Mr. Martinez (Maybe) Goes to Washington: NJ Chief Administrator to be Appointed by President Trump

Raymond Martinez, the current Chair and Chief Administrator of the New Jersey Motor Vehicle Commission (“MVC”), is to be appointed by President Trump as the next Administrator of the Federal Motor Carrier Safety Administration (“FMCSA”). The FMCSA is a separate administration within the U.S. Department of Transportation and is tasked primarily with ensuring safety in motor carrier operations through strong safety regulation enforcement.

Mr. Martinez has served under Governor Christie since 2010. In his role as Chief Administrator, Mr. Martinez directs 2,400 employees at 71 MVC locations across New Jersey. He also serves as Chairman of the Motor Vehicle Commission Board, a policy-making body comprised of government and public members. Governor Christie appointed Mr. Martinez as an Executive Branch Member of the State Planning Commission, where he is called upon to represent state government in the oversight of environmental protection issues, land use, development and redevelopment.  In 2015, Mr. Martinez was selected by the American Association of Motor Vehicle Administrators (“AAMVA”) to serve as a member of its International Board of Directors.

Mr. Martinez has been active in the public arena for more than twenty years. From 2005 to 2009, he served as the Deputy U.S. Chief of Protocol and Diplomatic Affairs for the U.S. Department of State, and the White House under President George W. Bush. As such, Mr. Martinez was responsible for managing five operational divisions: Diplomatic Affairs, Foreign Visits, Ceremonial Events, Blair House, and Administration. Between 2000 and 2005, Mr. Martinez served as the Commissioner for the New York State Department of Motor Vehicles as well as Assistant General Counsel for the Long Island Power Authority. During President Reagan’s administration, he served as Deputy Director for Scheduling and Advance for First Lady Nancy Reagan. He also held roles in the U.S. Department of Housing and Urban Development, within the New York State Senate, and as a private attorney.

For questions about employment issues involving the trucking and logistics industries, please contact John Vreeland, Esq., Chair of the Transportation, Trucking & Logistics Group and Partner in the Labor Law Practice Group at jvreeland@nullgenovaburns.com or (973) 535-7118. Please also sign-up for our free Labor & Employment Law Blog at www.labor-law-blog.com to keep up-to-date on the latest news and legal developments effecting your workforce.

President Ends DACA Program, Gives Congress Six Month Deadline to Pass Long-Term Fix for Dreamers

On September 5 U.S. Attorney General Sessions announced that the Administration will end the Obama Administration’s Deferred Action for Childhood Arrivals program, known as DACA. The program has been in effect since mid-2012 and has allowed individuals brought to the U.S. as children or teens before 2007 to apply for work permits and avoid deportation. To be eligible to apply for DACA, an individual had to be under age 16 upon entry into the U.S. and no older than 31 as of June 15, 2012, must have lived in the U.S. continuously since 2007, either be enrolled in high school or college, or already have a diploma or degree, and have no felony criminal convictions, no significant misdemeanor convictions, no more than three other misdemeanor convictions, and not otherwise pose a threat to national security or public safety. If granted deferred action, the individual’s deportation would be deferred and received a work permit (EAD) valid for two years and renewable for additional two-year periods. These individuals are known popularly as dreamers.

Under the Trump administration program, anyone whose DACA status is set to expire by no later than March 5, 2018 will be able to apply for a final two-year permit by October 5, 2017, but all DACA program beneficiaries whose permits expire after March 5, 2018 are ineligible for a renewal. No new DACA applications will be processed. Any individual who has an EAD though the DACA program has no obligation to tell his or her employer that it is a DACA EAD. An employee whose EAD expires and is not renewable will be ineligible to work legally in the U.S. It is crucial that employers know when their employees’ EADs expire. Although there are indications that Congressional Democrats and President Trump are nearing a deal to save the DACA program, the official stance of the Administration is that Congress has six months to pass legislation to save the program. If Congress does not pass legislation by early March 2018, then DACA program enrollees whose EADs expire in the meantime will be subject to deportation.

For an employer that knows or believes it has employees with work permits through DACA, there is currently little they can do after the Attorney General’s announcement, other than advising these employees who are eligible to renew their EADs to do so by October 5, 2017. Employers cannot preemptively discharge these employees before their EADs expire. Doing so may expose the employer to claims of national origin discrimination. An employee whose EAD expires must be removed from the employer’s active payroll. Employers that refuse to release the employees who are not authorized to work in the U.S. can be liable for significant monetary penalties.

For questions about DACA and how it could affect your employees and your business, contact Patrick W. McGovern, Esq., Partner in the firm’s Immigration Law Practice Group, at pmcgovern@nullgenovaburns.com, or by phone at 973-535-7129.

Back to the Drawing Board for EEOC Wellness Program Rules

On August 22 the U.S. District Court in D.C. granted summary judgment to the AARP which challenged the EEOC’s rules governing employer wellness programs. The rules allow an employer to offer or impose on an employee financial incentives or financial penalties depending on participation in an employer wellness program. The Court chose not to vacate the EEOC’s rules for the time being, but instructed the EEOC to explain its rationale for setting a 30% maximum on the incentive or penalty, which would be applied to the employee‘s premium cost,  to determine whether disclosure of the employee’s personal medical information is voluntary, instead of determining that any employer wellness program requiring disclosure of personal medical information is involuntary and therefore unlawful. AARP v. U.S. EEOC, (D.D.C. Aug. 22, 2017).

Under ACA, health insurance plans may lawfully offer an incentive of up to 30% of the cost of coverage, in exchange for the employee’s participation in a health-contingent wellness program. These employer-sponsored wellness programs often involve the collection of personal medical information, which implicates substantive protections of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), both enforced by the EEOC.

Both the ADA and GINA permit employers to collect personal medical information as part of a wellness program if the employee provides the information voluntarily. In May 2016, the EEOC issued an ADA rule stating that imposing a penalty or offering an incentive capped at 30% of the cost of self-only coverage that requires disclosure of ADA-protected information, does not render participation in the wellness program involuntary. Similarly, the EEOC issued a GINA rule allowing employers to offer the same 30% incentives for disclosure of a spouse’s medical information in the course of wellness program participation.

In 2016 AARP sought a preliminary injunction prohibiting enforcement of the ADA and GINA rules which became effective January 1, 2017. The EEOC’s arguments in opposition to the injunction were:

  • The 30% incentive level is in harmony with the ACA incentive level.
  • The 30% incentive level is a reasonable interpretation of “voluntary” based on current insurance rates.
  • The EEOC relied on comments submitted by the American Heart Association endorsing the 30% incentive level.

The Court determined that the EEOC provided inadequate explanation for determining that a 30% penalty or incentive is an appropriate measure of voluntariness. The Court remanded the rules to the EEOC but without vacating them to avoid disrupting current wellness programs. The Court ordered the EEOC to report back to the Court by September 21, 2017.

If you have any questions or would like to discuss how this decision or the EEOC’s wellness program rules affect you or your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Labor Law Practice Group  at 973-535-7129 or pmcgovern@nullgenovaburns.com, Firm Counsel Gina M. Schneider, Esq. at 973-535-7134 or gmschneider@nullgenovaburns.com, or Firm Associate Ryann M. Aaron, Esq. at 973-387-7812 or raaron@nullgenovaburns.com.

New Jersey Supreme Court Says Salary Step Increments are Negotiable, but Avoids Dynamic Status Quo Issue

In a highly anticipated decision, the New Jersey Supreme Court held that the issue of salary step increments is a mandatorily negotiable term and condition of employment.  However, the Court did not decide whether New Jersey’s Public Employment Relations Commission was correct to adopt the static status quo doctrine in lieu of the dynamic status quo doctrine.  Instead, the Court determined that the express terms of the parties’ expired CNAs required the public employer at issue to advance employees along those CNAs’ salary step guides, even after those CNAs expired.

The issues presented to the Supreme Court originated in the cases of In re County of Atlantic and In re Township of Bridgewater.  In County of Atlantic, PERC determined that, given the current landscape, the static status quo doctrine would advance labor negotiations between New Jersey’s public employers and employees better than the dynamic status quo doctrine, which PERC previously followed.  Under the static status quo doctrine, employees do not advance along a contract’s salary step guide between the time that the contract expires and before a subsequent contract is executed, whereas the opposite is true under the dynamic status quo doctrine.  On the heels of County of Atlantic, PERC decided Township of Bridgewater, in which it concluded that the issue of salary step increases after contract expiration is not a term and condition of employment and therefore not mandatorily negotiable.  On appeal, New Jersey’s Appellate Division reversed PERC.  The Appellate Division found that PERC was not authorized to depart from the dynamic status quo doctrine in the manner that it did, and that post-contract step increases are terms and conditions of employment that cannot be terminated unilaterally.

Ultimately, the Supreme Court affirmed the Appellate Division’s decision on “other grounds.” Nevertheless, the Supreme Court undermined PERC’s Bridgewater decision, when the Court concluded that the issue of salary step increments is a mandatorily negotiable term and condition of employment because that issue “is part and parcel to an employee’s compensation for any particular year.” However, because the Supreme Court’s decision rested upon specific contract language, the Court did not decide the issue of which status quo doctrine is appropriate. Nevertheless, the Court suggested that a contract that is silent with respect to the impact of contract expiration on step increases may require “careful consideration of past practices, custom and the viability of the dynamic status quo doctrine.” Accordingly, the Supreme Court advised that “parties would be wise to include explicit language indicating whether a salary guide will continue beyond the contract’s expiration dates.”

For more information about the Supreme Court’s decision and how it may impact your public entity’s labor contract negotiations, please contact James J. McGovern, III, Chair of the firm’s Labor Law Practice Group, at jmcovern@nullgenovaburns.com or 973-535-7122, or Joseph M. Hannon, Counsel in the firm’s Labor Law Practice Group, at jhannon@nullgenovaburns.com or 973-535-7105. Please also sign-up for our free Labor & Employment Law Blog at www.labor-law-blog.com to keep up-to-date on the latest news and legal developments affecting your workforce.

Christie Vetoes Expansion of New Jersey Family Leave & Increased Minimum Wage

On July 21, 2017, New Jersey Governor Chris Christie conditionally vetoed two bills that would have expanded New Jersey’s pioneering paid Family Leave Act and raised minimum wage for certain transportation center service workers.  Under the New Jersey Family Leave Act (NJFLA), which applies to New Jersey companies with 50 or more employees, workers are eligible to receive up to 12 weeks of continuous leave during a given 24-month period to care for a newly born or adopted child, parent, a child under 18, spouse, or civil union partner who has a serious health condition requiring in-patient care, continuing medical treatment or medical supervision.  The leave is partially paid, and eligible employees can generally receive up to $633 per week.

The Bill (A4927) would have extended the NJFLA’s coverage to employers with 20 or more employees and expanded the definition of “family member” to include siblings, grandparents, grandchildren and parents-in-law.  Moreover, the Bill would have doubled the maximum number of weeks of family temporary disability leave benefits from 6 weeks to 12 weeks, increased available intermittent leave from 42 days to 84 days, and raised the weekly cap on paid benefits to $932, depending on the claimant’s income.

Governor Christie denounced the Bill’s supporters as disregarding the increased cost to taxpayers and the potentially adverse impact the bill would have on small businesses in New Jersey.

The minimum wage bill (A4870) would have significantly raised New Jersey’s minimum wage for employees at Newark Liberty International Airport, Newark Penn Station, and the Hoboken Terminal, from $10.10 to $17.98 per hour.  Incidentally, Christie vetoed a bill last year that would have raised New Jersey’s minimum wage from its current $8.44 to $15.00 per hour.  The New Jersey Business & Industry Association, considering the vetoes to be a victory to New Jersey employers, stated that the minimum wage bill would have set “a terrible precedent by circumventing the collective bargaining process and imposing backdoor wage and benefit increases by statute.”

For more information on these vetoes and current laws regarding family leave, minimum wage, or other applicable leave laws, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@nullnullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullnullgenovaburns.com, or 973-533-0777.

September 18 Deadline Set By U.S. Citizenship and Immigration Services for Employers to Use Revised Form I-9

Currently, every employer that recruits, hires, or refers employees for a fee in the U.S. is required to complete the Form I-9, Employment Eligibility Verification process within three days of a new employee’s hiring.  On July 17 the U.S. Citizenship and Immigration Services approved a revised version of Form I-9.

The revised Form I-9 changes the prior form by, among other things, adding Consular Reports of Birth Abroad to the List of Acceptable Documents. Two other clarifications relate to the timing of completion. First, Section 1 of Form I-9 must be completed no later than the first day of employment, as opposed to a previous command that it must be completed “no later than the end of the first day of employment.” Second, persons employed for fewer than three days must present their original I-9 documentation to the employer no later than the first day of employment. The employer must still complete its review of the employee’s employment eligibility documentation within three business days of hiring.

No later than September 18, 2017, all U.S. employers must use the new Form 1-9.  Employers may continue using the prior Form I-9 through September 17, 2017 but should prepare to modify their hiring process to include the revised Form I-9.  Alternatively, employers may choose to use the new Form I-9 right away.  For any existing Form I-9s, employers must continue to comply with the existing separate filing and document retention rules.

The new Form I-9, its instructions, supplements, and translations are available for download here.

For any questions on the new Form I-9 and the I-9 employment eligibility verification process, contact Patrick W. McGovern, Esq., Partner in the firm’s Labor Law Practice Group, at pmcgovern@nullgenovaburns.com, or by phone at 973-535-7129.

Hawaii Court Enjoins Trump Travel Ban For Excluding Non-Immediate Family Members of US Persons and DHS-Approved Refugees

In June the Supreme Court enforced temporarily President Trump’s travel ban to the extent it excludes persons without a “bona fide relationship” to a person or entity in the U.S. The Court expressly identified wives and mothers-in-law as persons who have a bona fide family relationship to a person in the U.S.  Following the Court’s decision, the Trump administration interpreted “bona fide relationship” narrowly, to include only fiancés, spouses, children, parents and siblings of the U.S. person. On July 13 a federal judge in Hawaii loosened the travel ban by entering a nationwide injunction that orders the Trump administration to exempt from the ban grandparents, grandchildren, aunts, uncles, brothers-in-law, sisters-in-law, nieces, nephews, and cousins of persons in the U.S. U.S. District Judge Derrick Watson criticized the Administration’s narrow definition of bona fide family relationship as “the antithesis of common sense,” which “dictates that close family members be defined to include grandparents.”

Additionally, Judge Watson enjoined enforcement of the ban to the extent it excludes from entry refugees who have formal assurance from a U.S. resettlement agency. Judge Watson reasoned that such assurance “meets each of the Supreme Court’s touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security, and it is issued in the ordinary course, and historically has been for decades…Bona fide does not get any more bona fide than that.”

Immediately, the Justice Department appealed Judge Watson’s ruling to the Ninth Circuit and simultaneously filed motion papers with the Supreme Court requesting clarification. In its motion, the Justice Department argues that Judge Watson’s interpretation of the travel ban “empties the Court’s decision of meaning,” because it includes “not just ‘close’ family members, but virtually all family members…Treating all of these relationships as ‘close familial relationship[s]’ reads the term ‘close’ out of the Court’s decision.” The Justice Department asked the Court to stay the effective date of the Hawaii court’s order until the Court resolved the motion to clarify the Court’s June ruling. The Justice Department’s motion, which remains pending, may be viewed here.

If you would like to discuss the implications of the travel ban and the various court decisions affecting the ban for your employees, your hiring plans, and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

Jersey City’s PLA Ordinance Found Preempted by NLRA and ERISA and Void Ab Initio

On June 15 U.S. District Court Judge Wigenton determined that Jersey City’s ordinance, in effect since 2007 and providing for tax abatements for real estate developers that sign Project Labor Agreements (PLAs) is preempted by the National Labor Relations Act and void ab initio. The Jersey City Ordinance mandated that tax abatement recipients sign PLAs that contain no-strike and no-lockout provisions and therefore Jersey City’s Ordinance “directly intrudes on §7 and §8 of the NLRA.” The Court also held that the PLA ordinance’s attempt to regulate the operation and reporting of apprenticeship programs intruded upon and therefore was preempted by the Employee Retirement Income Security Act. Associated Builders and Contractors Inc. v. Jersey City, No. 14-5445 (D.N.J. 2017).

This order is the most recent development in the action’s two-year history, as the case has bounced from court to court. In August 2015 the Contractors association, made up of non-union or “merit shop” contractors, brought suit alleging that Jersey City’s PLA ordinance was preempted by federal law. In August 2015 the District Court dismissed the complaint finding that Jersey City acted as a market participant, and not as a market regulator, and therefore the federal preemption doctrine did not apply to the ordinance. An appeal to the Third Circuit followed and in June 2016 the Court of Appeals reversed the lower court and held that Jersey City was, in fact, a market regulator in its enforcement of the PLA ordinance. The Third Circuit found that the preemption analysis should be applied to the ordinance and remanded the case back to the District Court to apply the preemption analysis. Associated Builders & Contractors Inc. v. Jersey City (3d Cir. 2016). On remand, the Contractors association moved the District Court for judgment on the pleadings. Judge Wigenton granted the motion, voided the ordinance ab initio and ruled that “enforcement of the PLA Ordinance on any tax-abated project is enjoined.”

The practical impact of this ruling is to level the playing field for non-union and unionized developers and construction contractors competing for work on tax-abated projects. The Contractors association claimed that the PLA ordinance had the effects of setting 100% of the tax-abatement project work aside for 15% of the construction workforce, and driving up construction costs, which Jersey City’s taxpayers had to bear in the form of tax abatements. Now, Jersey City cannot require developers or construction contractors to sign PLAs with the Hudson County Building and Construction Trades Council in exchange for tax abatements and the opportunity to work on tax-abated projects. The Court voided the PLA ordinance ab initio, not prospectively. This suggests that on tax-abated projects that are now under way with PLAs in place, general contractors will revisit the process for selecting subcontractors with more discretion to select non-union subcontractors to perform project work.

Also an open question is how Judge Wigenton’s decision will affect similar tax-abatement ordinances in other municipalities that impose PLA requirements. Questions relating to this important decision and the path forward for developers and contractors in Jersey City and elsewhere in the state may be directed to any partner in our firm’s Labor Law Practice Group – James McGovern III, Patrick McGovern, Douglas Solomon, and John Vreeland.

SCOTUS Lifts Injunctions Against Trump Travel Ban for Aliens Unable to Establish Bona Fide Relationship with a U.S. Person or Entity

On June 26, the Supreme Court granted the Trump Administration’s petitions for certiorari and agreed to review next term the Fourth and Ninth Circuits’ decisions that affirmed broad injunctions against enforcement of the President’s second Executive Order on U.S. entry by foreign nationals. In the meantime, in a per curiam decision, the Court granted in part the Administration’s request to lift the lower courts’ injunctions against the travel ban affecting nationals of six predominantly Muslim countries, the 50,000-person refugee cap, and the suspension of the refugee program “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” The Court will hear argument on these consolidated cases in October 2017.

The Supreme Court left in place the lower courts’ injunctions “only with respect to parties similarly situated to Doe, Dr. Elshikh, and Hawaii. In practical terms, this means that §2(c) [of the second Executive Order] may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO-2.”

The Court defined “bona fide relationship” as including individuals with a “close familial relationship,” including a wife or a mother-in-law. For entities, the relationship “must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2.”  This category includes a student who has been admitted to a U.S. university, a person who accepted a job offer with a U.S. employer, and a lecturer invited to address an American audience. The Court stated that the same “bona fide relationship” test will apply to a foreign national who seeks entry to the U.S. as a refugee, regardless of the 50,000- person cap.

Justices Thomas, Alito, and Gorsuch concurred in part and dissented in part. Justice Thomas stated that he would “grant the government’s applications for a stay in their entirety” and agreed “with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits—that is, that the judgments below will be reversed.” The Administration can therefore rely on at least three solid votes to overturn the injunctions in their entirety next fall.

If you would like to discuss the current status of the President’s Executive Order, and the implications of the Executive Order and the Court’s decision for your employees, your hiring plans, and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

Fourth and Ninth Circuits Sink Trump Travel Ban as Prelude to High Court Review

In the most recent judicial setbacks to President Trump’s Executive Order earlier this year suspending the U.S. entry of aliens from six Muslim-majority countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen), reducing the number of refugees allowed entry in 2017 to 50,000, indefinitely and then temporarily barring the admission of Syrian refugees, and suspending the Refugee Admissions Program for 120 days, on May 25 the Fourth Circuit en banc enjoined nationally enforcement of the Executive Order. Although the Justice Department argued that the Order’s primary purpose is advancing national security, the court, with three of the 14 judges dissenting, remained unconvinced that the travel ban had “more to do with national security than it does with effectuating the President’s promised Muslim ban.” The Fourth Circuit found that the Order “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” The opinion referenced statements that President Trump made in 2016 while on the campaign trail, which the court found supported its finding that the Executive Order was religiously motivated and violated the Constitution’s Establishment Clause. However, the court vacated the lower court’s injunction to the extent it enjoined the President. International Refugee Assistance Project v. Trump.

On June 12 the Ninth Circuit in a per curiam decision by a three-judge panel, also upheld a lower court’s nationwide injunction against enforcement of the travel ban, but on the separate grounds that the Executive Order violated U.S. immigration law. The court stated that the revised travel ban “exceeded the scope of authority delegated to [the President] by Congress.” The panel held that by broadly prohibiting entry by all persons from the listed countries, the Executive Order is too broad and ignores important factors, such as the alien’s working arrangements, family matters and access to U.S. medical care. The Ninth Circuit did not address Establishment Clause issues, as the Fourth Circuit did. Instead, its major concern was that “the order does not provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States.” However, the court vacated the injunction against the President and against the Government’s conducting internal reviews of security risks posed by nationals of the listed countries and the refugee program. Hawaii v. Trump.

The Supreme Court must now decide whether to hear the Administration’s appeal from the Courts of Appeals decisions this term. Most recently, in view of the current non-enforcement of the travel ban, on June 14 the President revised the 90-day ban on travelers and the 120-day ban on refugees to ensure they do not expire in the interim and will take effect 72 hours if and after the Administration prevails in having the injunctions lifted.

If you would like to discuss the implications of the Executive Order and these court decisions for your employees, your hiring plans, and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nulllgenovaburns.com.