Hiring in New Jersey? Salary History Ban Sprouts in Garden State

Thomas J. Szymanski

Effective January 1, 2020, private employers in New Jersey are prohibited from asking job applicants about their salary, wage, and benefit history and are not permitted to make hiring decisions based on that information. Employers will also be prohibited from requiring that an applicant’s salary history satisfy certain minimum or maximum requirements.

There are notable exceptions to this prohibition, which include the following:

      1. If an applicant “voluntarily, without employer prompting or coercion,” discloses salary or wage information, the employer may verify whether the information was accurate and use the information to determine compensation to be paid to the applicant;
      2. An employee is applying for internal transfer or promotion with a current employer;
      3. Actions taken by an employer pursuant to a federal law or regulation that expressly requires the disclosure or verification of salary history for employment purposes; and
      4. After an offer of employment has been made that includes an explanation of the overall compensation package, an employer may confirm an applicant’s salary history upon the applicant’s written authorization.

Employers who violate the law can be fined up to $1,000 for a first offense, $5,000 for a second offense, and $10,000 for violations thereafter.

Please contact a member of Blank Rome’s Labor & Employment practice group if you have any questions about compliance with New Jersey’s salary and wage ban or any other employment issues.

New York Closes in on Comprehensive Employee Wage Lien Law

Mara B. Levin, Anthony A. Mingione, and Stephen E. Tisman

New York is on the precipice of passing a law that would allow employees to easily file liens against an employer’s property in connection with pending wage disputes. The bill also would permit employee access to certain sensitive employer records and expand the scope of personal liability for owners in disputes over wages. Employers should monitor these developments and work with counsel to prepare an action plan should this bill become law.

The New York State Legislature has recently passed a bill that could substantially alter the legal landscape of wage disputes if signed into law by Governor Cuomo. The proposed Employee Wage Lien bill would allow employees to obtain liens against an employer’s real property and personal property based on allegations involving nonpayment of wages. If signed into law, the bill will become effective within 30 days. Similar laws have been enacted on other states.

The law will allow employees to file a notice of a lien up to three years following the end of the employment giving rise to the wage claim. Employees will be able to place liens up to the total amount allegedly owed based on claims relating to overtime compensation, minimum wage, spread of hours pay, call-in pay, uniform maintenance, unlawful wage deductions, improper meal or tip credits or withheld gratuities, unpaid compensation due under an employment contract, or a claim that the employer violated an existing wage order. In addition, the State Attorney General and Department of Labor will be able to obtain a lien on behalf of an individual employee—or a class of employees—against an employer that is the subject of an investigation, court proceeding, or agency action.

Please click here for the full client alert. 

Protect Our Employees! End of Legislative Session Marked by Employee-Friendly Changes

Anthony A. Mingione and Gregory P. Cronin

As part of the New York State Legislature’s push to pass legislation at the end of its 2019 Session, three anti-discrimination bills have been passed and sent to the governor for consideration. If signed into law by Governor Cuomo (as expected), the bills will: (i) prohibit employers from inquiring into job applicants’ wage or salary history; (ii) expand the protections of existing equal pay laws; and (iii) ban discrimination based on hair or hairstyle. The salary history ban and equal pay law amendments will go into effect 180 days after enactment, and the hair/hairstyle law will go into effect immediately upon signature. Continue reading “Protect Our Employees! End of Legislative Session Marked by Employee-Friendly Changes”

Have Employers Taken Home the Iron Throne with Lamps Plus?

Caroline Powell Donelan and Taylor C. Morosco

On April 24, 2019, the U.S. Supreme Court issued its 5–4 opinion in Lamps Plus, Inc., et al. v. Varela holding that class arbitration is only allowed when the parties’ agreement explicitly allows for it. In other words, when an arbitration agreement is silent or even ambiguous as to whether class-wide proceedings are allowed, claims must be arbitrated on an individual basis.

Lamps Plus is the latest decision from our highest court bolstering the enforceability of individual arbitration in the workplace.

In this post, we’ll take a semi-deep dive into Lamps Plus and evaluate potential implications for your workplace as well as for future litigation strategies. Continue reading “Have Employers Taken Home the Iron Throne with Lamps Plus?”

Third Circuit Indicates Support for Use of Broader Restrictive Covenants in Post-Hire Agreements Rather Than a Uniform Approach at Hiring

Kevin M. Passerini

We wrote an earlier post about the Third Circuit’s opinion in ADP, LLC v. Rafferty, et al., confirming courts’ blue penciling authority (see here); but the Third Circuit’s analysis of ADP’s two-tiered restrictive covenant structure is also worth discussing, as it may have employers doing some head scratching.

Why the focus on ADP’s two-tiered contracting approach?

ADP’s first-tier agreements for new hires included confidentiality obligations and a one-year customer non-solicit tailored to the employee’s assigned role and contacts, but no non-compete. ADP’s second-tier agreements (used in connection with stock incentives offered to high-performing employees) added a one-year territory-based non-compete and broadened the scope of the one-year non-solicit to include all customers and business partners for which ADP has provided services and all prospects for which ADP reasonably expects to provide services during the two-year period following the employee’s termination—regardless of the employee’s responsibility for them or access to confidential information about them during employment. Continue reading “Third Circuit Indicates Support for Use of Broader Restrictive Covenants in Post-Hire Agreements Rather Than a Uniform Approach at Hiring”

Attention NY Employers—Tippecanoe and Time Off Too!

Anthony A. Mingione

New York State has this week enacted sweeping election reforms that go into effect immediately. The changes will impact private employers across the state. Section 3-110 of the New York Election Law now permits all registered voters to request and obtain up to three hours of paid time off, regardless of their schedule, to vote in any public election. Employers will be permitted to designate whether the time off will be taken at the beginning or end of an employee’s shift.

To qualify, employees must be registered to vote and must provide at least two days’ advance notice to their employer of the need for time off to vote. The law is silent on whether the employer can count voting time against other paid time off programs it provides. We anticipate that regulations will be issued relating to this and other elements of the law and we will report on them as they are published.

Employers also must comply with a voting rights posting requirement. Employers are required to post a notice that explains the employees’ right to paid time off for voting. You can see a version of the approved poster on the New York State Board of Elections website here.

The notice must be posted in a conspicuous location in the workplace where it can be seen as employees come or go to their place of work, at least 10 days before a public election, and must remain up until the polls close on election day.

Employers should take note that these rules apply to all public elections; the next such statewide election will be the New York primaries on June 25, 2019.

Third Circuit Confirms Courts’ Authority to Salvage Over Broad Restrictive Covenants

Kevin M. Passerini

On April 26, 2019, the U.S. Court of Appeals for the Third Circuit weighed in on a pair of district court rulings which had denied ADP, LLC’s requests for preliminary injunctive relief against two former employees who ADP alleged had violated post-employment restrictive covenants. In ADP, LLC v. Rafferty, et al., the Court unanimously reversed the rulings and remanded to the district courts with instructions to “blue pencil the agreements and reconsider the four-factor preliminary injunction standard” as it relates to the former employees’ non-competition and customer non-solicitation obligations. The Third Circuit’s opinion restates what has long been the law in New Jersey and clarifies for anyone still in doubt that “New Jersey has evolved from invalidating overbroad restrictive covenants outright to presumptively ‘compress[ing] or reduc[ing]’ their scope ‘so as to render the covenant reasonable’” (alterations in original; citations omitted).

What is “blue penciling”? Continue reading “Third Circuit Confirms Courts’ Authority to Salvage Over Broad Restrictive Covenants”