New Jersey Minimum Wage Set To Increase To $8.38 Per Hour

New Jersey’s minimum wage will increase from $8.25 to $8.38 per hour on January 1, 2015. This increase is the result of a Constitutional Amendment that New Jersey voters approved in November 2013 which tied future increases in the minimum wage to increases in the consumer price index for all urban wage earners and clerical workers (“CPI”). The $0.13 increase in the minimum wage reflects a 1.59% increase in the CPI.

For more information about New Jersey’s minimum wage requirement and our firm’s wage and hour compliance audit services, please contact John R. Vreeland, Esq., Director of the firm’s Wage & Hour Compliance Practice Group, jvreeland@genovaburns.com, or Joseph V. Manney, Esq., jmanney@genovaburns.com.

Court Denies EEOC’s Requested Preliminary Injunction to Block Wellness Plan Biometric Testing

On November 3 U.S. District Court Judge Ann Montgomery gave Honeywell International a victory in Round One of the EEOC’s legal challenge to Honeywell’s wellness program, by refusing to grant the EEOC preliminary restraints barring Honeywell from imposing monetary penalties on employees who refuse to submit to biometric screening. Judge Montgomery reasoned that she was not prepared to decide whether the EEOC would prevail on the merits, and it would be easier to require Honeywell to reimburse employees for monetary penalties they suffer as opposed to blocking the penalties for now and assessing the penalties later if the wellness program is determined to be lawful. So for now, Honeywell’s biometric screening may continue.

If you have any questions about whether your company’s wellness program is compliant with the Affordable Care Act, HIPAA, the ADA or GINA, please contact Patrick W. McGovern, Esq., in our Employee Benefits Group at 973-535-7129, pmcgovern@genovaburns.com.

EEOC Asks Court To Halt Biometric Testing Features of Corporate Wellness Program

On October 27, 2014 the Equal Employment Opportunity Commission asked the U.S. District Court in Minnesota to temporarily restrain Honeywell International’s wellness program from performing biometric testing on employees. The EEOC claims preliminary court relief is needed to prevent employees from suffering irreparable harm due to submitting to wellness program requirements. Employees can choose not to submit to biometric testing, which requires taking a blood sample, but making this choice will result in monetary penalties, ranging from a $500 surcharge to $1500 in extra premium contributions. A court hearing on the EEOC’s request for a preliminary injunction is scheduled for November 3 at the U.S. Court House in Minneapolis.

The EEOC claims that Honeywell’s biometric testing includes drawing blood, measuring body mass indexes, and screening for high blood pressure, diabetes, and smoking and therefore is an involuntary medical exam prohibited by the Americans with Disabilities Act (ADA). The EEOC also claims that the biometric testing violates the Genetic Information Nondiscrimination Act (GINA) by requiring disclosure of spousal medical history, and therefore family medical history.

On October 30 Honeywell filed its opposition to the EEOC’s petition and argues that its wellness program is voluntary and permissible under ADA provisions that allow employers to request medical examinations in connection with voluntary wellness programs. Honeywell also claims its program is covered by the ADA’s insurance safe harbor provision. It denies any violation of GINA since its wellness program makes no inquiry about family health industry, and argues that GINA expressly authorizes its biometric screening program.

If you have any questions about whether your company’s wellness program is compliant with the Affordable Care Act, HIPAA, the ADA or GINA, please contact Patrick W. McGovern, Esq., in our Employee Benefits Group at 973-535-7129, pmcgovern@genovaburns.com.

N.J. Bill Requiring Paid Sick Time for All Employees Moves Forward

Last week, an ambitious bill that would require all employers in New Jersey to offer paid sick days to employees was approved by the Assembly Labor Committee, clearing its first hurdle in the Legislative process. Assembly Bill No. 2354, sponsored by Assemblywoman Pamela R. Lampitt, District 6 (Burlington and Camden) and  Assemblyman Raj Mukherji, District 33 (Hudson), would require New Jersey businesses with 10 or more employees to provide up to 72 hours of paid sick time, equal to nine full days, while employers with fewer than 10 employees must provide up to 40 hours, equal to five full days, each benefit year. The bill sets only a minimum guarantee, but employers would be allowed to provide more generous sick-leave benefits.

Each employee would earn one hour of paid sick time for every 30 hours worked.  Sick time may be used for an employee’s health care, the care of a family member, the closure of the employee’s place of business due to a public health emergency, to care for a child whose school is closed due to a public health emergency, and time needed to deal with either being the victim of, or having a family member who is, the victim of domestic violence.  The Bill also creates an exception for employees covered by a Collective Bargaining Agreement.

First introduced in February of this year, this Bill comes at a time where numerous municipalities throughout the State have already enacted its own versions of the proposed paid sick time regulation. Mandatory paid sick time laws are already in effect in six New Jersey cities: Newark, Jersey City, East Orange, Paterson, Passaic and Irvington.  Residents of Trenton and Montclair will vote for the passage of their own earned sick leave law in Tuesday’s election.  Only Connecticut and California have statewide legislation currently in place.

For more information on this Bill and compliance with paid sick time laws, please contact Dina M. Mastellone, Esq., Counsel in the Human Resource and Employment Law & Litigation Practice Groups at dmastellone@genovaburns.com

EEO-1 Survey Deadline is Approaching

The annual deadline for the completion of EEO-1 surveys is September 30, 2014.  All employers subject to this requirement should have received (or will shortly receive) the reports from the Equal Employment Opportunity Commission (“EEOC”).   EEO-1 reports must be filed by all private employers with 100 or more employees and all federal government contractors or first-tier subcontractors with 50 or more employees and a contract or subcontract valued at $50,000 or more. Private employers with fewer than 100 employees are still subject to this requirement if the company is owned or affiliated with another employer, and both enterprises employ greater than 100 employees.  These reports help the federal government to identify employment data on race/ethnicity, gender and job categories.

The EEOC prefers that employers file the EEO-1 report electronically.  Employers can access the web-based EEO-1 form here: http://www.eeoc.gov/employers/eeo1survey/.  Employers who have previously filled out the survey will also receive a paper copy in the mail.  Instructions for the completion of the survey can be found on the EEOC’s website or attached to the form.

If you have any questions regarding the completion of this report, please contact Patrick W. McGovern, Esq., at 973-535-7129, pmcgovern@genovaburns.com or Allison Gotfried, Esq., at 973-646-3297, agotfried@genovaburns.com.

Philadelphia Mayor Signs Legislation to Accommodate Nursing Mothers in the Workplace

Last week Philadelphia Mayor, Michael A. Nutter, signed into law, City of Philadelphia Bill No. 130922 (“the Bill” or “the Ordinance”), a City ordinance which requires employers to reasonably accommodate an employee’s need to express breast milk in the workplace. The Bill takes effect immediately.

The Legislation amends Philadelphia’s Fair Practices Ordinance which now defines the failure to accommodate an employee’s need to express breast milk in the workplace as an unlawful employment practice. As a result, the failure to accommodate an employee’s need to express breast milk in the workplace “is discrimination based on sex and therefore an unlawful business practice…”

Reasonable accommodations under the Bill include the following:

  • Providing unpaid break time or allowing an employee to use paid break, mealtime, or both, to express milk and;
  • Providing a private, sanitary space that is not a bathroom where an employee can express breast milk, so long as these requirements do not impose an undue hardship on an employer.

The Bill is similar to the 2010 Federal law which requires employers to provide a reasonable amount of break time to new mothers needing to express breast milk for up to one year after the birth of a child. The Bill, however, has no time restrictions and applies to all Philadelphia employers, no matter their size.

This Bill comes on the heels of another recent amendment to Philadelphia’s Fair Practices Ordinance deeming it an unlawful employment practice for an employer to fail to reasonably accommodate an employee’s needs related to “pregnancy, childbirth, or a related medical condition…” Thus, the City’s recent actions clearly demonstrate its concern for the rights of pregnant employees and new mothers.

If you have any questions or concerns regarding how this new legislation may affect your business or should need assistance in bringing your business into compliance with this new law, please contact Dena B. Calo at dcalo@genovaburns.com or James Bucci at jbucci@genovaburns.com.

New Jersey Set to Prohibit Employers from Screening Job Applicants for Criminal Convictions Until After Job Interview

Effective March 1, 2015, any employer with 15 or more employees that does business in New Jersey or accepts applications for employment within New Jersey is prohibited from inquiring into an applicant’s criminal history record until the employer conducts an interview of the applicant.  On August 11, 2014, Governor Christie signed into law what is commonly referred to as the “ban-the-box” bill, so named because it prohibits an applicant from being disqualified from consideration for a job opening early in the hiring process simply because the applicant answered “yes” to an inquiry about criminal convictions.  Employers may not publish in a job posting or enforce a policy against consideration of applicants with a criminal history.  Employers may still use background checks to ensure that job applicants comply with job requirements and inquire about criminal background after the interview.  The term applicant is defined broadly to include anyone considered for employment, anyone who requests consideration for employment, and even current employees, with the proviso that the employment must be entirely or substantially in New Jersey.

Once the law takes effect, an employer may ask about and consider a job applicant’s criminal history after it interviews the applicant with a key exception being that a covered employer may not refuse to hire an applicant on the basis of a criminal record that has been expunged or erased through executive pardon.  Certain employers such as law enforcement, corrections bureaus, the judiciary, the U.S. Government, emergency management, and employers whose jobs by law disqualify an applicant with a criminal conviction are exempt from these requirements.  Also exempt are domestic workers, independent contractors, directors and trustees.

The new law specifically bars any private cause of action for a violation.  However, an employer is subject to civil penalties, starting at $1,000 for the first violation, $5,000 for the second violation, and $10,000 for the third and subsequent violations.

These new requirements take effect in six months. Employers should begin consulting with legal counsel to ensure that their hiring process forms, job applications and hiring policies are in compliance with the new legislation.  Legal compliance should include educating managers, supervisors, and recruiting personnel regarding these new standards to ensure they are pushed down into the organization.

If you have any questions or for more information about the requirements of the ban-the-box legislation and its impact on your business’s hiring procedures, please contact Patrick W. McGovern, Esq., at 973-535-7129, pmcgovern@genovaburns.com or Allison Gotfried, Esq., at 973-646-3297, agotfried@genovaburns.com.

President Expands OFCCP Jurisdiction to Investigating Discrimination Based on Sexual Orientation and Gender Identity

Effective immediately, federal contractors, including construction employers working on federally-funded construction projects, and federal government employers are prohibited from discriminating against applicants and employees based on sexual orientation and gender identity. On July 21, 2014, President Obama signed Executive Order 13672 which amends Executive Orders 11246 and 11478, the original Executive Orders mandating equal employment opportunities for women and minorities.

Executive Order 11246 as amended now prohibits federal contractors from discriminating in employment based upon sex, national origin and the newly added classifications of sexual orientation and gender identity. Federal contractors must now ensure that job applicants and employees are free from discrimination based on sexual orientation and gender identity, and must include a statement in all job postings that applicants will be considered regardless of sexual orientation and gender identity. Executive Order 11478 as amended now prohibits federal employers from discriminating in employment based on sexual orientation and gender identity.

Enforced by the Office of Federal Contract Compliance Programs (“OFCCP”), the new Executive Order requirements apply to all federal government contractors including construction contractors that hold federal contracts with a value of at least $10,000 in one year. The Executive Order applies to all covered contracts entered into on or after July 21, 2014. The Secretary of Labor will propose regulations to implement the new requirements in October 2014.

The new Executive Order does not expand the affirmative action requirements or programs that are required for the classifications of sex, national origin, disability and veteran status. Moreover, the new Executive Order does not exempt religious organizations from the new anti-discrimination mandates. However, the new Executive Order did not amend President Bush’s Executive Order 13279 (Equal Protection of the Laws for Faith-Based and Community Organizations) which provides in part that “[n]o organization should be discriminated against on the basis of religion or religious belief in the administration or distribution of Federal financial assistance under social service programs.” How the new Executive Order will be enforced against religious organizations, therefore, remains an open question and will be answered somewhat by the Labor Department’s proposed regulations.

Employers that are unsure as to whether the Executive Order applies to them should review coverage with legal counsel. Owing to these new requirements, federal contractors should review their policies, job postings and other hiring procedures to ensure they are in compliance. Non-compliant policies and postings should be revised immediately. Federal contractors should educate management, supervisors and their staffing and recruiting personnel regarding these new requirements to ensure they understand the wider scope of affirmative action requirements.

If you have any questions or for more information about the requirements of the new Executive Order and its impact on your business’s equal employment opportunity and anti-harassment policies, please contact Patrick W. McGovern, Esq., at 973-535-7129, pmcgovern@genovaburns.com or Allison Gotfried, Esq., at 973-646-3297, agotfried@genovaburns.com.

Supreme Court Rules President’s 2012 Appointments to NLRB Unconstitutional, Invalidates Key Pro-Union NLRB Decision, and Establishes Precedent for Reversals of Other NLRB Decisions and Appointments

In a unanimous decision issued June 26, 2014, the Supreme Court ruled that President Obama’s three so-called recess appointments to the National Labor Relations Board in January 2012 were unconstitutional and invalidated the order entered by the improperly appointed Board panel. National Labor Relations Board v. Noel Canning. When the appointments were made, the Senate was in pro forma sessions, meeting every three days and transacting some Senate business. The Senate met on January 3 and January 6, 2012. The President made the NLRB appointments on January 4. The Court’s 5-Justice majority agreed that any recess shorter than 10 days “is presumptively too short” for the President to exercise his appointment power.

The Court affirmed the 2013 D.C. Circuit Court of Appeals’ decision invalidating the Board’s 2012 decision but used distinctly different constitutional rationale to arrive at the same conclusion. While the Court of Appeals’ decision set aside the President’s appointments on the basis that a valid recess appointment must be an intersession appointment, the Supreme Court held that the Constitution’s Recess Appointments Clause permits both intersession and intra-session appointments. At issue for the Supreme Court was the length of the Senate’s intra-session recess in January 2012. The Court held that “three days is too short a time to bring a recess within the scope of the Clause,” so the President lacked authority to make these appointments under the Recess Appointment Clause. The Court declined to offer any bright-line test to determine when the Senate is actually in session versus recess and refused to second-guess the Senate’s motives for avoiding a lengthy recess, in the interests of avoiding “judicial interference with the Legislative Branch.” The Court commented simply, “The Senate is in session when it says it is provided that, under its own rules it retains the capacity to transact Senate business.”

The possible implications of the Court’s decision are far reaching. Numerous pending court challenges to other decisions by the same Board panelists will likely be disposed of unfavorably to the NLRB. Some estimates of Board precedents that may ultimately be affected by the decision reach 100 cases. In addition, this decision rekindles the debate as to what other Board actions must be revisited, such as personnel appointments and decisions made by regional directors who were not appointed by a properly constituted NLRB.

If you have any questions or for more information about the Supreme Court’s ruling and its impact on your company’s labor relations strategy, please contact Patrick W. McGovern, Esq., pmcgovern@genovaburns.com or any member of our Labor Law Practice Group.

Important Deadline Approaching Under New York City’s Paid Sick Leave Law

By Thursday, May 1, 2014, covered employers under New York City’s Earned Sick Time Act, also known as the Paid Sick Leave Law, must distribute a written notice to existing employees regarding their rights under the Paid Sick Leave Law. This notice is available on the Department of Consumer Affairs website: http://www.nyc.gov/html/dca/downloads/pdf/MandatoryNotice.pdf. This notice must also be distributed to all new hires, first employed on or after April 1, 2014. The notice must set forth your calendar year, including the start and end date as each employer’s calendar year may differ.

Effective April 1, 2014, covered employers should have begun complying with the Paid Sick Leave Law. Under the Paid Sick Leave Law,  employers with 5 or more employees must provide up to 40 hours of paid sick leave per calendar year for employees who work more than 80 hours per calendar year. A calendar year is defined as any regular and consecutive twelve month period of time as determined by the employer. Eligible employees accrue 1 hour for every 30 hours worked and should have begun accruing sick time effective April 1, 2014. Employees can begin using their sick leave 120 days after their first day of employment. For existing employees, this means that they can begin using their accrued sick leave as of July 30, 2014. Employers must retain records documenting compliance with law for at least three years.

If your current paid leave policy provides eligible employees with paid leave that meets the requirements of the Act and allows employees to use the leave for the purposes covered under the Act, you are not required to provide additional leave.

Please note that there are exceptions to the Paid Sick Leave Law. For example, employees covered by a collective bargaining agreement in effect as of April 1, 2014 will not be covered under the Act until the collective bargaining agreement terminates. The Act also does not apply to employees of government agencies.

For more information on the Paid Sick Leave Law and how you it may affect your current policies, please contact Dena B. Calo, Esq., Director of the Human Resources Practice Group and Partner in the Employment Law & Litigation Group, at dcalo@genovaburns.com, or Erica B. Lowenthal, Esq., Associate in the Employment Law & Litigation Group, at elowenthal@genovaburns.com.