; (4) the nature and circumstances surrounding the crime(s); and (5) the duties and settings of the job. This last factor—job-relatedness—is critical, as employers may not disqualify a candidate if the nature of his or her conviction bears no relationship to the job sought. The reasonable consideration of these factors must be documented by employers on a “Criminal Record Consideration Form.”

If an employer makes an adverse employment decision, including rescinding a job offer, after a discussion of a candidate’s criminal history, the employer must provide the candidate in one package by registered mail: (1) written notification of the adverse employment decision; (2) a copy of the results of the criminal history inquiry; and (3) a completed copy of the Criminal Record Consideration Form.

A candidate who received an adverse employment decision has 10 business days after receipt of this written information to provide evidence to the employer related to the accuracy and relevance of the results of the criminal history inquiry. Employers may, but are not required to, hold the position open for the candidate. Employers who uphold an adverse employment decision after considering any additional information provided by the candidate are required to provide to the candidate a written notice of the final decision within 45 days of receipt of the additional information.

There is good news for employers here: the bill does not provide applicants with the ability to sue them in court for a violation of the law. Instead, the applicant would have to file a complaint with the New Jersey’s Division on Civil Rights (“DCR”) in the Department of Law and Public Safety, and the DCR may impose civil fines ranging from $500 to $7,500 depending on the number of employees the employer has and whether the employer has committed previous violations. Additionally, as noted above, the bill does not apply to smaller employers with under 15 employees. Moreover, employers can take solace in that the bill would give employers the highest protection against negligent hiring/retention suits of any state in the nation in the form of a “grossly negligent” standard, meaning that there must be a finding that the employer consciously acted with a reckless disregard for the safety of others in its hiring decision.

There is no certainty that the proposed Opportunity to Compete Act will be passed into law in its current form or any other form for that matter. Governor Chris Christie, who could very well exercise his veto power, has not indicated whether or not he supports the bill. Needless to say, we will closely monitor this legislation.

Article by:

David M. Katz

Of:

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

New Grants to Help More Students Pursue STEM (Science, Technology, Engineering, Math) Careers

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Tonight, I’m announcing a new challenge to redesign America’s high schools so they better equip graduates for the demands of a high-tech economy. And we’ll reward schools that develop new partnerships with colleges and employers, and create classes that focus on science, technology, engineering and math – the skills today’s employers are looking for to fill the jobs that are there right now and will be there in the future. President Obama, 2013 State of the Union

In November 2013, President Obama announced a new $100 million competition launched by the U.S. Department of Labor to help American high schools prepare students for college and for careers in a 21st-century economy.

Computer Science Education Week is a perfect time to highlight this new administration effort — called Youth CareerConnect — to inspire and prepare girls and boys in communities across the country to be the designers, programmers, engineers, and innovators of the future through increasing their access to hands-on, real-world-relevant education and skills.

Through Youth CareerConnect, up to 40 grants will be awarded to partnerships between local schools systems, employers, community colleges or universities, and others that are committed to strengthening America’s talent pipeline and providing students with industry-relevant education to prepare them for college and careers.

Schools and their partners will be challenged to focus on addressing key shortages in “H-1B fields” — occupations tied to the H1-B temporary-visa program, which are predominantly in science, technology, engineering and mathematics.

This is an exciting investment that will prepare more American students to be the innovators, researchers, engineers, and entrepreneurs of the future. This initiative also, in part, answers a call by the President’s Council of Advisors on Science and Technology in its 2010 report on STEM K-12 Education, Prepare and Inspire, to increase the number of STEM-focused schools across the country.

Applicants will be judged on their efforts to serve a diverse student population, which will ensure access to preparation and training in the STEM fields for girls and minority groups currently underrepresented in many of these careers.

Importantly, the competition builds on the strong focus of OSTP and the White House Council on Women and Girls on increasing girls’ access to STEM fields and represents an important investment to both level the playing field for women and minority students and to provide them with the inspiration, access to career models, hands-on experiences, and rigorous curricula to prepare them to become the engineers, computer scientists and other STEM leaders of the future.

Success in this competition and meeting the broader challenge of giving all students access to real-world-relevant education experiences will require an all-hands-on-deck effort. That’s why Youth CareerConnect calls on businesses and institutions of higher education to join with school districts in putting together proposals to improve college and career readiness for more high school students.

Applications are due Jan. 27, 2014, so learn more at:  http://www.doleta.gov/ycc/

By Danielle Carnival and Kumar Garg.

Editor’s note: The following has been cross-posted from the WhiteHouse.gov blog. 

Danielle Carnival is a senior policy advisor and Kumar Garg is the assistant director for learning and innovation at the White House Office of Science and Technology Policy. 

 

Article by:

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Employers’ Immigration Update – No. 12 December 2013

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H-2B Employers Using Temporary Foreign Workers Not Required to Pay Supplemental Prevailing Wages

In a significant decision likely to have a major impact on H-2B employers, the Department of Labor’s Board of Alien Labor Certification Appeals (BALCA) has rejected the DOL’s attempt to apply supplemental prevailing wage determinations (PWDs) retroactively on employers who use H-2B temporary foreign labor. The action came in an Appeals Board Decision rendered on December 3.

Ninth Circuit Requires Reimbursement of H-2A Expenses

In the latest in a series of decisions addressing the proper allocation of travel and immigration fee expenses between employers and employees utilizing the H-2A agricultural guest worker program, the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, has ruled that an employer must reimburse an H-2A worker for the employee’s travel and immigration expenses in the initial week of employment.

Health History Can Block Entry to U.S.

A disturbing trend appears to have developed in the last few years in admissions review at the Canadian border. U.S. border guards reportedly are barring entry to anyone they deem a threat to themselves, others or their property based on the person’s personal health history. The Information and Privacy Commissioner of Ontario will “look into the matter to ensure that personal health information isn’t compromised.” One 2011 report states, “More than a dozen Canadians have told the Psychiatric Patient Advocate Office in Toronto within the past year that they were blocked from entering the United States after their records of mental illness were shared with the U.S. Department of Homeland Security.”

New E-Verify MOU to be Released

New Memorandums of Understanding (MOUs) for E-Verify will be released on December 8, 2013, according to USCIS. Current E-Verify users will not be required to execute a new MOU, but they are bound by any and all enhancements to the E-Verify program, including the new or revised MOU that applies to their access method; therefore, they should become familiar with the new or revised MOU that applies to their access method. Employers who join the E-Verify program on or after December 8, 2013, will execute a new or revised MOU (Revision Date 06/01/2013) during enrollment.

Restaurant Manager Indicted on Harboring Charges

The manager of a restaurant who failed to complete I-9s and provide housing for his workers has been indicted on harboring charges. The manager faces a maximum penalty of 10 years in federal prison and a fine of up to $250,000 for each count in the indictment. These charges illustrate that ICE techniques for worksite enforcement are not limited to I-9 inspections and fines.

 

Article by:

Of:

Jackson Lewis P.C.

 

Labor and Employment Law: Tri-State Round-Up

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New York

“Pregnant Workers Fairness Act” Becomes Law in New York City

On October 2, 2013, New York City Mayor Michael Bloomberg signed into law the “Pregnant Workers Fairness Act” (PWFA) in an attempt to plug a perceived gap in the Pregnancy Discrimination Act, which does not require accommodation for pregnant employees. Once the new law takes effect in early February 2014, it will require employers in New York City to offer reasonable accommodation for pregnancy, childbirth and related medical conditions.

The PWFA will apply to all businesses in New York City with four or more employees, including independent contractors. It requires that written notice of its provisions be presented to all new employees at the time of hire, and that a poster advising employees of their rights under the PWFA—to be produced by the City’s Commission on Human Rights—be posted within the employer’s facility. Employers that are able to demonstrate that compliance would pose an undue hardship are excluded from compliance. Employees who believe they have been the victims of discrimination in violation of the PWFA have the option of either filing a complaint with the New York City Commission on Human Rights or bringing a court action against their employer.

NYS Department of Labor Proposes New Wage Deduction Regulations

Employers in New York have been waiting since June 2012 for guidance regarding amendments made that month to Section 193 of the New York Labor Law restoring employers’ ability to make deductions from employee wages for overpayments and advances, but only in specific, as-yet-undefined circumstances. The wait, however, appears to be nearing an end.

In May 2013, the NYSDOL issued proposed wage deduction regulations that address not only deductions for overpayments and advances, but also deductions deemed permissible because they are “for the benefit of the employee.” The complete proposed regulations are available on the NYSDOL website (www.labor.ny.gov./legal/wage-deduction-regulation.shtm), but the following is a brief summary:

  • Deductions for Overpayments

    Written authorization from the employee is not required for the employer to make deductions for unintended overpayments. The proposed regulations specify in detail, however, the timing, frequency, amount permitted and advance notice required for such deductions, along with dispute resolution procedures and the method by which improper deductions are to be repaid.

  • Deductions in Repayment of an Advance

    The new regulations state that any provision of money to an employee by an employer that is accompanied by the accrual of interest, fees or a repayment amount of anything other than the specific amount provided to the employee is not an advance, and it may not be recouped via wage deduction. Furthermore, the parties must agree in writing to the terms of repayment before the advance is given; and once agreement is reached, no further permission or notice is required until the entire amount of the advance has been recouped.

  • Deductions for the Benefit of the Employee

    Such deductions are expressly limited to those listed in Section 193 of New York’s Labor Law, along with benefits for health and welfare, pension and savings, charity, representation, transportation, food and lodging.

Employers are encouraged to proceed with caution if they wish to implement a program for recoupment of overpayments and wage advances, as the wage deduction regulations proposed by the NYSDOL are not yet final and are thus subject to change.

New Jersey

New State Law Limits Employer Access to Employees’ Social Media Accounts

A new law set to take effect on December 1, 2013 will make New Jersey the latest of a growing number of states—including Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Mexico, Oregon, Utah and Washington—that prohibit employers from requesting access to the social media accounts of current or prospective employees. The law also prohibits employers from retaliating or discriminating against any such individual who either refuses to provide such access or who complains about what he or she believes to be a violation of the law.

The law applies only to those social media accounts that are the exclusive personal property of the employee or prospective employee. Employers are, however, permitted to obtain access to private accounts for the purposes of ensuring legal or regulatory compliance, investigating employment-related misconduct or investigating a potential disclosure of the employer’s proprietary or confidential information. The law does not prohibit employers from accessing accounts its employees use for business-related purposes, and employer review of material that employees or prospective employees post publicly on an otherwise private social media account remains lawful.

Enforcement of New Jersey’s social media law is left solely to the state’s Department of Labor; the law does not provide individuals with a private right of action. Companies may be fined up to $1,000 for their first violation and $2,500 for violations thereafter.

Amendment to NJLAD Prohibits Retaliation Against Employees Who Seek Information About Their Coworkers

An amendment to New Jersey’s Law Against Discrimination (NJLAD), signed into law on August 28, 2013 and given immediate effect, adds a nonretaliation pay equity measure to NJLAD. Intended to protect employees who request information about other employees’ or former employees’ compensation or potential membership in a protected class, the amendment prohibits employer retaliation for such a request, provided the request is made either as part of an investigation into potential discriminatory treatment or to take legal action for such discriminatory treatment with regard to compensation.

It is important to note that the amendment does not require employers to take action in response to such a request from an employee or to provide him or her with the information sought while employers are free to deny such requests; they are, however, prohibited from retaliating against the employee making the request.

Employers in New Jersey should consider examining and, if necessary, revising their policies pertaining to requests for and disclosure of protected information, and they should take steps to make sure that supervisory and managerial employees are aware of NJLAD’s new provisions.

“NJ Safe Act” Requires Unpaid Leave for Employees Affected by Domestic or Sexual Violence

A new law that took effect on October 1, 2013 enables eligible employees within New Jersey to take 20 days of unpaid leave within a 12-month period in the event that the employee, his or her child, parent, spouse or domestic or civil union partner is the victim of domestic or sexual violence.

Dubbed the New Jersey Security and Financial Empowerment Act, but better known as the “NJ Safe Act,” the law applies to employers within the state with 25 or more employees. Its intended purpose is to allow victims of assault, or those who are giving care to such victims of assault, to engage in a series of activities related to such victims’ recovery without fear of losing their jobs.

The NJ Safe Act covers those employees who have worked for a covered employer for at least 12 months and who have worked at least 1,000 hours during the previous 12 months. Leave may be taken within one year of an occurrence of domestic violence or sexual assault, and it may be taken intermittently. If the need for leave is foreseeable, employees seeking such leave are required to provide written notice to their employer as far in advance as possible. Employers are permitted to request documentation from the employee supporting the employee’s need for leave. The act also requires employers to post a notice made available by the New Jersey Commissioner of Labor and Workforce Development to inform employees of their rights.

Employees are provided with a private right of action under the NJ Safe Act and are able to seek relief in the New Jersey Superior Court up to one year after an alleged violation. Prevailing plaintiffs may be entitled to recovery of economic and noneconomic damages, as well as attorneys’ fees, a civil fine and an order of reinstatement. The law, like most of New Jersey’s employment laws, contains a provision that prohibits retaliation against an employee who exercises his or her rights under it.

New Jersey employers with more than 25 employees should take steps to ensure that their leave policies comply with the new law. Such employers should also make sure that any employee training on the subject of retaliation includes information on the NJ Safe Act and that they have posted the required materials within their workplaces.

Connecticut

Significant Changes Made to Connecticut’s Personnel Files Act

As a result of an amendment to Connecticut’s Personnel Files Act that took effect on October 1, 2013, employers within the state now have a dramatically shorter period of time within which to respond to requests from current or former employees to inspect the contents of their personnel files. Whereas the law previously required employers to permit such inspection “within a reasonable period of time,” the law now mandates that current employees be allowed to inspect their files within seven days of a written request; former employees must receive the same opportunity within ten days. Such inspections are to take place during regular business hours and at a location at, or reasonably near, the employee’s place of employment.

The amendment also places a number of other new requirements on Connecticut employers. Among them are the following:

  • Employees must now be provided with a copy of any documented disciplinary action not more than one business day after the action is imposed;
  • Employees must “immediately” be given copies of any documented notice of the termination of their employment;
  • Employers must now include a “clear and conspicuous” statement in any written termination or disciplinary notice that, should an employee disagree with any information contained in such a document, the employee may submit a written explanation of his or her position. If an employee chooses to submit such a statement, employers are required to include it within the employee’s personnel file; employers must also include the employee’s statement with any transmission of or disclosure from the file to any third party.

As before, Connecticut’s Personnel Files Act does not contain a private right of action. The state’s Department of Labor may impose a fine of up to $500 for a first violation and up to $1,000 for subsequent violations involving the same employee.

 

Article by:

Of:

Vedder Price

Supreme Court To Consider Employers’ Arguments Regarding Contraceptive Mandate

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The United States Supreme Court will revisit the Affordable Care Act (“ACA”)requirement that most employers provide contraceptive coverage in employee health insurance plans. On November 26, 2013, the Court accepted two cases which center on the issue, each of which resulted in a different outcome. The ACA currently provides an exemption to certain non-profit religious organizations, but there is no such exemption for private employers.

The Supreme Court will now consider whether private companies should be able to refuse to provide employees with contraception coverage under their health plans on the basis of religion. Further, the Supreme Court may consider whether for-profit corporations may validly claim protection under freedom of religion.

In Sebelius v. Hobby Lobby Stores, Inc.[1], the U.S. Court of Appeals for the 10th Circuit ruled that a requirement which forced Hobby Lobby to comply with the contraception coverage mandate violated the Religious Freedom Restoration Act, which protects religious freedom. Hobby Lobby is owned by David and Barbara Green, who have stated that they strive to run their company in accordance with their Christian beliefs. The Greens have no objection to preventive contraception, but only medication which may prevent human embryos from being implanted in the womb (i.e., “the morning-after pill”).

The 10th Circuit Appeals Court ruled in favor of Hobby Lobby based upon its  decision in a previous case, Citizens United v. Federal Election Commission[2], which held that corporations hold political speech rights akin to individuals. Taking this reasoning further, if a corporation can have political speech rights, then it should also have protection for its religious expression, according to the Court.

In Conestoga Wood Specialties v. Sebelius[3], the U.S. Court of Appeals for the 3rd Circuit viewed the issue differently. The Court upheld the contraception coverage mandate based upon what it perceived as a “total absence of case law” to support any argument that corporations are guaranteed religious protection.

According to the ACA, contraceptive coverage provided by employers’ group health insurance plans is “lawful and essential” to women’s health; however, certain businesses assert that their religious liberty is more important. Ultimately, the United States Supreme Court will cast the deciding vote.

[1] Sebelius v. Hobby Lobby Stores, Inc., 723 F.3d 1114 (10th Cir. 2013).

[2] Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

[3] Conestoga Woods Specialties v. Sebelius, 724 F.3d 377 (3d Cir. 2013).

 

Article by:

Brittany Blackburn Koch

Of:

McBrayer, McGinnis, Leslie and Kirkland, PLLC

 

Holiday Warning Update: Cut Sexual Harassment From Your Holiday Party Invitation List (seriously)

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OK, we admit it is somewhat cliché for employment lawyers to circulate client alerts every December warning about the dangers lurking at company holiday parties. But when real-life examples show just how expensive claims arising from these events can be, we would be remiss not to issue yet another such alert.

Last December, we issued an alert concerning a federal district court’s refusal to dismiss a holiday party related sexual harassment lawsuit filed against an employer,Shiner v. State University of New York at Buffalo (Case No. 11-CV-01024).

The case finally settled in August 2013, with the employer paying the plaintiff a whopping $255,000.

The plaintiff, Leslie Shiner, was a clerk at the University at Buffalo Dental School. She alleged that she had not wanted to attend the school’s annual holiday party because the conduct at previous events made her uncomfortable. However, a supervisor encouraged her to attend the party, which was held at a local bar. During the party, an associate dean, with supervisory authority over the plaintiff, allegedly made sexual advances toward her that included fondling her, putting his tongue in her ear and pulling her onto his lap. Another department official with supervisory authority allegedly cheered him on.

In early 2012, the plaintiff filed claims of sexual harassment under state and federal anti-discrimination laws, as well common law claims of assault and battery. In November 2012, as we wrote last year, the judge denied the defendant-employer’s motion to dismiss and allowed the case to proceed. After months of discovery and over a year and a half after the plaintiff filed her lawsuit, her employer ultimately agreed to pay her $255,000 to settle her claims. That amount obviously does not include the attorneys’ fees expended by the employer during a protracted time period of motion practice and discovery. Not including the inconveniences to the employer, the total out-of-pocket cost of the case to the employer likely exceeded $350,000 or $400,000.

The lesson for all employers is that the lighthearted, and sometimes drunken, atmosphere at office holiday parties does not equate to a free pass for unwanted touching, lewd comments and other types of inappropriate behavior that otherwise would not be tolerated. As the University of Buffalo Dental School eventually had to recognize when it agreed to settlement, employers who fail to protect themselves can be held liable for workers’ conduct that might easily get out of hand at festive events particularly when there is drinking.

The following are examples of ways employers can reduce the threat of dangerous misbehavior:

  • Remind employees prior to the event that the company’s code of conduct remains in effect during the event
  • Establish procedures in advance to handle any inappropriate behavior that might occur
  • Limit the amount of drinking and provide taxis or other safe transportation home to employees who may be intoxicated

If an employee does come to you with a sexual harassment complaint, please consider it seriously and take prompt action as necessary to investigate and stop the harassment.

 

Article by:

Michael B. Kass

Of:

Armstrong Teasdale

Supreme Court Declines Review of Intern Compensability Issue

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While the compensability of time spent in internship programs continues to be an hotly contested litigation issue, the United States Supreme Court has declined an opportunity to provide clarity in this area, denying certiorari to a Florida medical billing intern whose claim was rejected last year by the Eleventh Circuit.  Kaplan v. Code Blue Billing & Coding, Inc., 2013 U.S. LEXIS 8046 (U.S. 2013).

Perhaps multiple requests for high court review of an appellate decision will be necessary before the Supreme Court addresses the status of interns under the FLSA, as was required before the Court accepted review of the exempt status of pharmaceutical sales representatives.

Article by:

Noel P. Tripp

Of:

Jackson Lewis P.C.

The Christmas Conundrum, continued

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Last week we discussed the basic framework for providing employees with days off during recognized religious holidays.  A related issue commonly presented during the holiday season is whether employees must be paid for their time off.

While an employer may have to give an employee time off in order to observe a religious holiday in accordance with Title VII of the Civil Rights Act, the “reasonable accommodation” does not have to be accompanied by pay.  Although it may not be a popular decision, denying paid time off is perfectly acceptable when it comes to non-exempt (hourly) employees. Generally speaking, an employer is only required to pay hourly employees for time actually worked. For exempt employees (generally, salaried) who are given time off, the full weekly salary must be paid if they worked hours during the week in which the holiday falls. As always, a contract or collective bargaining agreement can create an affirmative obligation to provide paid time off.

Notwithstanding the foregoing, private employers or employees engaging in work with the federal government should be conscious of two possible exceptions to their paid time off rules.  The federal government provides its employees with paid time off on several recognized holidays and, in addition, often provides overtime pay to those employees who must work during the holidays. Although this is not legally mandated for private employers, persons who work under a government service contract subject to the McNamara O’Hara Service Contract Act and persons who work under a government labor contract subject to the Davis-Bacon and Related Acts must receive holiday and vacation benefits. The exact terms of these benefits depend on worker classification and contract.

Always remember, offering paid time off around the holidays is a gesture of good will. Regardless of an employer’s legal obligations, offering paid time off can go a long way in making the holidays a happier time for employees.

Article by:

W. Chapman Hopkins

Of:

McBrayer, McGinnis, Leslie and Kirkland, PLLC