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Paid Sick Leave Spreads Throughout New Jersey

While the New Jersey Senate and Assembly continue to debate state-wide sick leave laws, four more New Jersey municipalities have enacted mandatory sick leave laws for private employers. Effective January 2015, East Orange, Paterson, Irvington and Passaic will join Newark and Jersey City in requiring paid sick time for employees.

Under the recently passed ordinances of those municipalities, most employees of private employers who work a total of 80 hours or more in a covered municipality will accrue at least one hour of paid sick time for every 30 hours worked. For employees who are exempt from the overtime requirements of the Fair Labor Standards Act, employers should assume a 40 hour workweek, unless the employee’s normal workweek is less than 40 hours. If the exempt employee’s normal workweek is less than 40 hours, accrual may be based on the employee’s normal workweek.

Employees who work for employers with 10 or more employees in the municipality may accrue up to 40 hours of paid sick time in a calendar year, while employees who work for employers with less than 10 employees in the municipality may accrue up to 24 hours of paid sick time per calendar year, with some exceptions. For example, home health care workers and food service workers may accrue up to 40 hours per calendar year regardless of the size of the employer.

Paid sick time accrual begins upon the effective date of the applicable ordinance and thereafter upon the date of hire. However, accrued time may not be used until after the 90th calendar day of employment. After 90 calendar days of employment, employees must be permitted to use accrued sick time for several reasons including:

To care for their own or a family member’s sickness, need for medical diagnosis, care or treatment of a sickness, or need for preventative medical care; or
Due to a forced closing of the employee’s place of business or to care for a child whose school or place of care has a forced closing, or to care for a family member when a health authority or a health care provider has determined that the family member’s exposure to a communicable disease would jeopardize the health of other’s in the community.

The ordinances allow an employer to require reasonable advance notice where the leave is foreseeable and as soon as practicable where it is not. The ordinances also permit an employer to request that the employee confirm in writing that the time was used for a permissible purpose, and where the employee has been out for three or more consecutive days, the employer may request reasonable supporting documentation from a health care professional. An employer may not, however, require that the documentation explain the nature of the illness. To the extent any health information is disclosed, such information must be treated as confidential and only disclosed to the affected employee or with the affected employee’s permission.

Once accrued, up to 40 hours of paid sick time may be carried over into the next calendar year. An employer may, however, elect to pay its employees for unused sick time at the end of the calendar year in lieu of carry over. Note that even where an employee does carry over accrued paid sick time, an employer is not required to permit the employee to take more than 40 hours of paid sick time in a calendar year. The “calendar year” may be defined by the employer as any regular consecutive 12-month period.

Employers who already have paid time off policies that provide sufficient paid time to satisfy the total annual accrual requirements of the applicable ordinance, and permit such paid time off to be used for the same purposes identified in the ordinance, are not required to provide additional paid time. Employers should be mindful, however, that if their current policy only provides paid time off to full-time employees, either their policy should be modified to extend such paid time off to all employees who work more than 80 hours in a covered municipality or a separate policy should be implemented for part-time and temporary employees that satisfies the minimum requirements of any applicable ordinance.

While none of the ordinances require an employer to pay employees for accrued but unused sick time upon separation, if an employee is rehired within six months, any accrued but unused sick time must be reinstated. Likewise, if an employee is transferred within the municipality the employee retains any unused sick time.

Each of the ordinances provide expansive protections against retaliation and require employers to provide individual employees with notice of their rights under the law. Notice to individual employees must be in English and in the employee’s primary language, provided the employee’s primary language is the primary language of at least 10% of the employer’s workforce. Employers are also required to display a poster in a conspicuous and accessible place in each covered business establishment. In addition, employers must maintain records documenting their compliance with the applicable ordinance.

Failure to comply with these ordinances may result in fines, civil penalties, or a private action by a current or former employee. As such, employers in the covered municipalities should familiarize themselves with the applicable ordinances and take steps to ensure compliance.

ARTICLE BY

Lisa M. Harris

Sheppard, Mullin, Richter & Hampton LLP

Ebola and Potential Labor Relations Issues

The Ebola panic presently sweeping the U.S. raises a host of potential issues for employers. We recently provided guidance to help employers ensure employee safety while also complying with legal obligations under the Americans with Disabilities Act and similar laws. In addition, the Occupational Health & Safety Administration (OSHA) recently released a comprehensive summary of requirements, recommendations and guidelines for employers and workers. The escalating concern over Ebola also raises potential labor relations issues. Many of the workplaces with the potential for employees to come into contact with infected persons or material – health care providers, cleaning services, waste disposal firms, ambulance and other transportation services, to name a few – are unionized, and unions have begun to seek greater protections for their members. Non-union employers may be affected as well, as at least one group of non-union employees has engaged in a strike to protest inadequate safety measures.

An important step all employers can take, whether unionized or not, is to share information disseminated by the Centers for Disease Control (CDC) and other public health agencies to educate their employees. Indeed, a recent Washington Post article highlighted the information gap that is fueling public fears. Sharing accurate, up to date information should help address employee concerns and avoid potential workplace disruptions based on unfounded fears.

Beyond the dissemination of information, in workplaces where employees may have some potential to come into contact with persons or material infected with the Ebola virus, employers must comply with applicable workplace health and safety laws and regulations, including making sure that effective protocols are in place, that protective equipment and clothing are available, and that employees receive appropriate training. Not surprisingly, healthcare workers – nurses in particular – have been at the forefront in demanding increased protection and training.

National Nurses United (NNU) has been especially outspoken. In addition to its criticism of the Texas Health Presbyterian Hospital, where two nurses caring for an Ebola patient became infected themselves, it has launched a multi-pronged campaign to achieve increased training and protection for nurses who may be called upon to treat Ebola patients. As part of their campaign, they have released an Ebola Toolkit that includes a guide to state and federal whistleblower laws and a comprehensive set of collective bargaining demands. Their demands include detailed proposals for Ebola-specific protocols, training and protective equipment, creation of a joint labor-management infectious disease task force, medical services for exposed or potentially exposed employees, and full paid time off for nurses exposed to an infectious disease. Healthcare employers should expect to be presented with comparable demands from the unions representing their employees, if they have not done so already.

Other unions are engaging in similar activities. As the largest union in the U.S. representing healthcare workers, cleaners, and other service employees who could potentially come into contact with a person or material infected by Ebola, the SEIU has been particularly active. Its public efforts to date have been focused largely on educating union members and training them to use protective equipment.

In addition to union advocacy and education, there has been at least one work stoppage arising from employees’ Ebola concerns. At LaGuardia airport, a group of more than 200 non-union aircraft cabin cleaners recently engaged in a one-day strike to protest what they claimed were inadequate protections from exposure to Ebola. In that case, the SEIU is attempting to organize the striking cleaners, but regardless of whether non-union employees are seeking union representation, they have the right under the National Labor Relations Act to engage in concerted activity for their mutual aid and protection, such as a strike to protest working conditions related to Ebola risks.

Education and communication are critical to addressing employees’ Ebola-related concerns and avoiding workplace disruptions based on unfounded fears. In unionized workplaces, union representatives should be included in the education and communication process. Of course, all employers must comply with applicable workplace safety and health laws and regulations. Depending upon the circumstances, unionized employers may have bargaining obligations with respect to additional measures they seek to implement in response to Ebola concerns. They may also be faced with bargaining demands by employees seeking greater protection. Finally, it is important for non-union employers to understand that their employees also have the right to act in concert for their mutual aid or protection.

ARTICLE BY

Scott Faust

Proskauer Rose LLP

Wage Deductions in West Virginia

Most West Virginia employers must comply with two wage and hour laws: the federal Fair Labor Standards Act (“FLSA”) and the West Virginia Wage Payment and Collection Act (“WPCA”). Both laws restrict the ability of employers to make deductions from employees’ wages.

The FLSA

When an employer makes impermissible deductions from an exempt employee’s pay, the employer risks losing the exemption from the FLSA’s overtime requirement. Generally, to be exempt, the employee must perform certain exempt duties and must be paid at least $455 per week on a salary basis. A salary is a predetermined, fixed amount of compensation that does not fluctuate because of changes in the amount of hours worked from week to week. The general rule is that employers must pay exempt employees the full salary amount for any week in which the employee performs any work regardless of the number of hours worked.

However, there are some exceptions that allow for an employer to make deductions:

If the employee is absent from work for one full day or more because of personal reasons other than sickness or disability;
For absences caused by sickness or disability if the deduction is made in accordance with a bona fide plan that provides compensation for the lost time;
As penalties for violating safety rules of major significance;
For unpaid, disciplinary suspension; and,
To offset amounts an employee receives as a jury or witness fee, or for military pay.
Employers are also permitted to make deductions from an employee’s paid time off as long as the employee receives his or her standard weekly salary. If the employee performs no work in a given workweek, then the FLSA does not require that the exempt employee be paid for that week. Similarly, an employer is not required to pay the full salary in the first and last weeks of employment or when the employee takes unpaid leave under the Family and Medical Leave Act.

The FLSA also contains a provision that allows employers to correct an impermissible deduction and thereby preserve the exempt status of the employee. To take advantage of this “window of correction,” the employer must have a policy that is clearly communicated to employees that prohibits improper deductions. The policy should be in writing and must provide a mechanism by which employees can file complaints. Once a violation is found, the employer must reimburse the employee and make a good faith commitment to comply in the future.

The WPCA

The WPCA limits an employer’s ability to make deductions from an employee’s wages after the wages have been earned, unless the employer and employee have completed a statutorily-required authorization. This includes situations where the employee owes the employer a debt, such as when the employee has charged a purchase to an employee account. Unlike the FLSA, the WPCA restrictions apply to both salary and hourly employees.

An authorization is not required if the deduction is for union or club dues, pension plans, payroll savings plans, credit unions, charities, hospitalization and medical insurance. In addition, deductions without an authorization are permitted when the deduction is for “an amount required by law to be withheld.” This exception is very narrow. Wages that must be garnished pursuant to a court order, such as child support obligations, would meet the exception.

If the deduction is for any reason other than those listed above, then the employer must use a wage assignment form. The West Virginia Division of Labor has posted a sample form on its website, and employers should use this form. The assignment cannot exceed one year. It must be signed by the employer, acknowledged by the employee, and notarized. It must also specify the total amount due and collectible by virtue of the assignment and state that three fourths of the employee’s periodical wages are exempt from the assignment.

ARTICLE BY

Joseph U. Leonoro

Steptoe & Johnson PLLC

New Jersey Employers: $8.38 Minimum Wage Effective January 1

As you may remember, in November 2013, voters approved an amendment to the New Jersey Constitution increasing the state minimum wage to $8.25. The amendment also created annual cost of living increases, tied to the Consumer Price Index, to be added to the minimum wage each year. The increases are calculated each September and take effect on the following January. Therefore, effective January 1, 2015, New Jersey minimum wage will rise from $8.25 to $8.38. Employers must ensure that all work performed by employees on and after January 1, 2015 is compensated at the increased rate. Employers should be especially mindful of this change if January 1 falls in the middle of a pay period.

ARTICLE BY

Saranne E. Weimer

Giordano, Halleran & Ciesla, P.C.

Employers’ Immigration Law Update – September 2014

ICE Levies $2M Fine against Hotel for I-9 Related Violations

A Salt Lake City-based hotel will have to pay nearly $2 million for hiring unauthorized workers, including illegal aliens. The hotel will avoid criminal prosecution in exchange for its full cooperation with a U.S. Immigration and Customs Enforcement investigation and for taking action to correct its hiring practices. According to the non-prosecution agreement, several lower-level employees and mid-level managers conspired to rehire unauthorized workers amidst an administrative audit of I-9 employee verification forms that began in September 2010. The hotel was notified that 133 employees were not authorized to work in the United States; however, the conspirators created three temporary employment agencies, essentially shell companies, to rehire 43 of the unauthorized, and most of the workers returned under different names using fraudulent identity documents.

$300K for H-2B Violations

According to a Department of Labor announcement, the agency has charged a landscaping company with violating federal law by failing to hire U.S. workers, and for underpaying temporary foreign workers. The company will pay $280,000 in back wages to 80 workers and nine job applicants and $20,000 in civil money penalties.

Immigration Reform Update

With comprehensive immigration reform legislation no longer a realistic possibility for the foreseeable future, advocates for reform have shifted their focus to executive actions the President may take unilaterally to implement changes in immigration policy.

The President reportedly is considering broad use of executive action, granting relief potentially to up to 6 million undocumented individuals, similar to what has been provided under the administration’s Deferred Action to Childhood Arrivals program (DACA).

Building off of DACA, the President has directed the Department of Homeland Security to review the administration’s immigration enforcement policies and recommend additional changes, possibly expanding the deferred action and work authorization to family members of U.S. citizens and lawful U.S. residents. The administration reportedly also is looking at possible changes to current law and regulation that could benefit employers.

Any unilateral action by the administration likely will be controversial.

Owner Liable for H-1B, J-1 Costs

The owner of several medical clinics is personally liable for back wages and the costs of physicians’ H-1B visas and J-1 waivers, the Court of Appeals for the Sixth Circuit has ruled. Kutty v. DOL, No. 11-6120 (6th Cir. Aug. 20, 2014). The Court held Dr. Mohan Kutty and his medical clinics violated H-1B provisions by having physicians cover the costs of their own H-1B visa petitions and related J-1 visa waivers.

Illinois Bans Employment Application Questions About Criminal Convictions

On July 21, 2014, Illinois Governor Pat Quinn signed into law the Job Opportunities for Qualified Applicants Act (HB 5701), which generally prohibits private-sector employers from inquiring about an applicant’s criminal history on a job application. When this law goes into effect on January 1, 2015, Illinois will join Hawaii, Massachusetts, Minnesota and Rhode Island as the fifth state to enact a “ban the box” law applicable to private-sector employers. A number of municipalities, including Philadelphia and San Francisco, have passed similar laws prohibiting the use of check-this-box questions on employment applications inquiring about an applicant’s criminal history.

The new Illinois law applies to private-sector employers with 15 or more employees and to employment agencies. The law prohibits covered employers from asking about an applicant’s criminal record or criminal history until after the employer has deemed the applicant qualified for the position and scheduled an interview. If hiring decisions are made without an interview, then the employer may not inquire about an applicant’s criminal record or history until it has made a conditional offer of employment to the applicant.

These restrictions do not apply to positions (a) for which federal or state law prohibits the employment of individuals who have been convicted of certain crimes or (b) for which individuals are licensed under the Emergency Medical Services Systems Act. In addition, a more limited exception applies to positions requiring a fidelity bond.

Employers with Illinois operations should plan to review the employment application forms they use and make necessary changes this fall in advance of the law’s effective date of January 1, 2015. For most covered employers, this will involve postponing until later in the hiring process the time at which questions are asked about prior criminal convictions.

Article By:

Brandon L. Dixon

Thomas G. Hancuch

Of:

Vedder Price

The Walls Shouldn’t Have Ears: Ruling on Eavesdropping Puts Burden of Prevention on Illinois Employers

Are your employees surreptitiously recording conversations? It’s a frightening thought. But based upon a new Illinois Supreme Court ruling, they are now free to do so. To discourage this behavior, Illinois employers should consider implementing a policy prohibiting such surreptitious recordings.

In People v. Clark, the Illinois Supreme Court ruled that the state eavesdropping statute, which had made it illegal to record conversations in Illinois without the consent of all parties, was unconstitutionally overbroad under the First Amendment. The state Supreme Court reasoned that audio and audiovisual recordings are “medias of expression commonly used for the preservation and dissemination of information and ideas and thus are included within the free speech and free press guarantee” of the First Amendment.

Consider for a moment how your employees might use secretly recorded conversations against you. An employee who has previously complained to your human resources department about another employee who made inappropriate sexist or racist comments, may now freely record all conversations with the colleague, and can use those recordings in a lawsuit against the company. Or, an employee might surreptitiously record everything said during an internal investigation of alleged wrongdoing by the company, and could then provide third parties with those recordings.

Given the removal of statutory barriers, Illinois employers are now forced to create their own systems for preventing this objectionable conduct. One such avenue would be to implement a policy prohibiting the recording of conversations absent the consent of all parties.

Under certain circumstances, employers may want to record workplace conversations. However, the employer, not each individual employee, should dictate when recording conversations is appropriate. Company policy should be unequivocal and forbid the recording of any conversations with colleagues or business conversations with third parties, regardless of where such conversations take place, without the consent of all parties to the conversation.

Note that such a policy would not prohibit an employee from using such surreptitious recordings in a lawsuit against the company, or from sharing such recordings with others, because Illinois law no longer requires the consent of all parties. But with clear guidelines in place, Illinois employers would at least have the option of taking disciplinary action against employees who violate the company’s policy. Employees generally don’t want to risk losing their jobs by violating such rules, and may therefore think twice before making secret recordings.

In response to the concerns of employers and others, the Illinois General Assembly is already considering new legislation that would limit the recording of conversations in a way that does not violate the Constitution. And while Illinois employers should monitor the progress of such prospective legislation, adoption of a company policy prohibiting the secret recording of conversations can help reduce the likelihood of such behavior in the interim.

Article By:

Robert K. Neiman

Of:

Much Shelist, P.C.

EEOC & FTC Issue Joint Background Check Guidance

The U.S. Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) issued joint informal guidance concerning the legal pitfalls employers may face when consulting background checks into a worker’s criminal record, financial history, medical history or use of social media. The FTC enforces the Fair Credit Reporting Act, the law that protects the privacy and accuracy of the information in credit reports. The EEOC enforces laws against employment discrimination.

The two short guides, Background Checks: What Employers Need to Know andBackground Checks: What Job Applicants and Employees Should Know, explain the rights and responsibilities of both employers and employees.

The agency press releases state that the FTC and the EEOC want employers to know that they need written permission from job applicants before getting background reports about them from a company in the business of compiling background information. Employers also should know that it’s illegal to discriminate based on a person’s race, national origin, sex, religion, disability, or age (40 or older) when requesting or using background information for employment.

Additionally, the agencies want job applicants to know that it’s not illegal for potential employers to ask someone about their background as long as the employer does not unlawfully discriminate. Job applicants also should know that if they’ve been turned down for a job or denied a promotion based on information in a background report, they have a right to review the report for accuracy.

According to EEOC Legal Counsel Peggy Mastroianni, “The No. 1 goal here is to ensure that people on both sides of the desk understand their rights and responsibilities.”

Article by:

Jason C. Gavejian

Of:

Jackson Lewis P.C.

Tag: employers

Paid Sick Leave Spreads Throughout New Jersey

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Ebola and Potential Labor Relations Issues

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