New York City Bans Employer Inquiries Into Salary History

On May 4, 2017, New York City Mayor Bill DeBlasio signed a law amending the New York City Human Rights Law, barring all public and private New York City employers from asking job applicants about their prior wages and salary history.  The law will take effect on Tuesday, October 31, 2017. The new law makes it an unlawful, discriminatory practice for an employer to inquire about or rely upon the salary history of a job applicant to determine their salary amount during the hiring process.

The salary inquiry law bans New York City employers from:

  • Making an inquiry, either verbally or in writing, to an applicant and/or the applicant’s current or prior employer, to obtain the applicant’s salary history;
  • Searching public records for an applicant’s salary history; and/or
  • Relying on a job applicant’s salary history when making an offer of employment or extending an employment contract to the applicant.

Salary history is broadly defined in the bill as the applicant’s “current or prior wage, benefits or other compensation.”  However, salary history inquiries do not include inquiries into the objective measure of the applicant’s productivity, for example, through inquiries on revenue, sales, or production reports.  Further, employers may still discuss the applicant’s salary and benefits expectations, including the amount of unvested equity and deferred compensation an applicant would forfeit through resignation from his or her current employment.

The law contains several other exceptions to the prohibition on salary inquiries, which include the following:

  • Employers can consider and verify an applicant’s salary history if the applicant discloses the information voluntarily and without prompting;
  • Where federal, state, or local law specifically authorizes the disclosure or verification of salary history;
  • Where salary is determined by procedures in a collective bargaining agreement;
  • When current employees are transferred or promoted within the company; and
  • When a background check for non-salary related information inadvertently discloses salary history, provided the employer does not rely on that information in making an offer of employment.

The New York City’s Commission on Human Rights (NYCCHR) will be responsible for investigating complaints and enforcing the new law.  The NYCCHR will also have the authority to impose fines ranging from up to $125 for intentional violations and up to $250,000 for intentional malicious violations.

New York City employers must start to update their employment applications and train their recruiters and human resources personnel on the new requirements to ensure compliance by the October 31, 2017 deadline.  Employers may also be forced to limit the scope of their background checks and revise their notices under the Fair Credit Reporting Act.

For questions on this new law, background check laws, or other employment and hiring requirements, please contact Dina M. Mastellone, Esq., Chair of the firm’s Human Resource Training & Audit Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

New York Issues Regulations Implementing its Trailblazing Paid Family Leave Law

Last year, the New York State Legislature passed the country’s most wide-ranging paid family leave law, providing employees with wage replacement during time away from their job in order to bond with a child, care for a close relative with a serious health condition, or to help relieve family pressures when someone is called to active military service, commencing on January 1, 2018.  On February 22, 2017, New York State Governor Andrew M. Cuomo announced the filing of official regulations implementing New York’s Paid Family Leave Law.  The regulations provide important guidance to both employers and insurance carriers.

Covered Employers – Unlike the federal Family and Medical Leave Act (FMLA), which applies only to businesses with 50 or more employees, the New York paid family leave program is required for all private employers in New York.  Public employers may opt in.

Eligible Employees – Employees become eligible for paid family leave after working full-time for their employer for 26 weeks or part-time for 175 days.

Phase-In Schedule – Unlike the FMLA, which provides 12 weeks of unpaid leave to take care of one’s family member or oneself, New York’s family leave law provides paid leave.  The program starts on January 1, 2018 and will fully phase in over the course of 4 years.  For the first year of the program, employees will be entitled to 8 weeks of family leave and 50% of their average weekly wages.  Starting January 1, 2019, employees will be entitled to 10 weeks and 55% of their average weekly wages.  On January 1, 2020, employees will still only be entitled to 10 weeks, but will be afforded 60% of their average weekly wages.  Finally, starting January 1, 2021, employees will be entitled to 12 weeks and 67% of their average weekly wages.

Qualifying Reasons – Paid family leave will be available to eligible employees to care for a new child (including newly adopted and foster children) or a close relative with a serious health condition, or to relieve family pressures created when a family member is called to active military service.  This leave is not available, however, to care for an employee’s own serious health condition, which is available under the FMLA.

Required Documentation – Employees will be required to present certain documentation to justify requests for family leave.  Documentation may include a certification from a doctor treating an employee’s family member.  New parents will also need to present birth certificates, adoption papers, or foster placement letters.  Employees wishing to address military family needs must provide military duty papers.

Reemployment – Upon return to work, employees will be entitled to resume the same or a comparable job.  The paid family leave law also provides for a continuation of health care benefits while on leave.

Employers’ “To Do” List – There are several steps businesses must take now to ensure compliance with New York’s paid family leave law.  Employers must either purchase a paid family leave insurance policy or self-insure.  The program will be fully funded by employees’ payment of premiums through payroll deductions, which employers can begin taking in July of 2017 (for coverage beginning on January 1, 2018).  In addition, employers and/or carriers must adopt a method for employees to request paid family leave, either by using the official “Request for Paid Family Leave” form (currently form PFL-1) or another method that solicits the same information as that form.  Employers must also inform all employees in writing of their rights and obligations under the new law, and eligibility information must also be included in an Employee Handbook.  Governor Cuomo has also launched a new helpline (844) 337-6303 to answer questions and provide New Yorkers with more information about the new program.

For questions about New York State’s new paid family leave law, how it interacts with the FMLA, and how to develop a compliant paid family leave policy, please contact Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com or 973-533-0777.  Please visit our free Labor & Employment Blog at www.labor-law-blog.com to stay up-to-date on the latest news and legal developments affecting your workforce.

Your Credit is No Good Here: Philadelphia Becomes Latest Jurisdiction to Make It Unlawful to Use Credit Information in Employment

On June 7, 2016, Philadelphia Mayor Jim Kenney signed into law Philadelphia Bill No. 160072, which amends Philadelphia’s “Fair Practices Ordinance: Protections Against Unlawful Discrimination,” Chapter 9-1100, et seq. of the Philadelphia Code.  Employers comprised of one or more people are covered by the Ordinance, which, as amended, prohibits an employer from procuring, or seeking a person’s cooperation or consent to procure, credit information regarding an employee or applicant in connection with hiring, discharge, tenure, promotion, discipline or consideration of any other term, condition or privilege of employment.  Philadelphia’s Ordinance follows other several other jurisdictions, including New York City, which have enacted similar laws.

The ordinance does provide some exceptions to its anti-discrimination provisions, which guide businesses seeking to utilize credit information in lawful ways.  These exceptions include allowing business to seek credit information if the information must be obtained pursuant to state or federal law, or if the specific job the employer seeks employee credit information for:

  • requires the employee to be bonded under City, state, or federal law;
  • is supervisory or managerial in nature and involves setting the direction or policies of a business or a division, unit or similar part of a business;
  • involves significant financial responsibility to the employer, including the authority to make payments, transfer money, collect debts, or enter into contracts, but not including handling transactions in a retail setting;
  • requires access to financial information pertaining to customers, other employees, or the employer, other than information customarily provided in a retail transaction; or
  • requires access to confidential or proprietary information that derives substantial value from secrecy.

However, if an employer relies on the credit information either in whole or in part when considering adverse action in these instances, it must disclose its reliance thereon and provide the particular information upon which it relied. Employers are also required to give the employee or applicant a chance to explain the circumstances prior to making an adverse decision.

Employer Takeaways: 

  • Employers should evaluate their hiring and internal employment processes to ensure it complies with the new ordinance and with the federal Fair Credit Reporting Act (and local iterations).
  • If a credit check is done in certain circumstances, the employer should disclose its reliance and should allow for any explanation or clarification on behalf of the employee or applicant.

For more information regarding the potential impacts of this legislation or how your business can prepare to develop a compliant credit-check policy, please contact Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com or 973-533-0777.

 

Unhappily, Ever After: NJ Supreme Court Rules Divorcing Employees Protected by NJLAD

Unfortunately, not all marriages are happily ever after.  When divorce seems inevitable, losing your job as a result of a looming divorce is something no employee wants to worry about.  On June 21, 2016, the New Jersey Supreme Court in Smith v. Millville Rescue Squad (074685 (A-19-14) unanimously ruled that the New Jersey Law Against Discrimination’s (“NJLAD”) protection against discrimination on the basis of marital status also includes protection for divorced employees.  The New Jersey Supreme Court upheld the 2014 decision of the Appellate Division which concluded that the Millville Rescue Squad’s decision to terminate the plaintiff, Robert Smith, based on an assumption about his ability to work with his ex-wife was discriminatory.  In finding that the protections afforded by NJLAD’s marital status are not limited to the state of being single or married, the New Jersey Supreme Court effectively extended the reach of the NJLAD to include those who are separated, going through a divorce or divorced and recently widowed. Employers are prohibited from assuming, based on “invidious stereotypes,” that an employee will be disruptive or ineffective simply because of their marital status.

Smith, a 17-year veteran at Millville Rescue Squad (“MRS”), was allegedly fired when his supervisor heard the news about an impending separation from his then-wife and coworker.  Knowing the contentious nature of divorces, and worried about the spillover effect of a potential divorce involving two of his employees, Smith’s supervisor allegedly warned him that his continued employment with Millville was contingent on how the separation turned out.  After receiving confirmation from Smith that an amicable reconciliation was unlikely, Smith’s supervisor allegedly stated that he could not promise that it would not affect plaintiff’s job, as he believed Smith and his co-worker wife would certainly have an “ugly divorce”.  Smith was subsequently terminated for performance based on “company restricting” reasons.

Smith ultimately filed suit for wrongful termination and discrimination in violation of the NJLAD based on marital status, claiming the reasons given for his departure were discriminatory, improper and pretextual.  At oral argument before the New Jersey Supreme Court, the attorney for MRS conceded that although Smith’s supervisor’s comments were made in reference to the potential negative impact the divorce would have in the workplace, the disparaging comments were not signifying a bias against divorce itself.  Smith contended that the supervisor’s ugly comment demonstrated clear evidence of prejudice given his stellar performance record.

Notably, the New Jersey Supreme Court was careful to emphasize that the presumptive extension of NJLAD does not preclude employers from implementing and enforcing “anti-nepotism” policies in the workplace, confirming that the ability of an employer to restrict employees related by blood or marriage from working together has not been diminished.  Nonetheless, such policies must be enforced in a nondiscriminatory manner and in strict adherence the precedent set by NJLAD.  Additionally, the Court further clarified that employers are allowed to discipline employees based on performance and conduct, irrespective of their marital status so long as the reason for their discipline is not related to circumstances in his or her personal life.

As a result of this decision, employers must use caution when terminating an employee who is either in the process of getting divorced or is divorced.  The decision to terminate an employee cannot be based on an assumption about an employee’s inability to perform their job given for reasons related to their marital status.  The decision to terminate must only be based on actual workplace conduct or performance issues unrelated to marital status that has been clearly and routinely documented.

For more information on this decision and best practices regarding employee documentation and termination, please contact John C. Petrella, Esq., Director of the firm’s Employment Litigation Practice Group at jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq, Director of the firm’s Human Resources Practices Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

New York Passes Trailblazing Paid Family Leave Starting in 2018

On March 31, 2016, the New York State Legislature passed a bill that included the country’s most wide-ranging paid family leave law. Beginning in 2018, all full-time and part-time workers employed for 6 months in New York State will be eligible for a guaranteed, job-protected 12 weeks of paid family leave (PFL), regardless of the size of their company. PFL covers time off to bond with a new child (including adopted or foster children), or to care for a seriously ill child, spouse, domestic partner, parent, grandchild, grandparent, sibling, or the parent of a spouse or partner parent. In addition, employees may also use PFL to address certain legal, financial, and childcare issues related to the military service of a spouse, domestic partner, child, or parent.

Starting in 2018, employees will receive 8 weeks of paid leave at half their salaries. The leave will be funded by employees through payroll deductions, will gradually phase up over 4 years to 12 weeks and 67 percent of pay in 2021.  Employee payroll contributions will cost from .70 cents a week up to $1.40. After the full benefits kick in, workers will be eligible for just 67% of the state’s average weekly wage, or a maximum of $848 per week for the highest paid workers. The PFL requires no additional contributions from employers or taxpayers.  The legislation also guarantees job protection for all workers who take leave, even those who work for businesses with fewer than 50 employees, which are not subject to the federal Family and Medical Leave Act (FMLA).

Within the same budget bill, the New York legislature passed a $15 minimum wage increase along with a middle-class tax cut, public education and transportation investments, and other progressive measures. The emphasis on family comes following personal challenges faced by New York’s Governor Andrew Cuomo and the evolution of the fight for workers’ rights, shifting from just a women worker’s issue to a broad workforce concern.

New York now joins New Jersey, California and Rhode Island as the only states that offer paid family leave. Despite a national 12-week unpaid family leave policy, in the United States overall, about 40% of employees are not covered under the FMLA because their employers have fewer than 50 employees, they work too few hours, or they have been employed there for under a year.

For more information regarding the potential impacts of this legislation or how your business can prepare to develop a compliant paid family leave policy, please contact Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com or 973-533-0777.

The Individual Liability You Never Knew You Had: Second Circuit Rules HR Directors May Be Liable for FMLA Violations

HR Directors, Beware: Your role in terminating employees may expose you to individual liability under the Family and Medical Leave Act (FMLA).

In Graziadio v. Culinary Institute of America, et al., Graziadio, a Payroll Administrator, took a three-week leave pursuant to the FMLA to care for her son suffering from diabetes, followed immediately by a second leave to care for her other son, who had broken his leg.  After Graziadio submitted the required paperwork, she heard from neither her supervisor nor the HR Director. When Graziadio tried to return work, the Culinary Institute required “additional paperwork” to justify her absence.  Graziadio was notified that she had seven days to submit the paperwork but was not provided any specific detail about what paperwork was required.  Graziadio then retained an attorney. Prior to submitting the “additional paperwork”, Graziadio was informed that she was terminated on the basis of job abandonment and failure to comply with the FMLA. Graziadio thereafter brought suit alleging claims based on interference with her FMLA leave, retaliation and associational discrimination under the Americans with Disabilities Act (ADA) against the Culinary Institute, the HR Director and another supervisor.  The Southern District of New York granted the Culinary Institute’s motion for summary judgment and dismissed the complaint against the individual defendants.

On appeal, United States Court of Appeals for the Second Circuit held that the Culinary Institute’s HR Director can be individually liable under the FMLA.  Under the FMLA, an individual may be held liable if he or she is considered an “employer,” defined as “any person who acts, directly or indirectly in the interest of an employer to any of the employees of such employer.” Applying the “economic-reality test,” the Second Circuit held that individual liability can be found when the alleged employer (1) has the power to hire and fire employees; (2) supervises and controls the employee work schedules or conditions of employment; (3) determines the rate and method of payment; and (4) maintains employment records. The Second Circuit further noted that in the FMLA context, the economic reality of employment relationships exists if the putative employer controls in whole or in part the plaintiff’s rights under the FMLA.

While the Second Circuit found that the Culinary Institute’s Vice President held ultimate termination authority, it also found that its HR Director played a key role in terminating Graziadio.  The HR Director admitted Graziadio’s termination was a joint decision between her and the Culinary Institute’s Vice President. The Vice President also admitted to directing the HR Director to handle the dispute with Graziadio, rather than conducting an independent investigation. The Second Circuit found that sufficient evidence existed that the HR Director controlled Graziadio’s rights under the FMLA through her review of Graziadio’s paperwork, controlled Graziadio’s return ability to return to work and under what conditions, and was responsible for sending nearly all communication regarding Graziadio’s return to work after FMLA leave. Moreover, the HR Director instructed other human resources and payroll employees to refrain from communicating with Graziadio. Based on the totality of the facts, the Second Circuit found that the HR Director was an “employer” and could therefore be held individually liable for violations of the FMLA.

This decision serves as a chilling reminder that HR Directors, especially in the Second Circuit, need to be vigilant in complying with the requirements of the FMLA, mindful of their role in administering FMLA leave and tread cautiously when terminating employees.  Employers should also provide routine and updated training on FMLA leave administration and seek legal counsel prior to terminating employees who take FMLA leave in order to minimize exposure and the likelihood of individual liability.

For more information regarding FMLA procedures and best practices to mitigate liability, please contact Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com or 973-533-0777.

Plainfield Becomes New Jersey’s 12th Municipality to Require Paid Sick Leave

On March 14, 2016, the City of Plainfield became the 12th municipality in New Jersey to require private sector employers to provide paid sick leave to their employees. The paid sick leave, which ranges from 24 to 40 hours a year, can be used by employees for their own illness, to care for an ill family member, or to care for a child in the event of certain school closures.  The law will take effect on July 12, 2016.

Amount of Sick Leave

Plainfield’s Sick Leave Law sets forth different obligations for small and large employers.  Small employers, or those with less than 10 employees, must give a maximum of 24 hours of paid sick leave per year.  Large employers, or those with 10 or more employees, must provide a maximum of 40 hours of paid sick leave per year.  All employees accrue 1 hour of paid sick leave for every 30 hours worked each calendar year. Exceptions apply to child care, home health care, and food service workers, who are entitled to accrue a maximum of 40 hours of paid sick leave, despite the size of their employer.

Plainfield’s Paid Sick Leave Law entitles employees to carry over a maximum of 40 hours of paid sick leave from year to year.  Despite this carry-over provision, an employer can limit the use of paid sick leave to just 40 hours a year.  The Paid Sick Leave Law also contains two other significant provisions.  First, if an employer already offers a paid time off policy that is just as generous as the new law, an employer need not provide additional leave.  Second, the Paid Sick Leave Law does not require employers to pay employees for unused sick time upon termination of employment.

Eligibility For Paid Sick Leave

An employee must work 80 hours in a year to be eligible for paid sick leave.  As to employer size, which dictates the amount of sick leave an employee can accrue (either 24 or 40 hours), an employer must count all employees performing work for compensation on a full-time, part-time, or temporary basis. Employers with more than 10 employees, in total, will be considered a large employer. Those employers with a fluctuating number of employees should use the average number of employees employed during the preceding calendar year to determine size.

Use of Paid Sick Leave

Employees in Plainfield can use paid sick leave to care for themselves or a family member with a mental or physical illness, injury or health condition.  This care includes time off for medical diagnosis, treatment, or preventative medical care for a condition.  It may also be used for the closure of the employee’s place of work, or the employee’s child’s school or place of care, due to a public health emergency or to care for a family member who has been exposed to a communicable disease. An employee may use paid sick leave in increments as small as the employer’s payroll system uses to account for other absences.

If an employee seeks to use sick time, and the need for the use is foreseeable, an employer may require seven days advance notice from the employee.  If the need for paid sick leave is unforeseeable, an employer may require notice before the beginning of the employees’ shift, or in emergent circumstances, as soon as practicable.  After an absence, an employer may also require the employee to submit written confirmation that the time used was in fact used for the purposes authorized under the Paid Sick Leave Law.  Further, after three consecutive days or instances of sick leave, the employer may require documentation from a healthcare provider to confirm that the employee’s absence was necessary; the employer must not require details of the health condition or the nature of the illness.

Notice and Posting Requirements

Plainfield employers must provide written notice (available on the City’s website) to employees explaining their rights upon hire or, for current employees, as soon as practicable after July 12, 2016. Employers must also post the notice a conspicuous and accessible location at the work place.  The notices must be in English and in any language that is the first language of at least 10% of the employer’s workforce.

Fines and Penalties

Penalties include a fine not exceeding $750 for each day of the violation, and restitution in the amount of any paid sick time unlawfully withheld.  The Paid Sick Leave Law also prohibits employers from retaliating against any employee for taking leave or for interfering with the employee’s rights in connection with that law.

For more information regarding implementing Plainfield’s paid sick leave or how our business can develop a compliant paid sick leave policy, please Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com or 973-533-0777 or Nicole M. Amato, Esq., Associate, in the firm’s Human Resources Practices Group at nmamato@nullgenovaburns.com.

The EEOC’s New One-Way Street: Providing Position Statements to Charging Parties

Effective February 18, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) will uniformly allow employees bringing unlawful discrimination claims to gain access to the employer’s Position Statement submitted in response to the filing of a Charge of Discrimination. The disclosure will also retroactively apply to all requests for Position Statements made on or after January 1, 2016. Instead of verbally advising the Charging Party of the contents of the employer’s Position Statement, the EEOC will now provide the employer’s Position Statement and non-confidential attachments to Charging Parties upon request. The EEOC will also allow the Charging Party with an opportunity to respond within 20 days. The Charging Party’s response, however, will not be provided to the employer during the pendency of the investigation. The EEOC maintains that the new “Nationwide Procedures for Releasing Respondent Position Statements and Obtaining Responses from Charging Parties” are meant to unify approaches across all of its offices and will allow it to gain better information to strengthen its investigations.

The EEOC’s new policy also fails to assure employers that documents provided in support of their Position Statement will remain confidential.  The EEOC only advises that its “staff may redact confidential information as necessary prior to releasing the information to a Charging Party or her representative.” Thus, when submitting a Position Statement, employers must now carefully review whether or not any confidential proprietary business information is being produced. If so, employers should clearly mark exhibits as “confidential” to alert the EEOC that the document(s) should not be provided to the Charging Party. The EEOC also advises that employers should provide an explanation justifying the nature of the information contained in the attachments. The EEOC suggests that the following information should be segregated into separate attachments and designate them as follows:

  • Sensitive medical information (except for the Charging Party’s medical information).
  • Social Security Numbers.
  • Confidential commercial or confidential financial information.
  • Trade secrets information.
  • Non-relevant personally identifiable information of witnesses, comparators or third parties, for example, social security numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses, etc.
  • Any reference to charges filed against the employer by other charging parties.

The EEOC also warns that it will not accept “blanket or unsupported assertions of confidentiality.” In addition, the EEOC announced the implementation of a new Digital Charge System. Now, employers can upload Position Statements and attachments into the digital Charge file rather than faxing or mailing the documents to the EEOC.

For more information regarding the potential impacts of the EEOC’s new procedures and best practices on how to respond to a Charge of Discrimination, please contact Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com or 973-533-0777.

Proposed NJ Equal Pay Bill Could Lead to More Wage Gap Disputes if Passed

On February 4, 2016, a bill that would close the wage gap amongst women and men advanced out of the New Jersey Senate Labor Committee.  On average in New Jersey, studies have shown that women make 80.4 cents for each dollar a man earns, making it slightly more than the national average of 79 cents.  Further, the wage gap is larger for African-American and Latina women, who make 58.1 cents and 42.7 cents, respectively, for every dollar men earn. If signed into law, the new Equal Pay Bill (Senate Bill 992) will amend the New Jersey Law Against Discrimination (LAD).

What Will the New Equal Pay Law Require?

The two year statute of limitations for pay discrimination claims would restart with each unlawful paycheck that is issued by the employer. The new law would allow employees to file claims after termination if the employee was unaware that the pay disparity existed during the course of his or her employment. The proposed bill will also expand back pay awards for successful plaintiffs for the entire period of time if the violations continued to occur within the statute of limitations. Employers will also be prohibited from requiring employees or prospective employees to consent to the shortening of the statute of limitations period or to waive any violations of the law.

The Equal Pay Bill will also require employers to prove that any disparity in pay was based on a factor other than sex, such as a seniority system, a merit system, training, education or experience (including position title), or the quantity or quality of production.  Employers would also have to prove that reasonable application of these factors accounts for the entire wage differential, that the factors are job-related and consistent with job necessity, and that there were no other alternative business practices that would serve the same purposes without causing a difference in pay between female and male employees. Employers will also be prohibited from retaliating against employees for disclosing information about job title, occupational category, and rate of compensation of any employees or former employees.

What Should Employers Do Now?

Given the increased fervor to close the pay gap for women and minorities, the advancement of the new Equal Pay Bill and U.S. Equal Employment Opportunity Commission’s new requirements with regard to EEO-1 pay data reporting beginning in 2017, the time is now for employers to begin to take preemptive action to correct any discriminatory pay practices that may exist.

  • Employers should review and update their policies to ensure that employees are not discriminated against or retaliated against for discussing or questioning compensation.
  • Employers must ensure that their wage rates in all of their operations and facilities are similar and should document that their pay-related decisions are based on a legitimate, business necessity.
  • Managers and supervisors should also be trained to comply with the employer’s nondiscriminatory pay practices.
  • Employers who are engaging in pay disparity can certainly expect an increase in pay discrimination cases both under the LAD as well as cases brought by the EEOC for illegal pay practices.

For more information regarding the potential impacts of this legislation and how to implement nondiscriminatory pay practices, please contact Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com or 973-533-0777.

Refusing to Attend a Fitness-For-Duty Exam May Not Be Grounds For Termination under the ADA

On January 25, 2016, the New Jersey Appellate Division clarified the requirements set forth by the Americans with Disabilities Act (ADA) and the related guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC) as to when employers may require a medical examination or make inquiries of an employee as to whether such employee is an individual with a disability. In the case of In Re Paul Williams, the appellant-employee began working as a truck driver for the Department of Public Works for the Township of Lakewood in November 2003. In March 2013, the Township received an anonymous letter, purportedly written by another Public Works employee, expressing concern regarding Mr. Williams’s mental state and fear for his and his co-workers’ safety. More than eight months later, the Township scheduled psychological examinations and warned Mr. Williams that he would be subject to discipline should he fail to attend. Mr. Williams refused to attend and maintained that the examinations were not job-related and were thus illegal under the ADA. Under the ADA, examinations are lawful if they are “job-related and consistent with business necessity.”  The Township thereafter issued a Preliminary Notice of Disciplinary Action seeking his termination on the grounds of incompetency, inefficacy or failure to perform duties and other related charges. After the departmental hearing, the matter was appealed to the Office of Administrative Law.

The Administrative Law Judge (“ALJ”) found that there was not adequate evidence of the Township’s investigation into the anonymous letter to determine its veracity and thus agreed with Mr. Williams that the demand to attend the examinations was not related to work performance or any allegation of disruptive behavior. Moreover, the ALJ found that while Mr. Williams had failed to attend the exam, the request lacked a reasonable basis and thus, he could not be disciplined. The Township appealed the decision to the Civil Service Commission which reversed the ALJ’s determination.

On appeal, the Appellate Division affirmed the guidance set forth by EEOC which defines “job-related and consistent with business necessity” as instances where an employer reasonably believe (through direct observation or reliable information from credible sources) that an employee’s medical condition is impacting his or her work or that, because of the medical condition, the employee serves as a direct threat. As the EEOC points out, “[t]hen and only then, may the employer lawfully require the employee to undergo a psychological fitness-for-duty examination.” The EEOC’s guidance also provides that employers may not require an employee to take a medical exam when the information received is based in whole or in part on information learned from third party unless it is reliable and would suggest that the employee’s ability to perform job duties or that a direct threat exists as a result of the medical condition.

The Appellate Division affirmed the EEOC’s guidance and sided with Mr. Williams, noting that the Township waited over eight months to require psychological examinations based largely on “innuendo and rumor” contained in the anonymous letter. Thus, the Court found that the Township failed to meet its burden under the ADA of demonstrating the examinations were “job-related and consistent with business necessity” and that Mr. Williams was a direct threat to himself, others or property. The Appellate Division ordered Williams reinstated and back pay calculated for his time suspended.

Employer Takeaways:

  • Requiring employees to attend a fitness-for-duty examination must be “job-related and consistent with business necessity.” Employers must have objective evidence to support any required medical examination.
  • An employer must conduct a timely individualized assessment to determine the reliability of third party information regarding an employee’s medical condition: the relationship of the source to the employee, the seriousness of the medical conditional the possibility motivation of the third party providing the information, how the third party learned of the information, as well as other evidence that the employer has that bears on the reliability of the information.

For more information regarding compliance with accommodating disabilities, requiring independent medical examinations in compliance with the ADA, and EEOC’s guidance regarding same, please contact Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com or 973-533-0777.