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”
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!”
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”
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”
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”
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!”
Yelena Barychev and Brooke T. Iley
On February 21, 2018, the U.S. Supreme Court issued a much anticipated decision in Digital Realty Trust, Inc. v. Paul Somers that the anti-retaliation protections of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act”) do not extend to an individual who reports alleged company misconduct only internally without submitting this information to the Securities and Exchange Commission (the “SEC”).
Paul Somers worked at Digital Realty Trust, Inc. as a vice president of portfolio management. While employed, he reported possible securities law violations to senior management but never reported this information to the SEC. Mr. Somers’ employment was subsequently terminated. He then sued Digital Realty in federal court accusing the company of violating the Dodd-Frank Act by firing him for complaining internally about alleged violations of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”). Mr. Sommers never sought relief directly under the Sarbanes-Oxley Act. The district court, and then the Court of Appeals for the Ninth Circuit, supported Mr. Somers reliance on the SEC’s broad interpretation of the definition of the term “whistleblower” under the Dodd-Frank Act. The U.S. Supreme Court reversed the judgment of the Court of Appeals for the Ninth Circuit and remanded the case for further proceedings consistent with its opinion. Continue reading “Blowing the Whistle Internally Is Not Enough to Be Covered by the Anti-Retaliation Provisions of the Dodd-Frank Act”