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Q1: A private employer in NY fires an employee after seeing videos on Facebook of the employee branding a tiki torch and wearing a KKK t-shirt at the Charlottesville, VA rally. The employee argues that his First Amendment rights were violated by the firing. Is he correct?
A1: The First Amendment of the U.S. Constitution protects free speech and "the right of the people peaceably to assemble." Read On.
Q2: The employee did not have an employment contract and was employed “at-will”. Was he wrongfully terminated?
A2: Employment “at-will” means that an employer can
terminate an employee for any (or no) reason, at any time. Read On.
Q3: What if the employee is a lawyer and the employer is a NY law firm that regularly represents victims of discrimination. Is the termination wrongful?
Q4: Assume the same facts in Q1 and Q2 but the employee is fired by his NJ employer. Was the employee wrongfully terminated under NJ law?Employment Practices (May 2017)
On May 4, 2017, Mayor de Blasio signed a bill into law aimed at eliminating the wage gap between men and women. When the law goes into effect on October 31, 2017, it will be an “unlawful discriminatory practice” for NYC private employers to ask for salary history information from an applicant, an applicant's current or former employer, or from an employee or agent of that employer. Employers will also be prohibited from conducting any form of search through publicly available information for a prospective employee’s salary history. The employer may not consider an applicant’s salary history in determining the salary, benefits, or other forms of compensation for that applicant. “Salary history” includes not only an applicant’s current or prior wage, but also benefits and any other form of compensation he or she may have received.
A:In 2016, the NJ Senate and Assembly passed a bill . . . Keep reading.
NYC private employers should update their job applications, review and revise their background check forms and phone screen and interview materials and train staff for compliance. Questions regarding salary history must be eliminated. Anyone involved in the recruiting and hiring process should be trained as to the law’s requirements, including ways to avoid claims that salary history was disclosed involuntarily or at the prompting of the interviewer. A process for documenting when an applicant voluntarily discloses salary history and other compensation information should be implemented. Employers in NJ and areas outside of NYC may also want to take similar steps over the coming months as this is a trend that is likely to come their way.
Q: Which municipality is the 13th in NJ to require its private employers to provide paid sick leave to employees? And, (in case you haven’t been reading my prior newsletters) which 12 municipalities already have such laws?
A: I previously reported a growing NJ trend – municipalities that are requiring their private employers to provide paid sick leave to employees. In just a few years, the number of municipalities has grown to 12. Number 13’s law becomes effective on January 11, 2017. Employers in that municipality or that have employees that work there must quickly modify their policies to ensure compliance. Click here to read about number 13. Click here to read my earlier post which lists the paid sick leave laws of the current 12 municipalities – just in case you missed it.
ALERT ! Effective Date Delayed --- Click Here for More Info
The new overtime rules issued by the U.S. Department of Labor raise the salary level for several overtime exemptions under the Fair Labor Standards Act. The FLSA currently requires covered employers to pay minimum wage ($7.25) and overtime (time and a half on more than 40 hours worked in a workweek) to employees, unless they are exempt. The exemptions are limited. For Executive, Administrative and Professional workers to be exempt, they must be paid a salary of $23,660 annually or $455/week. The new rules change the salary level to Read On
UPDATE – PAID SICK LEAVE IN TWELVE NEW JERSEY MUNICIPALITIES
Employers in the following NJ municipalities should review their current sick leave policies to determine compliance with local ordinances, including notice and posting requirements: Click here for a list of the NJ municipalities that require paid sick leave and links to the ordinances and required notices. All other NJ employers should watch this growing trend - is your municipality considering mandating paid sick leave?ALERT NEW YORKERS - NEW NY STATE PAID FAMILY LEAVE LAW
On April 4, 2016, Governor Andrew M. Cuomo signed legislation enacting a statewide 12-week paid family leave policy. Under the new Paid Family Leave law, NY private sector employers will be required to provide paid family leave to employees that need to care for an infant or a family member with a serious health condition or to relieve family pressures when someone is called to active military service. Benefits will be phased-in beginning in 2018 and fully implemented in 2021. Paid leave benefits are to be funded through employee payroll deductions.
Q: How many weeks of paid leave are we talking about?
A: Starting in 2018, up to 8 weeks of leave at 50 percent of the eligible employee’s average weekly wage, to a maximum of 50 percent of the state’s average weekly wage. In 2019, this increases to . . . Read More
Q: Does the NY Paid Family Leave law have an exception for small businesses? Does it apply to all employers or only those with 50 or more employees as under the federal Family Medical Leave Act (FMLA)?
A: The law applies to private sector employers . . . Read More
Q: To be eligible for paid family leave, must the employee work full-time or does the law also apply to part-timers?
A: The NY Paid Family Leave law applies to full-timers AND part-timers, BUT . . . Read More
Q: Under the new law, if an employee is on leave, must the employer hold open his/her job? Must the employer continue to provide health coverage to the employee on leave?
A: The NY Paid Family Leave law requires employers to . . . Read More
On April 4,
2016, NY Governor Andrew M. Cuomo signed legislation enacting a statewide $15 minimum wage plan.
Q: A NY employer fires her female employee because the employer believes that women should defer to men, but the employee sometimes challenges her male colleagues. Does the employee have a cognizable claim for discrimination under Title VII?
Q: The same NY employer fires her female employee because the employer believes that women should date men, but the employee only dates women. Does the employee have a cognizable claim for discrimination under Title VII?
Q: Plaintiff, a gay employee, sues his employer under Title VII for discrimination citing numerous examples of his supervisor’s anti-gay behavior including (i) a movie poster, circulated to the office and posted on Facebook by the supervisor, depicting Plaintiff’s head superimposed on the body of a bikini-clad woman reclining on her back with her legs in the air which the supervisor describes as “the gay sexual receiving position”; (ii) drawings put on a company whiteboard by the supervisor, one of which showed Plaintiff’s torso on the body of a four-legged animal with a tail and penis, urinating and defecating, and a second drawing which depicted the Plaintiff naked, with an erection and exaggerated muscles, and an air pump being manned by another employee and attached to Plaintiff’s wrist, with text next to Plaintiff reading “I’m so pumped for marriage equality,” while text by the other employee says, “I f*#ing hate being pumped”; (iii) a comment made to a co-worker in which the supervisor stated that “if he were gay, he’d like to have gay intercourse with [the co-worker]”; (iv) the supervisor asked another employee during an office trivia game how it felt to “be beaten out by the gay guy”; and (v) during a large office meeting, when the supervisor was feeling ill, he turned to the Plaintiff and said “It feels like I have AIDS, you know what that’s like?” Does the Plaintiff have a cognizable claim for discrimination under Title VII?
NJ ALERT- Earlier this month, the New Jersey Supreme Court in Hargrove v. Sleepy’s, LLC, decided that the “ABC” test set forth in the New Jersey Unemployment Compensation Act, will be used to determine whether a plaintiff is an employee or independent contractor as to claims under New Jersey's Wage and Hour Law and Wage Payment Law. The ABC test presumes that an individual is an employee. The burden is on the employer to show that: (1) the employer neither exercised control over the worker, nor had the ability to exercise control in terms of the completion of the work; (2) the services provided were either outside the usual course of business or performed outside of all the places of business of the enterprise; and (3) the individual has a profession that will plainly persist despite termination of the challenged relationship. Failure to satisfy any one of these criteria results in an “employment” classification, requiring the employer to pay non-exempt employees at least minimum wage and overtime at time and a half. Click here for a Q&A on the ABC test.
Note - New Jersey’s Wage Payment Law governs the timing and mode for the payment of an employee’s wages. New Jersey’s Wage and Hour Law provides for minimum wage and overtime benefits paid to employees. Independent contractors are not protected by these laws. For more information on these laws, click here.
NY ALERT- As of
December 31, 2014, New York State's minimum wage is $8.75 per hour, with few
exceptions. Employers must post the NY Minimum Wage Information poster in their
place of work.
NJ ALERT - PAID SICK LEAVE IN FIVE NEW JERSEY CITIES - Paterson, Passaic and East Orange recently passed ordinances mandating private companies to provide paid sick leave. Newark and Jersey City previously passed similar laws. Employers in these cities should review their current sick leave policies to determine compliance, including notice and posting requirements. Click here for links to these ordinances.
NY ALERT - PAID SICK LEAVE IN NEW YORK CITY?
In June 2013, the NYC council passed the Earned Sick Time Act. At that time, I reported the basic nuts and bolts of that law. After Mayor DeBlasio's inauguration last January, the City council amended the Act making it even broader. The Act, as amended, went into effect April 2014. Click here for the highlights of the amended Act.Employment Practices (August 2014) by Audra L. Schwartz
Q: An applicant signs an employment application which provides, in large capitalized type placed right above the signature line, that by signing the application he is agreeing that any claims against the employer must be brought within 6 months of the action which is the subject of the claim and agreeing to waive any statute of limitations to the contrary. The applicant is hired. Three years later, he is promoted to a different position after signing a new application that does not contain this language. He is later terminated as part of a company-wide layoff. Is the employee’s suit for discrimination, brought 9 months after termination, time-barred?
ALERT UPDATE – As I reported in April 2013, New Jersey adopted the Revised Uniform Limited Liability Company Act effective March 2013, revising the charging order provision by allowing for the appointment of a receiver and, if a creditor could show that distributions under a charging order would not satisfy its judgment debt within a reasonable time, foreclosure of the member’s transferrable interest in the LLC. N.J.S.A. 42:2C-43 (2012). Earlier this year, Governor Christie passed into law an amendment to the LLC Act that eliminates receivership and foreclosure as a remedy and returns the provision largely to its 2012 state. Under the current law, a court order charging the transferable interest of a member is the sole remedy of the judgment creditor. The law further clarifies that the judgment creditor has no right to interfere with management, force dissolution or foreclosure of the transferable interest. In light of this Amendment, I am re-posting my original Q & A, updated for this revision.Q: You obtain a large judgment against an individual and you want to collect. The judgment debtor has only one asset - he is a member of a NJ limited liability company (ie. he is an owner of the LLC). Can you force the sale of his ownership interest?
Q: An employer terminates an employee after deciding the employee’s position must be eliminated to save on costs. The employee previously signed a non-competition agreement. Assuming the agreement is otherwise enforceable, can the employer enforce it against the employee even though that employee was terminated without cause and is collecting unemployment?ALERT - As of May 7, 2013, employers must use the new Eligibility Verification Form I-9 for all new hires, as well as for re-verifying current employees with expiring employment authorization documents. Failure to use the new form after May 7th may result in large fines. Please contact us if you need the new Form I-9 or a copy of the Handbook for Employers published by the U.S. Citizenship and Immigration Services.
ALERT – The NJ Revised Uniform Limited Liability Company Act went into effect as of March 18, 2013. It applies to LLC’s formed on or after March 18, 2012 and LLC’s formed prior to March 18, 2013 which elect to be subject to the revised Act. It applies to all other New Jersey LLC’s beginning on April 1, 2014.Click Here for More Information on the Revised Act.