Author: Blank Rome LLP

New Maryland #MeToo Bill Sets Up Public Shaming and Restrictions

Asima J. Ahmad

Maryland’s legislature recently passed Senate Bill 1010 in an effort to provide victims of sexual harassment additional workplace protections. The Bill awaits the governor’s signature.

Set to be effective October 1, 2018, and titled “Disclosing Sexual Harassment in the Workplace Act of 2018” (the “Act”), the Act voids any provision in an employment contract, policy, or agreement that waives substantive or procedural rights or remedies relating to a sexual harassment claim that accrues in the future, or to a retaliation claim for reporting or asserting a right or remedy based on sexual harassment (unless prohibited by federal law). Any employer who enforces, or attempts to enforce, such a provision will be liable for the employee’s attorney’s fees and costs. The Act will apply to any employment contract, policy, or agreement executed, “implicitly or explicitly extended,” or renewed on or after the effective date; so, it seems to cover policies and agreements implemented prior to October 1, 2018 that continue in place after that date. Continue reading “New Maryland #MeToo Bill Sets Up Public Shaming and Restrictions”

New York Says “#MeToo” as It Enacts Strict Anti-Harassment Measures

Anna Svensson

On April 12, New York Governor Andrew Cuomo signed into law a budget bill that includes significant changes in the obligations of New York employers related to sexual harassment (the “Anti-Harassment Law”). According to the Governor, the Anti-Harassment Law provides the “strongest and most comprehensive anti-sexual harassment protections in the nation,” as part of a hefty $168 billion budget deal for the 2019 fiscal year (which started April 1, 2018). The Anti-Harassment Law is consistent with a recent push by states and localities to expand employee protections against unlawful harassment in response to the #MeToo movement.

The Anti-Harassment Law includes both immediate and ongoing implications. Here are some of the highlights: Continue reading “New York Says “#MeToo” as It Enacts Strict Anti-Harassment Measures”

New Jersey Jumps on the Paid Sick Leave Bandwagon

Asima J. Ahmad

Attention New Jersey employers: It looks like the Garden State is next in line to require employers to provide paid sick leave to employees. The New Jersey Paid Sick Leave Act has now been passed by both the state assembly and senate, and Governor Phil Murphy is expected to sign the bill into law.

Similar to the paid sick leave laws in other states, New Jersey will mandate that employees accrue one hour of paid sick leave for every 30 hours worked, up to a maximum of 40 hours. In the alternative, employers can frontload 40 hours of paid sick time on the first day of each benefit year. This can be done through an existing paid time off (“PTO”) policy, so long as the PTO days can be used for any of the reasons permitted under the Act, and are accrued at an equal or greater rate than what the Act requires. The Act states that employers are not required to permit employees to carry over more than 40 hours of paid sick leave from one benefit year to the next, but it appears that carryover is otherwise required. Additionally, employers are not obligated to pay employees for any accrued but unused time upon their separation from the company. Continue reading “New Jersey Jumps on the Paid Sick Leave Bandwagon”

Blank Rome Alert—Gig Economy More Employer-Friendly? Ask Uber!

Jason E. Reisman

Spoiler alert! Yesterday, the U.S. District Court for the Eastern District of Pennsylvania handed Uber what the Court described as Uber’s first win on its independent contractor classification for one class of its drivers: “This case is the first to grant summary judgment on the question of whether drivers for UberBLACK are employees or independent contractors within the meaning of the Fair Labor Standards Act ….” The case is Razak et al. v. Uber Technologies, Inc. et al. (Civil Action No. 16-573; 4/11/18).

Wow. Pretty significant progress for the gig economy’s foundational feature—the engagement of workers classified as “independent contractors.” I dare say that, with this decision, the gig economy may have just gotten a little more employer-friendly—at least here in Eastern Pennsylvania and at least as to Uber. Continue reading “Blank Rome Alert—Gig Economy More Employer-Friendly? Ask Uber!”

Employers Should Take Notice of New Jersey’s Expected Equal Pay Law

Thomas J. Szymanski

The Diane B. Allen Equal Pay Act (“Act”), directed at remedying discriminatory pay practices in the workplace, was passed by both houses of New Jersey’s Legislature and awaits the signature of Governor Phil Murphy. This is not the first time that the New Jersey Legislature has passed a bill modeled after the federal Lilly Ledbetter Fair Pay Act of 2009, which made it easier to pursue pay-discrimination lawsuits—former Governor Chris Christie previously vetoed nearly identical versions of this bill, based on his stated belief that they were overly-expansive and bad for business. Governor Murphy has pledged to sign the current version of the Act into law, with an anticipated effective date of July 1, 2018. Some of the Act’s provisions, notably those providing for treble damages and a six-year look back period, could provide more employees with much greater relief for violations than the federal Ledbetter Act or other state equal pay laws. Continue reading “Employers Should Take Notice of New Jersey’s Expected Equal Pay Law”

New Department of Labor Disability Claim Procedure: A Trap for the Unwary

Daniel L. Morgan

On April 1, 2018, a new Department of Labor regulation that modifies the procedures ERISA-governed plans must use to evaluate disability claims took effect.

According to a Department of Labor news release, the modified procedures:

“give America’s workers new procedural protections when dealing with plan fiduciaries and insurance providers who deny their claims for disability benefits … and ensures, for example, that disability claimants receive a clear explanation of why their claim was denied as well as their rights to appeal a denial of a benefit claim, and to review and respond to new information developed by the plan during the course of an appeal. The rule also requires that a claims adjudicator could not be hired, promoted, terminated, or compensated based on the likelihood of denying claims.” Continue reading “New Department of Labor Disability Claim Procedure: A Trap for the Unwary”

DOL Gets “Cute” with New Compliance Guidance … Animated Videos

Jason E. Reisman

The U.S. Department of Labor (“DOL”) has been trumpeting its “new” focus—with the incoming Trump administration—on “educating” employers to improve compliance. The latest effort by the DOL involves newly created, short animated videos—you can watch all five of them here.

The DOL announced these videos with this selling point: “Tired of poring through regulations and dense text trying to determine your legal responsibilities under federal labor law as an employer? We have a solution.” Well, we’re not sure that’s exactly accurate since they do not provide a comprehensive explanation of the legal responsibilities of covered employers. Continue reading “DOL Gets “Cute” with New Compliance Guidance … Animated Videos”

New York #MeToo Initiatives—It’s No Longer Just an HR Issue

Stephen E. Tisman and Rither Alabre

Propelled by the Harvey Weinstein scandal and the “#MeToo” movement, New York government officials have taken new steps to protect victims of sexual misconduct in the workplace.

  • The New York County District Attorney’s Office has created a special “Work-Related Sexual Violence Team” of prosecutors to investigate reports of work-related sexual violence.
  • The New York Attorney General filed suit, in response to the announcement of the proposed sale of the Weinstein Company, for civil penalties and an order of “restitution” to victims.

These actions make clear that new layers of scrutiny are being imposed to examine how employers handle sexual harassment claims. Importantly, companies and individuals faced with such claims will confront new areas of exposure—outside of traditional human resources procedures and concerns—which must be analyzed and addressed. Continue reading “New York #MeToo Initiatives—It’s No Longer Just an HR Issue”

DOL Bends Slightly More toward Employers—Self-Audits (Via Pilot Program) Are Back!

Jason E. Reisman

No one questions the incredibly complex and nuanced web of wage and hour regulations that the U.S. Department of Labor (“DOL”) has laid down over the last 80 or so years as guidance under the Fair Labor Standards Act (“FLSA”). Of course, in one sense, the regulations represent a grand effort to try to address just about every possible scenario implicating minimum wage and overtime pay concerns. On the other hand, the sheer volume of the regulations and embedded intricacies often leave employers scratching their heads. Well, compliance help may be on the way! In another (expected) move under Republican administration stewardship, which typically focuses on compliance assistance rather than “gotcha” enforcement, there will soon be an option for any employer that realizes it has been mistakenly out of compliance to self-report and obtain a final resolution.

The DOL’s Wage and Hour Division (“WHD”) has just announced that it will implement a new nationwide pilot program, the Payroll Audit Independent Determination (“PAID”) program, which it says is designed to “facilitate[] resolution of potential overtime and minimum wage violations under the [FLSA].” Continue reading “DOL Bends Slightly More toward Employers—Self-Audits (Via Pilot Program) Are Back!”