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Employment Practices (November 1, 2023)

As of today, all U.S. employers must properly complete the Form I-9 for every individual they hire for employment in the United States. This includes citizens and noncitizens. Both employees and employers (or authorized representatives of the employer) must complete the form.

Click here for the new version of the I-9. (Spanish version
Click here for Form I-9 instructions. (Spanish version)

Do not file Form I-9 with US Citizenship and Immigration Services (USCIS) or US Immigration and Customs Enforcement (ICE). Employers must:

Employment Practices (September 13, 2023)

NY State’s pay transparency law, effective September 17, 2023, requires certain employers to disclose the compensation or range of compensation in advertisements for jobs, promotions, or transfer opportunities. A job description for the position must also be disclosed - if one exists. While there are gray areas in the law, it is clear this law reaches beyond NY State borders. The following Q&As will give you some insight on the law and shed light on the status of similar laws in NYC and New Jersey. Covered employers must comply with all applicable state and local laws. If they haven’t already, employers should take steps to get their houses in order. What does that mean? There’s a Q&A for that as well.

The basics:

The NY State pay transparency law applies to employers with four or more employees. This includes employers acting as employment agents or recruiters, or otherwise connecting applicants with employers, but excludes temporary help firms. Unlike the New York City law, independent contractors are not included in the employee count. Click here for more information on the NYC law.

The “range of compensation” that must be disclosed is the minimum and maximum annual salary or hourly rate that the employer in good faith believes is accurate at the time of the job posting. If the position is paid entirely on commission, a general statement that compensation shall be based on commission must be included in the advertisement. If compensation includes both commission and wages, the advertisement must include a general statement about the commission and the offered compensation or range of compensation for the wages.

The law applies to advertisements for opportunities “that will physically be performed, at least in part, in the state of New York, including a job, promotion, or transfer opportunity that will physically be performed outside of New York but reports to a supervisor, office, or other worksite in New York.”

Q: A NY employer (4+ employees) wants to advertise a fully remote position that will report to a supervisor in its NJ office. Must the employer comply with the NY State pay transparency law?

A: The original version of the NY State pay transparency law seemed to apply to NY based positions and fully remote positions because READ MORE

Q: Employer (4+ employees) wants to advertise a position for a job that will be performed exclusively at its NJ office. The employee will report to a manager that works at the employer’s NY office. Must the employer comply with the NY State pay transparency law?

A: Since the NJ based employee READ MORE

Q: Can a violating employer be sued by an aggrieved applicant or employee?

A: Any person harmed by a violation of the law can file a complaint with the NY Labor Commissioner, but there is READ MORE

Q: What steps might be considered to comply with the NY State pay transparency law?

A:  The primary objective of the law is to address and diminish pay inequity and discriminatory wage-setting and hiring practices by requiring transparent sharing of compensation information up front. With that in mind, employers may: READ MORE

Q: Does NJ have a similar state law?

A: While there are bills pending, NJ has yet to pass a state pay transparency law. One NJ city passed a law in 2022. READ MORE

Employment Practices (April 27, 2023)

New York State’s Human Rights Law protects victims of harassment, including sexual harassment. All New York State employers are required to ensure compliance with a sexual harassment prevention policy that meets or exceeds minimum standards set forth in Section 201-g of the New York Labor Law. Employers can establish their own policies, as long as they meet or exceed the minimum standards, or they can adopt the model policy published by the New York State Department of Labor (NYSDOL). The state law also requires employers to provide all NY employees with annual, interactive sexual harassment prevention training. 

Earlier this month, the NYSDOL released a revised model policy, along with updated training materials (a script, slides and a new training video, to be used in conjunction with a written assessment form). The revised materials reflect the DOL’s increased emphasis on a variety of issues such as:

Click here for more information and for NYSDOL’s revised model sexual harassment policy and training materials.

NYC has separate sexual harassment training requirements for NYC employers. Note, the state law applies to all employers in New York State, including NYC employers. Employers subject to the NYC law can comply with both the New York State and NYC training requirements by using the online training provided by the NYC Commission on Human Rights. NYC's online training is available here.

All New York employers should review their sexual harassment policies and training materials to ensure that they meet the minimum standards set by the state law and as outlined in the updated model policy. And, if using the updated materials, employers should make sure that they are customized to fit their particular needs.

Employment Practices (July 1, 2022)

Q: An employee comes to work with an anti-abortion message written on his t-shirt. When other employees complain, he responds that his First Amendment right to free speech is being violated. What should the employer do?

A: A dangerous, knee-jerk reaction would be to tell the employee to go home, change his shirt and come back to work. While the First Amendment does not protect speech in a private workplace (see my prior post on this topic), the employer should proceed cautiously. Read More

Employment Practices (May 2022 ) (UPDATES as of APRIL and May 2022 are in RED)

All Employers Take Note - Even If You Are Not Located in NYC, the NYC Salary Disclosure Law May Apply to You!

If you have at least four employees (or you employ one or more domestic workers) and one of them works in NYC (yep, this includes remote employees), the NYC Salary Disclosure Law applies to you – even if you do not have a business location in NYC! Starting on November 1, 2022 covered employers will be required to disclose minimum and maximum salary information in every job, promotion and transfer opportunity advertisement if the opportunity “can or will be performed, in whole or in part, in New York City, whether from an office, in the field, or remotely from the employee’s home.” The posted salary range must reflect what the employer believes, in good faith, is the range it would pay someone for the job at the time of the job posting. Failure to include salary range information will be considered unlawful discrimination in violation of the New York City Human Rights Law.

Q: Which employees count toward the 4 employee (or 1 domestic employee) threshold under the NYC Salary Disclosure Law?
A:  Click here for the answer

Q: Do independent contractors count toward the thresholds?
  Click here for the answer

Q:  If the position may only be performed on-site at a work location outside of NYC, must a covered employer include the expected salary range in the job posting?
A:  Click here for the answer

Q:  Does a job advertisement listing the salary range as a “maximum of $50,000.00/year” or “$15.00/hour and up” comply with the law?
A:  Click here for the answer

Q: Does the law apply if a covered employer is only posting the advertisement on a bulletin board at its work location or on an employee-only intranet?
A: Click here for the answer 

On April 28, 2022, the NYC Council passed a bill amending the law. The bill clarifies that only current employees have the right to bring a lawsuit against their employer for a violation of the NYC salary disclosure law. An employer is subject to a civil penalty of $0 for a first violation if the employer proves to the satisfaction of the NYC Commission on Human Rights that the violation has been cured within 30 days of service of a complaint. The submission of proof of a cure, if accepted, “shall be deemed an admission of liability for all purposes.” The law is silent on penalties for subsequent violations, but guidance issued by the Commission indicates that violators may have to pay affected employees monetary damages, as well as civil penalties up to $250,000.

Most significant is what the bill does not do. It does not limit the geographical scope of the salary disclosure law. The bill specifies that the law does not apply to positions that cannot or will not be performed, at least in part, in NYC. In other words, if the job can be performed by an employee in NYC, the law applies. Therefore, as of November 1, 2022, covered employers located outside of NYC hoping to hire remote employees will be required to include salary/hourly rate ranges in all job, promotion or transfer opportunity advertisements.

The bill also does not increase the threshold for a covered employer from 4 or more employees to 15 or more employees, as anticipated.

The good news is that employers now have time to review current employee salaries, determine pay ranges for all positions, identify salary range discrepancies and address them before the NYC salary disclosure law goes into effect. Please reach out to us if you, or one of your clients, needs assistance with these tasks.

UPDATE - Mayor Adams signed the amendments into law May 12, 2022.

Employment Practices (February 2022)

Q: Can (or must) private employers in NY and NJ require their employees to get vaccinated for COVID-19?

A: The answer is to this question is complex and, like all issues during the pandemic, subject to change on a daily basis. Click on the links below for updates on:

OSHA Emergency Temporary Standard

CMS Vaccine Mandate

Biden Executive Order 14042

NJ Vaccine Mandates

NYC Vaccine Mandate

NY State Vaccine Mandates

Employment Practices (January 2022)

Rules implementing NY’s Sick Leave Law (NYSLL) were adopted in late December 2021. The Rules, and the NY Department of Labor’s responses to public comment, clarified some important issues. The Q&As below highlight these issues. First, some basics about the NYSLL:

The amount of leave a private sector employer must provide under the NYSLL and whether it is paid, depends on the size of the employer’s workforce. Employers with 4 or less employees and annual revenue of $1 million or less must provide up to 40 hours of unpaid sick leave. Employers with 4 or less employees and annual revenue greater than $1 million, and employers with between five and ninety-nine employees, must provide up to 40 paid hours of sick leave. Employers with one hundred or more employees must provide up to 56 paid hours of sick leave.

Sick leave is accrued at a rate one hour for every thirty hours worked (accrual method) unless an employer chooses to “front load”, meaning the employer may choose to provide the full amount of sick leave at the beginning of the year (e.g., a business with over a 100 employees could provide 56 hours of sick leave to each employee starting January 1 of each year or at the beginning of a twelve month period as determined by the employer).

Q: How do you determine the size of the employer's workforce? Do employers use the number of employees working in New York, or the number of employees working nationwide? Click here for the Answer

Q: What if the employer’s nationwide workforce falls to a lower threshold, dropping below 100 employees - can the employer reduce the annual accrual cap, from 56 hours to 40 hours? Click here for the Answer

Q: What if the employer’s nationwide workforce grows beyond the 100-employee threshold - are its NY employees entitled to accrue up to 56 hours of paid sick leave when the threshold is met? Click here for the Answer

Q: For accrual method sick leave, would an employee have to work at least 30 hours before accruing any leave or does an employee accrue a fraction of a leave hour for each fraction of 30 hours an employee works? Click here for the Answer

Q: Is an employee that receives frontloaded sick leave at the beginning of the calendar year, permitted to carry over unused sick leave to the next calendar year? Click here for the Answer


Sick leave under the NYSLL is separate and additional to the quarantine leave for employees subject to a precautionary or mandatory order of quarantine or isolation related to COVID-19 (Ch. 25 of the laws of 2020), and use of COVID-19 leave does not impact or otherwise utilize an employee’s paid sick leave accruals or usage. More information on COVID-19 Leave is available at paidfamilyleave.ny.gov/covid19

Employment Practices (July 2021)

Q:  Can a supervisor’s use of an offensive racial slur on two occasions support a hostile work environment claim under the New Jersey Law Against Discrimination? 

A: In Rios Jr. v. Meda Pharmaceutical, Inc., an employee claimed that his direct supervisor used the term “Sp*c” on two occasions during conversations with him at their workplace. He reported both instances to human resources, but HR was “dismissive” and took no action. The supervisor placed the employee on probation and a performance improvement plan and eventually fired him alleging poor performance. The appellate court affirmed the trial court’s dismissal of the case based on the “absence of evidence that Rios faced adverse employment consequences because of his complaints” about the comments, and on the lack of corroboration for his testimony.

In June 2021, the NJ Supreme Court unanimously Read More

Employment Practices (Jan 2021) UPDATED MAY 5, 2021



On January 6, 2021, the U.S. Department of Labor announced a final rule clarifying the standard for employee versus independent contractor status under the Fair Labor Standards Act. It outlines how employers can properly classify workers as independent contractors, instead of as employees (and thereby, avoid minimum wage and overtime requirements when appropriate). While the DOL final rule, scheduled to take effect on March 8, 2021, gives employers more leeway in classifying workers as independent contractors, it remains to be seen whether the Biden administration will favor the rule or delay its implementation. Click here for the “nuts and bolts” of the final rule. The Q&As below are taken directly from the final rule.

Q: An individual accepts assignments from a company that provides an app-based service linking those who need home-repair work with those who perform home-repair work. The individual is able to meaningful increase his earnings by exercising initiative and business acumen and by investing in his own equipment. The company, however, has invested millions of dollars in developing and maintaining the app, marketing itself, maintaining the security of information submitted by actual and prospective customers and workers, and monitoring customer satisfaction with the work performed. Under the final rule, is the individual more likely an independent contractor or employee?

A: The DOL says Read More

Q: An individual is the owner and operator of a tractor-trailer and performs transportation services for a logistics company. The owner-operator substantially controls the key aspects of the work. However, the logistics company has installed, at its own expense, a device that limits the maximum speed of the owner-operator's vehicle and monitors the speed through GPS. The company limits the owner-operator's speed in order to comply with federally mandated motor carrier safety regulations and to ensure that she complies with local traffic laws. The company also requires the owner-operator to meet certain contractually agreed-upon delivery deadlines, and her contract includes agreed-upon incentives for meeting, and penalties for missing, the deadlines. Under the final rule, is the individual more likely an independent contractor or employee?

A: The DOL says
Read More

Employment Practices (Dec 2020) - UPDATED JANUARY 2022

Q: Can private employers require COVID-19 vaccinations for their employees?


Employment Practices (June 2020)

Under the Families First Coronavirus Response Act (FFCRA), an employee is entitled to paid sick leave and/or expanded family and medical leave if the employee is unable to work (including telework) because he or she needs to care for his or her child if (a) the child’s school or place of care is closed, or (b) the child care provider is unavailable, due to COVID-19-related reasons.  An employee may take paid sick leave to care for his or her child only when the employee needs to, and actually is, caring for his or her child. The US Dept. of Labor stated “generally, an employee does not need to take such leave if another suitable individual — such as a co-parent, co-guardian, or the usual child care provider — is available to provide the care the employee’s child needs.”

Q: Can an employee take paid leave under the FFCRA to care for his or her child because school is closed for the summer vacation?

A: The US Dept. of Labor’s answer to this question is Read More

Q: Can an employee take paid leave under the FFCRA if his or her preferred summer child care provider – a camp, daycare or other program - is closed for COVID-19 related reasons, but other options are available?

A: This specific question has not been addressed by the USDOL, but Read More

If you want to read FFCRA Questions and Answers posted by the US Dept. of Labor, Click Here.

Construction Liens (May 2020)

Despite NJ Exec. Order 122 requiring the closure of all non-essential construction projects as of April 10, 2020, the NJ legislature did NOT extend the deadline to file and record commercial construction liens! Such liens must be filed no later than 90 days from the last time work was performed or materials/equipment were provided to the site for which payment is due.  Warranty work and service calls do not extend this deadline. If a commercial construction lien is not filed by the 90th day, lien rights are lost. Those interested in filing commercial construction liens should not delay. 

Commercial construction liens must be filed in the County Clerk's Office where the property is located. County Clerk’s Offices are closed to the general public due to the COVID-19 pandemic. To make matters worse, certain County Clerks are not set up for online filing. In many cases, lien claims will have to be mailed to the Clerk’s offices. These offices are backlogged and suffering from logistical and processing delays. For instance, a certain County Clerk’s Office that does not have online filing advised Fellig Schwartz that construction liens must be mailed in; one of their employees picks up the mail from the clerk’s office once a week, usually on Tuesdays. It is unclear how this Clerk’s Office will, for instance, confirm that a construction lien was timely delivered via mail on day 89, if the employee did not pick up the mail until day 95. Under such circumstances, ensuring that a construction lien is filed timely will be difficult if left to the last minute. The risks of late filing and loss of lien rights are real.

Click here to learn more about Construction Lien Law Basics.

NJ Executive Orders

On April 8, 2020, Governor Murphy issued his latest Executive Order. EO-122 requires the cessation of all non-essential construction projects and imposes additional mitigation requirements on essential retail businesses and other essential industries to limit the spread of Covid-19.  This takes effect Friday, April 10, 2020 at 8 p.m.  Click here to read EO-122.

Click here to access prior Executive Orders.

Employment Practices (October 2019)

The Fair Labor Standards Act (FLSA) requires that certain employees be paid at least the Federal minimum wage for all hours worked, and overtime pay at a rate of time and one-half the regular rate of pay after forty (40) hours in any particular workweek. These employees are “nonexempt” – meaning they are not exempt from such requirements (ie. they are protected by such laws). “Exempt” employees are not protected by these laws, ie. exempt employees are not entitled to overtime pay.

Q:  You pay your secretary a salary. Is she exempt under the FLSA (ie. you do not have to pay your secretary overtime if she works over 40 hours in a particular workweek)?

A:  All salaried employees are Read More

The US Dept. of Labor Issues Final Rule that Will Increase the Minimum Salary Threshold

Effective January 1, 2020, the FLSA requires that employees must be paid Read More

Q: Do these changes affect NJ employees/employers? Click here for the answer.

Q: Do these changes affect NY employees/employers? Click here for the answer.

Employment Practices (March 2019)

NJ’s minimum wage is going up.  NJ’s current minimum wage is $8.85 per hour.

Pursuant to the new law signed by Governor Murphy on February 4, 2019, NJ’s minimum wage will increase on July 1, 2019, and on the first of January each year thereafter until 2024 so that by 2024, NJ’s minimum wage will be $15 per hour.  Click here for the NJ minimum wage increase schedule.

Does this apply to small employers?  Click here for the answer.

Employment Practices (July 2018)

Q: Do severance payments preclude NJ unemployment benefits?
A:  It depends upon the circumstances. Click here for the answer.

Q: Do severance payments preclude NY unemployment benefits?
A: It depends. Click here for the answer.

Employment Practices (May 2018 - UPDATED 2020)

New Jersey’s Paid Sick Leave Act went into effect on October 29, 2018 (final regulations and amendments went into effect in 2020). It applies to just about every private employer and employee in New Jersey!

What employers are covered?  What employees are covered?  Click here for the answers.

When do employees start accruing sick time? How is paid sick leave accrued? Can employers require new employees to complete a certain number of days of employment before using accrued sick time?  Click here for the answers.

Can accrued sick time be carried over to the next benefit year and if so, to what extent?  That depends . . . Click here for the answer.

What happens to unused, accrued sick leave upon separation? What happens to unused, accrued sick leave if a former employee is reinstated to employment? Click here for the answers.

For what reasons may paid sick time be used?  May an employer require advance notice and documentation? What if an employee is absent for 3 consecutive days or more? Click here for the answers. 

What if I work or run a business in a NJ municipality that has its own paid sick leave ordinance - which law applies? Click here for the answer.

Employment Practices (March 2018)


New Jersey will soon be one of the first states to have an equal pay law that extends beyond gender to all classes of employees that are protected under the state’s antidiscrimination law. Governor Murphy is about to sign the Diane B. Allen Equal Pay Act, which makes it unlawful for an employer to compensate employees of a protected class less than employees that are not in that class for “substantially similar” work in terms of skill, effort, and responsibility. It will also be a violation of the law for an employer to retaliate against an employee for requesting, discussing with, or disclosing to another employee or his/her lawyer or any government agency, information related to employee compensation. Also, the law prohibits a NJ employer from requiring an employee, as a condition of employment, to sign a waiver or to agree not to make these types of requests or disclosures. The law applies to both public and private employers in NJ.

Q: What is a “protected class” in New Jersey? Click Here for the Answer.

Q: Under what circumstances will an employer be allowed to pay different rates of compensation to employees for substantially similar work? Click Here for the Answer.

Q: If a NJ employer conducts an internal audit and finds violations of the NJ Equal Pay Act, can the employer decrease the compensation of certain employees to the compensation of other employees so that they are paid equally? Click Here for the Answer.

Q:  What if a NJ employer is found to be in violation of the Equal Pay Act? Click Here for the Answer.

As we get closer to the date the Equal Pay Act takes effect, July 1, 2018, employers should identify any problematic pay disparities and, if found, take steps to remedy any differences that could be attributed to membership in a protected class.

Employment Practices (February 2018)


One of Governor Christie’s last acts before leaving office was to sign a law to protect breastfeeding under the New Jersey Law Against Discrimination. It is now a civil rights violation for an employer to fire or otherwise discriminate against a female employee for breastfeeding or expressing her milk during breaks.  A NJ employer also may not refuse to hire a breastfeeding job applicant. NJ’s law applies to all employers regardless of size and applies to all employees. It requires employers to provide reasonable break times each day and a suitable room or location, other than a toilet stall, for an employee to express milk in private, which should be near the employee's work area, unless the employer can show that providing this accommodation would pose an undue hardship on its business operations.

Q: Does NY have a similar law?  Click here for the Answer.


Governor Murphy’s first official act upon taking office was to sign an executive order targeting the wage gap between men and women working in NJ. Effective February 1, 2018, NJ state agencies are prohibited from asking a job applicant for past wage history unless or until a conditional offer of employment, including an explanation of the overall compensation package, has been extended. State agencies may not  investigate or research prior salaries of applicants, but may request or verify current or previous compensation information prior to a conditional job offer if an applicant volunteers such information or if verification is required by federal, state or local law. An agency that obtained salary history information prior to the effective date is prohibited from using that information in any employment decision unless required by law or collective bargaining agreement.

Q: Does NJ have a similar law that applies to private employers statewide?

As we reported last year, Governor Christie Read On

Q: Does NY have a similar law that applies to NY state agencies and NY state employees?

A: In 2017, NY State Read On

Q: Does NY have a similar law that applies to private NY employers?

A: Yes and no. Read on

Employment Practices (August 2017)

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?

A3: Click here for the answer.

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?

A4: Click here for the answer.

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. 

 Q: Employers commonly ask applicants to identify their “salary expectations”.  Will this question violate the NYC law?  Click here for the answer.

 Q: If the applicant discloses his/her salary history, can a NYC employer verify the salary history? 

 A: Maybe. The law precludes . . . Click here for more.

 Q: Are there similar laws in NY (outside NYC)?

 A: Earlier this year, NY banned . . . Read on.

 Q: Does NJ have a similar law?

 A:  In 2016, the NJ Senate and Assembly passed a bill . . . Keep reading.

 Q: Is this a trend?

 A: Massachusetts, Philadelphia and Puerto Rico recently passed similar laws, and . . . Click here for more.

Take Away:

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.

Employment Practices (September 2016)


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

Employment Practices (April 2016)


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?

Q: Your NYC business has employees working in NYC that are covered by a collective bargaining agreement. Are they eligible for paid sick leave under the NYC Earned Sick Time Act?

Want an overview of the NYC Earned Sick Time Act and a copy of the notice that employers must post?


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.
Minimum wages will increase depending upon the size of the employer and the county where the employer is based. Click here for an Easy To Read Chart outlining Gov. Cuomo's plan.

Employment Practices (March 2016)

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?

Employment Practices (November 2015)

Q: You are currently interviewing potential applicants for your company’s bookkeeper position.  Can you lawfully run the applicant’s credit history before making a hiring decision?

Q: You want to go a step further and require the candidate to disclose their criminal history in a job application. Is this lawful?

Employment Practices (April 2015)

Q: One of your employees just posted on Facebook the following message about his supervisor:
“Bob is such a NASTY MOTHER F#@KER don’t know how to talk to people!!!!!! F*#k his mother and his entire f*#king family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”  You fire him. Is this wrongful termination?  

Employment Practices (January 2015)

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.  Do you need a copy of the new NY Minimum Wage Information Poster? Click here.


Q: Which state has the higher minimum wage rate, New York or New Jersey?

Business and Employment Practices
(October 2014) by Audra L. Schwartz 

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.


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?

Business Practices
(April 2014) by Audra L. Schwartz

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?

Employment Practices (August 2013) - by Audra L. Schwartz

Did the Borgata Hotel-Casino violate NJ’s Law Against Discrimination when it required its “costumed beverage servers” to comply with its “Borgata Babes” program – a program which required the servers to maintain a maximum weight of 7% over their individual hire weight, to wear revealing uniforms, as well as makeup and hairstyles, designed to increase their sex appeal, and to be referred to as “Babes”?

ALERT - NJ Employers - the NJSAFE Act goes into effect October 1, 2013.  Click here for more information.

Employment Practices (July 2013) - by Audra L. Schwartz

Q: An employee who suffered a domestic violence incident has been absent from her NJ job for 10 days, first to obtain medical treatment, then due to her temporary relocation to a safe house, and later, to obtain counseling. The employer is sympathetic but her absence is affecting business operations. Must the employer continue to hold the employee’s job?

Q:  Are employees of a NYC business entitled by law to a certain amount of sick leave (paid or unpaid)?

Q: A NJ employer required its hourly employees to work on Labor Day even though the employer normally gives this day off as a paid holiday. Is the employer required to pay time and a half for hours worked on Labor Day?  

Employment Practices (4/29/13) - by Audra L. Schwartz

Q:  A store manager observes a customer neglecting her two year old child and reports the customer to the NJ Division of Child Protection and Permanency giving the agency the customer’s name and address (from store records) so that the agency can identify the customer.  The store fires the manager for violating its policy against employee disclosure of customer identification information.  Did the employer violate NJ’s whistleblower law when it terminated the employee?

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.

Q: You are hiring a new employee and she will start on May 15, 2013.  Which new hire forms must be completed and filed? 

Business Practices (4/29/13) by Audra L. Schwartz

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.

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?

Employment Practices (3/29/13) by Audra L. Schwartz

Q: It’s your busy season. You've notified your employee that he must work his regular hours next week despite the fact that he received a jury duty summons.  He fails to show up for work and instead attends jury duty.  You fire him for insubordination. Does your employee have grounds for a wrongful termination claim?  

Q: Does NJ or NY statutory law require a private employer to pay its employee wages while he/she is serving on jury duty?

Q:  A company hires merchandisers to create displays of its products at various retail stores.  The merchandisers are hired solely as independent contractors under written contracts and on a 1099 basis. Merchandisers are free to accept or decline work, or they can accept a job and subcontract it out.  They are also free to perform similar work for other companies but currently, none of the merchandisers work for any other companies. Are the merchandisers valid “independent contractors” or are they “employees” under the NJ Dept. of Labor “ABC” test?

Business Practices (2/28/13) - by Audra L. Schwartz

Q: You’ve put down a hefty deposit to have a custom piece of machinery built or maybe to have a new warehouse constructed.  Can the party with whom you contracted use as an excuse for its non-performance, its unexpected inability to obtain financing, or an unanticipated rise in the cost of materials due to the global economic crisis?

Employment Practices (2/28/13) by Audra L. Schwartz

Q: Your employee has been performing badly and later admits that he is an alcoholic. He agrees to sign a contract in which he pledges to abstain, to submit to random alcohol tests and that if he fails such tests, he will be terminated. His performance improves. A year later, he fails a random breathalyzer test and you fire him.   Is this wrongful termination? 

Employment Practices (11/20/12) by Audra L. Schwartz

Q: Are NJ and NY Employers Required to Pay Their Non-Exempt Employees for Periods of Closure Caused by Hurricane Sandy?

Q: Are NJ and NY Employers Required to Pay Exempt Employees for Periods of Closure Caused by Hurricane Sandy?

Q: Can a NJ Employer Limit Its Exposure to Sexual Harassment Claims Even When a Male Employee Makes Repeated Crude Comments About a Female Employee's Body and Sexual Practices and Tries to Grope and Kiss Her?

Employment Practices
by Audra L. Schwartz

Q: Can a New Jersey Employee, Whose Supervisors Routinely Directed Anti-Semitic Remarks at Him, Maintain a Claim Against his Employer under the New Jersey Law Against Discrimination (“LAD”) Even Though He Is NOT Jewish?

Q: Can NJ and NY Employees Covertly Record Their Supervisor’s Remarks and Rely Upon the Recordings in Litigation?

Q: Can a New York Employer Deduct Overpaid Wages From an Employee’s Paycheck?

Q: Must a New Jersey Employer Ask Questions About the Source of a Customer List Received From a New Hire?

Q: Do Severance Payments Preclude New Jersey Unemployment Benefits?

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