Category: HR compliance and policy design

Garden State Says #MeToo: Bill Barring Non-Disclosure Clauses Passes in Both Chambers

Asima J. Ahmad

New Jersey appears to be the next state to ban non-disclosure clauses in employment contracts or settlement agreements. On January 31, 2019, Senate Bill 121 passed the New Jersey Assembly by a 68-4-4 vote and the Senate in a 36-0 vote, sending the bill to Governor Phil Murphy’s desk.

Not Just About Non-Disclosure. The bill was introduced early last year in response to the #MeToo movement and deems unenforceable and against public policy any employment contract provision that either waives substantive or procedural rights or remedies relating to claims of discrimination, retaliation, or harassment, or has “the purpose or effect of concealing the details” of such any such claim. In effect, the bill prohibits forced arbitration of discrimination, retaliation, or harassment claims—of course, that includes sexual harassment claims. Similarly, the bill prohibits confidentiality or non-disclosure provisions from being included in employment contracts or settlement agreements involving those same types of claims. The bill does not prohibit employers from including noncompetition provisions in employment agreements, or from prohibiting the disclosure of proprietary information, which includes non-public trade secrets, business plan, and customer information. Continue reading “Garden State Says #MeToo: Bill Barring Non-Disclosure Clauses Passes in Both Chambers”

Get Ready New Jersey Employers, $15 Minimum Wage Is Coming!

Thomas J. Szymanski

As we cautioned on November 15, 2018, Governor Phil Murphy’s top legislative priority to increase the minimum wage to $15 per hour is inching closer to a reality. On Monday, January 28, 2019, the New Jersey Assembly and Senate committees approved a bill raising the minimum wage as follows:

  • $15 per hour by 2024, for most minimum wage earners;
  • $15 per hour by 2026, for minimum wage earners at seasonal businesses and small businesses;
  • $12.50 per hour by 2024, for agricultural minimum wage earners; and
  • $5.13 per hour by 2022, for tipped earners.

The bill is scheduled for full votes in both chambers on Thursday, January 31, 2019. If passed, Governor Murphy is expected to sign the wage increases into law on the same day.

Below is a brief summary of the proposed schedules of minimum wage increases for each of the groups affected. Continue reading “Get Ready New Jersey Employers, $15 Minimum Wage Is Coming!”

Hold onto Your Hats! DOL Sends “Regular Rate” Rule for Review

Jason E. Reisman

On January 23, 2019, the Department of Labor (“DOL”) passed along another potential bombshell rule (see our prior post here on the white collar exemption salary threshold rule that’s also currently under review) to the White House Office of Information and Regulatory Affairs (“OIRA”)—this time, it’s a proposed rule to update and clarify the definition of “regular rate” under the Fair Labor Standards Act (“FLSA”). Here’s what the DOL said in its fall 2018 agenda:

The Department believes that changes in the 21st century workplace are not reflected in its current regulatory framework. … The Department is interested in ensuring that its regulations provide appropriate guidance to employers offering these more modern forms of compensation and benefits regarding their inclusion in, or exclusion from, the regular rate. Clarifying this issue will ensure that employers have the flexibility to provide such compensation and benefits to their employees, thereby providing employers more flexibility in the compensation and benefits packages they offer to employees. Similarly, the Department believes that the proposed changes will facilitate compliance with the FLSA and lessen litigation regarding the regular rate.

Once OIRA reviews the rule, it can be released to the public for comment.

Sounds fantastic, doesn’t it? Can’t wait to see what new and wonderful clarity the DOL has to offer—remember, the general rule is that the “regular rate” (which is used for the calculation of overtime pay for non-exempt employees) must include all forms of remuneration for employment, other than certain specified exceptions. We should expect some employer-favorable clarifications to those “exceptions,” which could relate to the ever-elusive concept of “discretionary bonuses,” and other compensation perks.

Get excited—the Trump DOL is working for you (employers of the world, that is)!

It’s Back!! New DOL Salary Threshold Rule Is on the Doorstep!

Jason E. Reisman

Just when you thought it was safe to go back in the water, the U.S. Department of Labor (“DOL”) reappears to address an issue that has most American employers on edge: How far will it expand the scope of who is eligible for overtime pay? After taking what seems like forever, the Trump DOL—despite the government shutdown—has apparently now completed its long-awaited revised new rule to reset the minimum salary threshold for employees subject to the Fair Labor Standards Act’s white collar exemptions.

We all remember the Obama DOL’s effort to expand overtime eligibility to four million currently-exempt employees by increasing the salary minimum by more than double, to $47,476 (which was blocked by a federal judge in Texas). The real question for now is, what has the Trump DOL decided is the “correct” new salary level? All signs point to a figure in the low to mid-$30,000s. We should find out very soon.

For now, sources are reporting that the finalized proposed new rule is about to be submitted (maybe today) to the White House’s Office of Information and Regulatory Affairs (“OIRA”) for review. This is the first step in the process before the proposed rule is released to the public for comment. Though the federal government is currently shut down, the White House is working. The last agenda issued by the DOL stated that this new rule would be released in March, so they seem to be on track for that.

So … stay tuned— “Same Bat time, same Bat channel!” More to come.

Philadelphia City Council Passes “Fair Workweek” Bill and Votes to Increase Minimum Wage for City Workers and Contractors

Andrew A. Napier

On December 6, the Philadelphia City Council passed two pieces of legislation that already are being touted as altering the landscape for workers in the city, especially those in the service industry.

“Fair Workweek” Bill

The “Fair Workweek” Bill, introduced by Councilwoman Helen Gym in June, applies to large chain businesses with more than 250 employees in the retail, food, or hospitality sectors, and at least 30 locations across the country or state (“Covered Employers”). If signed it would go into effect on January 1, 2020, and will require Covered Employers to give employees (including full-time, part-time, and seasonal and temporary workers) who work within the geographical boundaries of the City, 10 days’ advance notice of their work schedule. The amount of advance notice will increase to 14 days beginning January 1, 2021. An employee may decline, without penalty, any shift that occurs less than nine hours after the end of a shift, and if the employee agrees to work the shift, the employer must pay the employee an extra $40 per shift. Continue reading “Philadelphia City Council Passes “Fair Workweek” Bill and Votes to Increase Minimum Wage for City Workers and Contractors”

ALERT: New Jersey Raising Minimum Wage!

Thomas J. Szymanski

New Jersey’s minimum wage will increase by 25 cents, from $8.60 to $8.85 per hour, effective January 1, 2019. For non-exempt employees making the minimum wage, employers will be required to pay an overtime rate of $13.28 for every hour worked over 40 in a work week, to comply with the State’s minimum wage requirements.

Employers should be aware that one of Governor Phil Murphy’s top legislative priorities is to increase the minimum wage to $15 per hour. Although the Legislature passed a $15-an-hour minimum wage bill in 2016, which was vetoed by then-Governor Chris Christie, neither Governor Murphy nor the Legislature has communicated a path forward to get another bill on the table.

As wage payment violations carry significant penalties in New Jersey, you should contact a member of Blank Rome’s labor & employment practice group if you have any questions about compliance with New Jersey’s minimum wage increase or any other wage and hour issues.

Requesting a Background Check to Make an Employment Decision? Read This First.

Thomas J. Szymanski

The Fair Credit Reporting Act (“FCRA”) provides federally-imposed limitations on all employers who seek information from a Consumer Reporting Agency about an applicant or employee for use in making an employment decision, such as a hiring or promotion. The FCRA contains specific notice, authorization, and reporting requirements related to obtaining a Consumer Report, including credit reports and criminal background checks, and potentially taking an adverse employment action based on that information.

Requirements before you request a Consumer Report: Continue reading “Requesting a Background Check to Make an Employment Decision? Read This First.”

Workplace Safety Incentive Programs and Post-Incident Drug Testing—Still Okay under OSHA but Don’t Discourage Accident Reporting

Mark Blondman

Many employers have implemented workplace safety incentive programs in an effort to reduce time lost to injuries or illness. The programs generally reward workers for reporting near-misses or hazards and/or reward employees with a prize or bonus at the end of an injury-free period. The programs also may evaluate managers based on their work unit’s lack of injuries. Similarly, employers have implemented drug testing protocols with the same goals.

In May 2016, concerned that employers were not using incentive programs and drug testing policies to encourage safe practices but, instead, to punish employees who reported workplace safety issues, the Occupational Safety and Health Administration (“OSHA”) published a final rule prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. The final rule also suggested that it might constitute retaliation for an employer to limit post-incident and post-accident drug testing to the employee who reported an injury as a result of a workplace incident/accident and not to test all of the employees involved in the incident. Continue reading “Workplace Safety Incentive Programs and Post-Incident Drug Testing—Still Okay under OSHA but Don’t Discourage Accident Reporting”

Update on New Jersey Paid Sick Leave Act

Mark Blondman

In an earlier post, we provided a preview of the New Jersey Paid Sick Leave Act. The Act goes into effect on October 29, 2018. Last week, the Department of Labor and Workplace Development, the state agency responsible for interpreting the Act, published a “Notice of Employee Rights” under the Act and a copy of that Notice/Poster is available here. The Notice must be posted by employers in conspicuous locations in every worksite in New Jersey and must be distributed to all New Jersey employees by November 29 and at the time of hiring for all new employees hired after October 29.

The Act imposes significant obligations on employers in New Jersey. You can contact a member of Blank Rome’s labor & employment practice group if you have any questions about what needs to be in your policies.

NY Harassment Training Deadline Extended!

Mark Blondman

As we have advised you in previous blog posts, New York State has passed legislation mandating that employers adopt an anti-harassment policy and conduct harassment training for all employees. The law requires that, by October 9, 2018, employers distribute to employees in New York State a written policy that meets certain prescribed legal standards.

Earlier this week, New York State issued a final set of employer guidance materials on sexual harassment prevention, including model training materials and Minimum Standards for Sexual Harassment Prevention Policies, a Model Sexual Harassment Prevention Policy, and a Model Complaint Form. Employers are permitted to implement the Model Policy or may develop policies on their own as long as they meet minimum legal requirements.

Most importantly, although the New York law had originally required that employers conduct harassment training for all employees by January 1, 2019, the guidance issued this week extends the deadline to October 9, 2019. Please use this additional time effectively!