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.

Employer Can Be Liable For Its Predecessor’s FLSA Violations

The Third Circuit Court of Appeals recently held that an employer can be liable for its predecessor’s violations of the Fair Labor Standards Act. Thompson v. Real Estate Mortgage Network, No. 12-3828 (3d Cir. Apr. 4, 2014). The Third Circuit joins the Seventh and Ninth Circuits on the list of federal circuit courts that have extended successor liability –  a doctrine which has been applied to violations of Title VII, the NLRA, ERISA, the MPPAA, and the ADEA – to violations of the FLSA.

In light of Thompson, every employer in the Third Circuit that intends to acquire another business should fully vet its predecessor’s wage and hour practices for the three-year period that precedes acquisition. Such employers should also take into consideration that owners, officers, and other supervisory personnel may be personally liable for violations under the FLSA.

For more information about the impact of Thompson 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.

NJ Federal Court Rules Pension Plan Established by Church-Controlled Hospital Not an ERISA-Exempt Church Plan

On March 31, 2014 the U.S. District Court in New Jersey held that a defined benefit pension plan established by St. Peter’s Healthcare System was not a church plan exempt under ERISA despite the fact that St. Peter’s is controlled by and associated with the Roman Catholic Church and its employees are considered employees of the Roman Catholic Church. Kaplan v. St. Peter’s Healthcare Sys., 2014 U.S. Dist. LEXIS 44963.

The suit arose from a claim by a former St. Peter’s employee that the pension plan was under-funded to the tune of $70 million. St. Peter’s moved to dismiss the complaint on the grounds of lack of subject matter jurisdiction claiming that the pension plan is an ERISA-exempt church plan. The Court denied St. Peter’s motion and found that the plan did not qualify as an ERISA-exempt church plan.

The Court focused its analysis on the plain meaning of ERISA’s church plan exemption and held that “Congress has explicitly provided two ways to fall within the church plan exemption: (1) a plan established and maintained by a church, or (2) a plan established by a church and maintained by a tax-exempt organization, the principal purpose or function of which is the administration or funding of the plan, that is either controlled by or associated with the church.” The Court held that St. Peter’s satisfied neither of these requirements because, while St. Peter’s sponsored the plan and is controlled by and associated with the Roman Catholic Church, the plan was not established by the Church in the first instance and therefore is not an ERISA-exempt church plan. Judge Shipp relied on a recent decision by a federal court in California which found that ERISA “requires that a church establish a church plan …[defendant’s] effort to expand the scope of the church plan exemption to any organization maintained by a church-associated organization stretches the statutory text beyond its logical ends.” The Court declined to defer to an IRS Ruling that St. Peter’s plan was an ERISA-exempt church plan.

Sponsors of defined benefit pension plans, especially those plans that converted to church plan status, should review the status of these plans to confirm that they comply with ERISA and the “established by a church” requirement. If you have any questions or for more information about this decision or ERISA and its impact on your organization or your employees’ benefit plans, please contact Patrick W. McGovern, Esq., pmcgovern@genovaburns.com or Gina M. Schneider, Esq., gmschneider@genovaburns.com in the Firm’s Employee Benefits Practice Group.

Northwestern University Scholarship Football Players Receive the Right to Organize

Region 13 of the National Labor Relations Board delivered a Final Decision and Direction of Election in the closely-watched case concerning Northwestern University’s football players’ attempt to unionize.   In Northwestern University v. College Athletes Players Association (“CAPA”), the NLRB ruled that those football players who currently are recipients of the grant-in-aid scholarships and who have not exhausted their four-year NCAA eligibility will be eligible to vote in the election to name CAPA as their bargaining representative for collective bargaining purposes.  The NLRB excluded football players who are not receiving scholarships as it found such players were not “employees” under the Act.  This decision has the potential to alter the landscape of the collegiate athletics system with lasting impact on future university athletic department recruiting and programs.

The Decision

In its decision, the Board analyzed the process of player recruitment, the structure of the training program, the athletic and academic commitments required and the responsibilities the athletic program demanded of its players.

The Board found that the 85 players receiving grant-in-aid scholarships in the football program fall within the common law definition of employee.  Under NLRB v. Town & Country Electric, an employee is “a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment.”    526 U.S. 85, 95 (1995).  The Board concluded that the grant-in-aid scholarship football players perform services for the benefit of the Employer and receive compensation for these services.  The players helped generate approximately $235 million in revenue from 2003-2012 for Northwestern, as well as the intangible benefit of bolstering the University’s reputation among donors and possible recruits.  The Board found that the grant-in-aid scholarships were compensation in exchange for the athletic services the players performed throughout the year.  The Board further found that the demanding control by the University in order to maintain the scholarship evidenced an employment relationship.  The players were required to adhere to strict schedules throughout the year, plan their academic life around the demands of the football season, commit a large amount of time towards their athletic endeavors, and were subject to monitoring by their coaches in both their athletic and personal lives.  The rules and regulations imposed by the University had to be followed or the players risk losing their scholarships.

Importantly, the Board rejected Northwestern’s argument that Brown University’s finding that graduate students were not employees was controlling in this case.  The Board concluded that Brown University did not apply because the football players’ duties were separate and apart from their academic studies, unlike graduate students.  The Board further distinguished Brown by finding that scholarship football players do not receive academic credit for their participation in the football team and that participation in the football program is not a requirement in receiving their educational degree.  Unlike the graduate students in Brown University, football players were not supervised by faculty and subject to their control in academic research and education, but were rather overseen by the football coaches, who are not members of the faculty.

The Board similarly rejected Northwestern’s contention that the grant-in-aid scholarship players were temporary employees.  While temporary employees are, in fact, ineligible to vote for collective bargaining representation, the Board emphasizes that individuals will not found to be temporary employees solely because their employment term has a definitive termination date.

Implications

Northwestern University will most likely appeal the Regional Director’s decision.  However, should the football players be permitted to unionize, this could have a major effect on college athletics.  The decision may well change the way in which institutions design their athletic programs.  The decision also has the potential to pave the way for other paid or grant-in-aid students to consider unionization.

If you have any questions or for more information about this decision, please contact James J. McGovern, Esq., jmcgovern@genovaburns.com or Allison Gotfried, agotfried@genovaburns.com.

 

New Jersey DOL Issues New Unemployment Compensation and Temporary Disability Benefits Poster

In February 2014, the New Jersey Department of Labor updated its Unemployment Compensation and Temporary Disability Benefits poster. Employers should replace their current posters immediately. This poster notifies employees of their eligibility for such payments and provides instructions as to how to apply for benefits. The process for obtaining state disability applications has been updated on this new poster.

The NJDOL has made the new Unemployment Compensation and Temporary Disability Benefits poster available on its website at http://lwd.dol.state.nj.us/labor/forms_pdfs/EmployerPosterPacket/PR-1.pdf.

If you have any questions or for more information about the new poster and its impact on your company’s Unemployment Insurance and Temporary Disability Benefits policies, please contact James J. McGovern, Esq., jmcgovern@genovaburns.com or Allison Gotfried, agotfried@genovaburns.com.