Welcome to The Garden State: NJ’s Law Against Discrimination Grows to Protect Non-Resident Employees

A New Jersey appellate court recently held that a non-resident employee who telecommuted to her New Jersey employer from her home in Massachusetts may be covered by the New Jersey Law Against Discrimination (NJLAD).

Facts

The employer, Legal Cost Control, Inc. (LCC), was a corporation located in Haddonfield, New Jersey.  The employee, Susan Trevejo, lived in Massachusetts, paid property taxes in Massachusetts, and held a Massachusetts driver’s license.  She never lived in New Jersey, and she never worked in LCC’s New Jersey office.  Trevejo received health insurance benefits from LCC’s insurance provider, Amerihealth New Jersey, but the plan did not condition coverage on New Jersey residency.  Trevejo’s sole connection to New Jersey was using a company-issued computer to remotely connect to LCC’s network and a company-issued phone to engage in conference calls.  After twelve years with the company, LCC terminated Trevejo’s employment.  In turn, she filed a lawsuit alleging age discrimination in violation of the NJLAD.

Lower Court’s Decision

LCC moved to dismiss the case, arguing that Trevejo was not an “inhabitant” of New Jersey, and thus, could not pursue a claim under NJLAD.  The trial court allowed for limited discovery over whether Trevejo was an “inhabitant” of New Jersey; the parties were barred from engaging in discovery over Trevejo’s other connections to the state.  The trial court ultimately dismissed the case, finding that Trevejo was not an “inhabitant” of New Jersey covered by NJLAD.

Appellate Court’s Decision

Trevejo appealed, arguing that the trial court overly restricted discovery and that she needed to engage in discovery regarding the nature and substance of her daily “virtual” connection to LCC’s New Jersey office.  The Appellate Division agreed, reversing the trial court’s decision and sending the case back to the trial court for more discovery.

In deciding that NJLAD’s coverage is not limited to inhabitants of New Jersey, the Appellate Division relied on the text of NJLAD itself.  The statute expressly prohibits discrimination against “any individual” and repeatedly uses the term “person” to identify who is protected from discrimination.  The term “person” is used throughout the statute, whereas the word “inhabitant” appears only in the legislation’s preamble.  Accordingly, the court concluded that NJLAD’s coverage is not limited to inhabitants of New Jersey.  This was, as the Appellate Division reasoned, consistent with the overarching goal and strong public policy behind NJLAD, to eradicate discrimination from the workplace entirely.  The trial court’s restricting discovery to whether Trevejo was a New Jersey inhabitant could not be reconciled with that principle.

Rather than Trevejo’s place of residency, the Appellate Division directed that discovery focus on where the discriminatory conduct took place and whether Trevejo was employed in New Jersey or Massachusetts.  The scope of discovery should extend to:

  • Where plaintiff’s co-employees worked;
  • Whether those co-employees worked from home;
  • The nature of the software used by plaintiff and other LCC employees to conduct business on behalf of LCC;
  • The location of the server used to connect plaintiff and other employees to LCC’s office in New Jersey;
  • The location of the internet service provider allowing plaintiff and other employees to connect to LCC’s office in New Jersey;
  • The individual or individuals who made the decision to terminate plaintiff and the basis for the decision; and
  • Any other issues relevant to plaintiff’s contacts with New Jersey and her work for LLC that may demonstrate her entitlement to protection under the NJLAD.

Facts Matter

The New Jersey Appellate Division has consistently applied this type of fact-sensitive approach to deciding whether non-resident telecommuters are covered by New Jersey laws, even outside the discrimination context.  But this fact-sensitive approach often produces seemingly inconsistent results.  For example, in one case, an employee who telecommuted to her New Jersey employer from her home in North Carolina was denied New Jersey unemployment benefits based on a finding that she performed all of her work in North Carolina.  This seems to contradict the holding in Trevejo’s case, where the court was unconvinced by the fact that Trevejo performed all of her work in Massachusetts.  As if you were not already confused enough by the muddle of laws and regulations governing the workplace, this case illustrates the importance of facts, rather than bright line rules, in making decisions about your employees.

Bottom Line

Beware that all of your employees, regardless of where they perform their work, may be entitled to claim protection from discrimination under NJLAD.  The issue will come down to a factual inquiry over whether they have sufficient contacts with the state.  Be mindful that NJLAD is one of the most employee-protective state anti-discrimination statutes in the country.  In light of that fact, and the absence of any bright line rule regarding NJLAD’s applicability to out-of-state employees, you may want to consider executing, where available by law, a written agreement with your non-resident telecommuters delineating which state’s law applies in the event of a legal dispute (“choice of law” clause), and in which court those disputes are to be filed (“forum selection” clause).

For more information about the potential impacts of this ruling or what steps your company can take to effectively prevent and address complaints of discrimination, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

UPDATED: New Laws in New York State & City on Workplace Sexual Harassment

Governor Andrew Cuomo recently signed several new laws imposing requirements on employers in New York State regarding sexual harassment.  New York City employers will be subject to additional requirements, as Mayor Bill de Blasio just signed a package of bills, collectively called the “Stop Sexual Harassment in New York City Act.”.  New York State and City employers should prepare for these changes and their varying effective dates summarized below.

New York State

  • Employers Cannot Mandate Arbitration of Sexual Harassment Claims – Employers can no longer mandate that employees arbitrate sexual harassment claims unless that prohibition is inconsistent with (a) federal law or (b) a collective bargaining agreement. This provision is sure to be challenged based on preemption under the Federal Arbitration Act, however, unless or until a court rules otherwise, the law will be effective as of July 11, 2018.
  • Most Nondisclosure Agreements are Banned from Sexual Harassment Settlements Unless Sufficient Consent and Notice – Employers who settle sexual harassment claims can no longer include provisions in their settlement agreements preventing the disclosure of facts underlying the claims, unless the complaining party consents to it. He/she must be given 21 days to consider the nondisclosure language and 7 days thereafter to revoke it.  He/she cannot waive this right.  This law takes effect on July 11, 2018.
  • Employers Must Adopt a Policy and Provide Annual Training on Sexual Harassment – The state will establish a model sexual harassment policy and training program that will address specific topics, including information related to what laws workplace sexual harassment violates, remedies available to victims, complaint and investigation procedures, and the additional obligations imposed on supervisory employees to address sexual harassment. Effective October 9, 2018, employers will be required to adopt a policy that meets or exceeds the model policy’s standards, distribute that policy in writing to all of its employees, and implement an annual training program that meets or exceeds the model training program’s standards.  Effective January 1, 2019, most companies bidding for a state contract will be required to accompany their bids with a certification stating that they have a written policy and training program that meets or exceeds the models.
  • Employers Are Now Liable to Non-Employees for Sexual Harassment – Employers will be held liable for sexual harassment committed against contractors, subcontractors, vendors, and others providing services under a contract, where it can be shown that the employer (a) knew or should have known that such non-employee was being harassed but did nothing about it, and (b) has sufficient control and “legal responsibility” with respect to the conduct of the harasser. This law takes effect immediately.
  • Government Employees Must Refund any Taxpayer-Funded Payouts for Sexual Harassment Awards – Effective immediately, employees of the state, political subdivisions or other public entities (including elected officials), who have been found personally liable for sexual harassment in the workplace, must refund to the state/other public entity any payments it made to the plaintiff on that employee’s behalf, within 90 days.

New York City

  • NYC’s Anti-Harassment Statute Will Apply to All Employers – The NYC Human Rights Law (“NYCHRL”), which governs harassment in the workplace, previously applied to employers with 4 or more employees. Effective immediately, the NYCHRL applies to all employers, regardless of size, with respect to liability for sexual harassment.
  • Sexual Harassment Claims Will be Subject to a Three-Year Statute of Limitations – In its prior form, the NYCHRL imposed a one-year statute of limitations on claims of discrimination and harassment. Effective immediately, that limitations period is extended to three years for claims of gender-based harassment.
  • NYC Employers Must Provide Annual Sexual Harassment Training – The City will establish a model sexual harassment training program designed to explain what sexual harassment is and what laws it violates, and inform employees about the complaint processes and legal remedies available to them, that retaliation is prohibited, and the heightened duties imposed on supervisory employees to address sexual harassment. Effective April 1, 2019, private City employers with 15 or more employees will be required to provide all employees annual sexual harassment training that meets or exceeds the model program’s standards.  New employees must receive the training within 90 days of hire.  The program must be interactive, but it need not be live.  Employers will be required to maintain records of trainings, including acknowledgement forms.
  • NYC Employers Must Hang a Poster & Distribute a Hand-Out Regarding Sexual Harassment – The City will create a poster and hand-out setting forth employees’ rights regarding workplace sexual harassment. Effective September 6, 2018, all employers will be required to mount the poster in a conspicuous place and distribute the handout to all employees.  The poster must be at least 8.5 by 14 inches in size, using at least 12-point font, and posted in both English and Spanish.

Employer To-Do List

The following is a non-exhaustive list of some action items that New York State and City employers are strongly encouraged to follow, in consultation with legal counsel:

  • Review and revise your existing policies, practices, procedures, and training programs, as well as employment contracts, severance agreements, and other contracts to ensure compliance with these new state and city laws.
  • Even if your existing harassment policies comply with the new laws, best practice suggests that you redistribute them.
  • Now that contractors and other non-employees are protected from sexual harassment, you should consider providing training to them if you have not done so already.
  • Do not blindly adopt the state and/or city’s model policies or training programs. These are designed to provide minimum thresholds that you should adjust and build upon based upon the needs of your company.

For more information on what your company can do to ensure compliance with the many new sexual harassment laws imposed on New York State and New York City employers, please contact Harris S. Freier, Esq., Partner in the firm’s Employment Litigation Practice Group, at hfreier@nullgenovaburns.com, or Dina M. Mastellone, Esq., Partner and Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

New Laws in New York State & City on Workplace Sexual Harassment

Governor Andrew Cuomo recently signed several new laws imposing requirements on employers in New York State regarding sexual harassment.  New York City employers will be subject to additional requirements, as the city council just passed a package of bills, collectively called the “Stop Sexual Harassment in New York City Act,” which Mayor Bill de Blasio is expected to sign.  New York State and City employers should prepare for these changes and their varying effective dates summarized below.

New York State

  • Employers Cannot Mandate Arbitration of Sexual Harassment Claims – Employers can no longer mandate that employees arbitrate sexual harassment claims unless that prohibition is inconsistent with (a) federal law or (b) a collective bargaining agreement. This provision is sure to be challenged based on preemption under the Federal Arbitration Act, however, unless or until a court rules otherwise, the law will be effective as of July 11, 2018.
  • Most Nondisclosure Agreements are Banned from Sexual Harassment Settlements Unless Sufficient Consent and Notice – Employers who settle sexual harassment claims can no longer include provisions in their settlement agreements preventing the disclosure of facts underlying the claims, unless the complaining party consents to it. He/she must be given 21 days to consider the nondisclosure language and 7 days thereafter to revoke it.  He/she cannot waive this right.  This law takes effect on July 11, 2018.
  • Employers Must Adopt a Policy and Provide Annual Training on Sexual Harassment – The state will establish a model sexual harassment policy and training program that will address specific topics, including information related to what laws workplace sexual harassment violates, remedies available to victims, complaint and investigation procedures, and the additional obligations imposed on supervisory employees to address sexual harassment. Effective October 9, 2018, employers will be required to adopt a policy that meets or exceeds the model policy’s standards, distribute that policy in writing to all of its employees, and implement an annual training program that meets or exceeds the model training program’s standards.  Effective January 1, 2019, most companies bidding for a state contract will be required to accompany their bids with a certification stating that they have a written policy and training program that meets or exceeds the models.
  • Employers Are Now Liable to Non-Employees for Sexual Harassment – Employers will be held liable for sexual harassment committed against contractors, subcontractors, vendors, and others providing services under a contract, where it can be shown that the employer (a) knew or should have known that such non-employee was being harassed but did nothing about it, and (b) has sufficient control and “legal responsibility” with respect to the conduct of the harasser. This law takes effect immediately.
  • Government Employees Must Refund any Taxpayer-Funded Payouts for Sexual Harassment Awards – Effective immediately, employees of the state, political subdivisions or other public entities (including elected officials), who have been found personally liable for sexual harassment in the workplace, must refund to the state/other public entity any payments it made to the plaintiff on that employee’s behalf, within 90 days.

New York City

  • NYC’s Anti-Harassment Statute Will Apply to All Employers – The NYC Human Rights Law (“NYCHRL”), which governs harassment in the workplace, currently applies to employers with 4 or more employees. Effective immediately following Mayor de Blasio’s signature, the NYCHRL will apply to all employers, regardless of size, with respect to liability for sexual harassment.
  • Sexual Harassment Claims Will be Subject to a Three-Year Statute of Limitations – In its current form, the NYCHRL imposes a one-year statute of limitations on claims of discrimination and harassment. Effective immediately upon signature, that limitations period will be extended to three years for claims of gender-based harassment.
  • NYC Employers Must Provide Annual Sexual Harassment Training – The City will establish a model sexual harassment training program designed to explain what sexual harassment is and what laws it violates, and inform employees about the complaint processes and legal remedies available to them, that retaliation is prohibited, and the heightened duties imposed on supervisory employees to address sexual harassment. Effective April 1, 2019, private City employers with 15 or more employees will be required to provide all employees annual sexual harassment training that meets or exceeds the model program’s standards.  New employees must receive the training within 90 days of hire.  The program must be interactive, but it need not be live.  Employers will be required to maintain records of trainings, including acknowledgement forms.
  • NYC Employers Must Hang a Poster & Distribute a Hand-Out Regarding Sexual Harassment – The City will create a poster and hand-out setting forth employees’ rights regarding workplace sexual harassment. Effective 120 days after Mayor de Blasio’s signature, all employers will be required to mount the poster in a conspicuous place and distribute the handout to all employees.  The poster must be at least 8.5 by 14 inches in size, using at least 12-point font, and posted in both English and Spanish.

Employer To-Do List

The following is a non-exhaustive list of some action items that New York State and City employers are strongly encouraged to follow, in consultation with legal counsel:

  • Review and revise your existing policies, practices, procedures, and training programs, as well as employment contracts, severance agreements, and other contracts to ensure compliance with these new state and city laws.
  • Even if your existing harassment policies comply with the new laws, best practice suggests that you redistribute them.
  • Now that contractors and other non-employees are protected from sexual harassment, you should consider providing training to them if you have not done so already.
  • Do not blindly adopt the state and/or city’s model policies or training programs. These are designed to provide minimum thresholds that you should adjust and build upon based upon the needs of your company.

For more information on what your company can do to ensure compliance with the many new sexual harassment laws imposed on New York State and New York City employers, please contact Harris S. Freier, Esq. of the firm’s Employment Litigation Practice Group, at hfreier@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

Second Circuit Issues Landmark Decision that Title VII Prohibits Sexual Orientation Discrimination

Overruling its own precedent, the United States Court of Appeals for the Second Circuit became the second federal appeals court to hold that Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of sexual orientation.

Zarda v. Altitude Express, Inc., decided on February 26, 2018, arose from the claims of a Long Island sky-diving instructor, Donald Zarda.  Zarda was fired after revealing to a female client, whose boyfriend then revealed to Zarda’s boss, that Zarda was gay.  Zarda alleged that his termination was discriminatory on the basis of his sexual orientation and sex in violation of Title VII, whereas the company attributed it to his behavior.  Title VII expressly prohibits workplace discrimination “because of . . . sex.”  The Second Circuit had previously declined to recognize that sexual orientation is inherently a sex-based consideration and, thus, it held that sexual orientation discrimination claims were not cognizable under Title VII.  Applying that precedent, the federal trial court dismissed Zarda’s case on summary judgment, concluding that Zarda had failed to show he had been discriminated against on the basis of his sex and declining to recognize sexual orientation discrimination as a cognizable claim under Title VII.  Zarda appealed, and the Second Circuit affirmed.  Thereafter, the Second Circuit granted rehearing en banc, which is a mechanism allowing judges to rehear a case upon a majority vote.  This is significant because en banc review rarely happens and is often saved for cases that present a “question of exceptional importance.”

Years after the Second Circuit originally ruled that sexual orientation is not covered by Title VII, the U.S. Equal Employment Opportunity Commission and the Seventh Circuit oppositely held that discrimination on the basis of sexual orientation is a form of sex discrimination barred by Title VII.  Emphasizing the evolving nature of Title VII, the Second Circuit in Zarda overruled its prior caselaw to hold that Title VII prohibits discrimination on the basis of sexual orientation as discrimination “because of . . . sex.”

In dispensing with its prior rulings, the Second Circuit reasoned that sexual orientation is defined by one’s sex in relation to the sex of those to whom he/she is attracted.  Discriminating against an employee because he/she is homosexual means discriminating against him/her because of a) his/her sex, and b) his/her sexual attraction to those of the same sex.  Thus, “because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.”

The Second Circuit disagreed with the United States Justice Department, which argued in a friend-of-the court brief, that Title VII does not cover sexual orientation discrimination.

For now, the ruling that Title VII bars employers from discriminating based on sexual orientation applies to those in the Second Circuit, which includes New York, Connecticut, and Vermont.  However, this decision sharpens the divide among courts, setting the stage for a potential fight in the United States Supreme Court.  The Supreme Court could reverse the Second Circuit, or it could affirm, thereby extending Title VII’s prohibition on sexual orientation discrimination to the rest of the country.

For more information about the potential impacts of this Second Circuit ruling or what steps your company can take to effectively prevent and address complaints of sexual orientation discrimination, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

New York City Employers Will Soon Be Required To Approve Work Schedule Changes At Their Employees’ Request

On December 19, 2017, the New York City Council passed a bill requiring employers to grant employee requests for “temporary changes” to work schedules for “personal events.”  This bill takes effect on July 18, 2018.

What qualifies as a “personal event” triggering a mandatory schedule change? – “Personal events” requiring a schedule change include:

  • When the employee is a caregiver who provides direct and ongoing care to a “care recipient,” and needs a temporary schedule change to provide this care. A “care recipient” under the bill is defined as a minor child or a disabled family or household member who relies on the employee for medical care or to meet the needs of daily living;
  • When the employee needs the temporary schedule change to attend a legal proceeding or a hearing for government assistance benefits, to which the employee, the employee’s family member or a “care recipient” is a party; or
  • Circumstances that qualify for sick time use under the New York City’s Earned Sick Time Act.

How many “temporary changes” are employees entitled to? – Eligible employees are entitled to two “temporary changes” to their work schedules in a calendar year, for up to one business day per request.  The employer may allow the employee to use two business days for one request, in which case it need not grant a second request.

What constitutes a “temporary change”? – A “temporary change” is defined as “a limited alteration in the hours or times that or locations where an employee is expected to work.”  A temporary change can include paid or unpaid time off, working from home, or changing work hours.

Who is eligible? – All non-government employees who work full time or part time within New York City for 80 or more hours per calendar year, and who have worked for the employer for more than 120 days.

Who is not eligible?

  • Employees covered by a collective bargaining agreement that expressly waives the provisions of the bill and addresses temporary work schedule changes; and/or
  • Certain employees whose jobs and whose employer’s primary business involves the development, creation or distribution of movies, TV programs or live entertainment presentations. Exceptions to this category apply.

What are the employee’s notice requirements? – To properly request a “temporary change” to his or her work schedule, an eligible employee must:

  • Notify his employer or direct supervisor immediately upon learning of the employee’s need for the change;
  • Propose a temporary change, unless the employee seeks unpaid leave; and
  • Reduce his notification and proposal (if required) to writing no later than the second business day after he returns to work. The employer may permit the employee to satisfy this writing requirement by any electronic means (g., email or text message) commonly used by employees to request and manage time off or schedule changes.

What are the employer’s obligations? The employer must respond immediately to a request for a temporary schedule change by indicating:

  • Whether the employer will grant the proposed temporary change, or, alternatively, will grant the change as unpaid leave;
  • The reason for denying the request; and
  • How many temporary change requests and business days to fulfill such requests the employee has left in the calendar year.

The employer’s response must be reduced to writing no later than 14 days following the request.

How does NYC’s temporary work schedule change bill interact with the New York City Earned Sick Time Act? – The New York City Earned Sick Time Act generally provides employees up to 40 hours of paid sick leave per calendar year.  Employees who are eligible for a temporary work schedule change under this bill need not exhaust their earned paid sick time before requesting such changes. In addition, any unpaid leave granted for personal events under this bill does not count toward the obligation to provide earned paid sick leave pursuant to the Earned Sick Time Act.

For more information about how this new bill affects your company or how your company can effectively implement it into its existing practices and procedures, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

NYS Attorney General Issues Guidance on Preventing & Correcting Sexual Harassment in the Workplace

On December 6, 2017, amidst the recent barrage of publicized sexual harassment and sexual assault allegations made against various news organizations, politicians, and Hollywood elite, New York State Attorney General Eric T. Schneiderman released “Know Your Rights” guidance on sexual harassment in the workplace.  The purpose of the guidance is to inform New Yorkers about the laws that protect them from sexual harassment at work and to provide victims of sexual harassment with information on the appropriate agencies to consult should they seek to file a complaint or take legal action, along with helplines for further support.  The guidance highlights the following:

Sexual Harassment Defined – Sexual harassment occurs when unwelcome conduct of a sexual nature is used as the basis for making employment decisions, like hiring or firing, or is so frequent or severe that it creates an intimidating, hostile, or offensive work environment.

  • The conduct can be verbal, visual and/or physical, such as unsolicited sexual advances, sexually offensive remarks or jokes, comments about a person’s gender or sexual orientation or preferences, unwanted touching, and sexually suggestive gestures.
  • Sexual harassment can be committed by a supervisor, co-worker, or third-party vendor/customer/client who comes into the workplace.
  • Protections apply to both men and women, and same sex harassment is prohibited, regardless of sexual orientation.

Avenues of Relief – Laws prohibiting sexual harassment include Title VII of the Civil Rights Act (“Title VII”), the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”).  The scope and procedure for filing complaints differ under each law.

  • Those who feel they have been the victim of, or who have observed sexual harassment should first report it to his/her employer pursuant to the employer’s internal policies. Individuals may also consult an attorney to determine whether to file a complaint with a government agency or a lawsuit in state or federal court.
  • Agencies who handle sexual harassment complaints include the New York State Office of the Attorney General Civil Rights Bureau (“OAG”), the New York State Division of Human Rights (“NYSDHR”), and the Equal Employment Opportunity Commission (“EEOC”).
    • The OAG represents the People of New York (not the individual complaining party) when it discovers evidence of a pattern, practice, or policy of sexual harassment.
    • The NYSHRL allows individuals to file a complaint against employers of any size with the NYSDHR or proceed directly to court.
    • Sexual harassment complaints under Title VII may only be brought against employers with more than 15 employees and must be filed first with the EEOC before commencing a lawsuit.

No Retaliation – The law also prohibits retaliation against anyone who has filed a complaint about sexual harassment in the workplace.

Criminal Liability – Sexual harassment may constitute a crime, under theories of stalking and/or assault.

Sexual harassment in the workplace is a serious problem that affects many employees and organizations.  As stated by A.G. Schneiderman, “We all have a stake in preventing [sexual harassment] and stopping it when it happens.”  Addressing sexual harassment in the workplace provides a benefit to employees and employers alike.  Employees have a right to feel secure in the workplace, and employers can have liability in situations where harassing behaviors is permitted whether by supervisors, subordinates, peers, customers, vendors, and contractors. Employers can reduce the risks of claims of sexual harassment in the workplace by arming its employees with tools to deal with inappropriate workplace behavior and sexual harassment allegations.  This includes a well-crafted sexual harassment prevention and complaint policy and routine training for managers and supervisors.

For more information about how anti-harassment laws affect your company or how your company can effectively prevent and address complaints of sexual harassment, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

Be Ready For New York State’s Paid Family Leave Law, Effective January 1, 2018

Employers with employees in New York must prepare for New York State’s Paid Family Leave Benefits Law (“PFL”), which will provide job-protected, insurance-based, paid family leave to employees.  PFL goes into effect shortly, on January 1, 2018.

Overview of PFL Benefits

Under PFL, eligible employees will be entitled to:

  • Paid time off for one of three qualifying reasons – Eligible employees will be entitled to a certain amount of time off, during which they will receive a certain percentage of their wages.  However, weekly wages payable under the PFL are capped at one-half of New York State’s Average Weekly Wage, which is currently $1,305.92 (half of which is $652.96).  The program will be fully implemented over a 4-year phase-in schedule:
    • Starting on January 1, 2018, eligible employees will be entitled to take 8 weeks of leave while receiving 50% of their average weekly wages.
    • Starting January 1, 2019, eligible employees will be entitled to take 10 weeks of leave while receiving 55% of their average weekly wages.
    • Starting on January 1, 2020, employees will still only be entitled to take 10 weeks of leave, but will be afforded 60% of their average weekly wages.
    • Finally, starting on January 1, 2021, employees will be entitled to take 12 weeks of leave while receiving 67% of their average weekly wages.
  • Reinstatement – Upon returning to work, eligible employees must be restored to the position they held before taking leave, or to a comparable position with comparable benefits and pay.

Covered Employers

  • Private employers with one or more covered employee will be required to provide PFL benefits.
  • Public employers may opt in.
  • Covered employers whose employees are represented by a union and whose collective bargaining agreement provides paid family leave need only provide PFL benefits if the collective bargaining agreement’s benefits are not as favorable as those under PFL.

Eligible Employees

  • Full-time employees (those with a regular schedule of 20 or more hours per week) become eligible for PFL benefits after working for 26 weeks.
  • Part-time employees (those with a regular schedule of less than 20 hours per week) become eligible for PFL benefits after working for 175 days.

Qualifying Reasons to take Family Leave under PFL

Eligible employees may receive PFL benefits in the following three instances:

  1. To bond with a new child (including newly adopted and foster children);
  2. To care for a close relative with a serious health condition;
    • Close relatives include spouses, domestic partners, children, parents, parents-in-law, grandparents, and grandchildren
    • A serious health condition is an illness, injury, impairment, or physical or mental condition that involves a) inpatient care in a hospital, hospice, or residential health care facility; or b) continuing treatment or continuing supervision by a health care provider.
  3. To relieve family pressures created when a spouse, child, domestic partner or parent is on or has been called to active military duty, and the employee is eligible for time off under the military provisions of the federal Family Medical Leave Act.

Notably, an employee cannot receive PFL benefits to care for his or her own serious health condition or for his or her own qualifying military event.

Interplay with other Leave Benefits

  • Covered employers may permit employees to use sick or vacation leave for full pay, but may not require that employees use such leave.
  • Employees’ PFL leave must run concurrently with qualifying FMLA leave.  This means that employees cannot stack PFL and FMLA leave to take time that exceeds the leave entitlement under the PFL.  Employees cannot receive New York State disability benefits simultaneous with their receipt of PFL benefits.

Tips and Next  Steps for New York City Employers

  • Update the leave provisions of your company’s policies and/or handbooks – it’s required by the PFL!
  • Obtain paid family leave insurance coverage
  • Train your human resources personnel

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

New York City’s Salary Inquiry Ban Starts October 31, 2017

Starting October 31, 2017, New York City employers will be prohibited from inquiring about a job applicant’s salary history, or from relying on that salary history in determining an applicant’s prospective pay, unless the applicant voluntarily offers the information.

What New York City Employers Cannot Do

Under the salary inquiry law, employers cannot, during an in-person interview that takes place in New York City, or in any circumstances where the impact will be felt in New York City:

  • Communicate any question or statement to a job applicant, the applicant’s current or former employer, or a current or former employee who worked with the applicant, to obtain the applicant’s salary history;
  • Search public records to obtain an applicant’s salary history; and/or
  • Rely on an applicant’s salary history when making an offer of employment or deciding compensation, unless the applicant voluntarily and without prompting disclosed it.

What New York City Employers Can Do

New York City employers may consider and verify a job applicant’s salary history if:

  • The job applicant discloses the information voluntarily and without prompting;
  • Law specifically authorizes the disclosure or verification of salary history;
  • The position’s salary is determined by procedures in a collective bargaining agreement;
  • The applicant is a current employee applying for an internal transfer or promotion; and/or
  • A background check for non-salary related information inadvertently discloses salary history, provided, however, that the employer does not rely on that inadvertently disclosed salary history in determining the job applicant’s prospective salary.

The Scope of One’s “Salary History”

  • “Salary history” means current or prior wages, benefits or other compensation.
  • It does not include objective measures of the applicant’s history of productivity. Employers may ask about sales performance or other objective indicators of performance like volume or value, but cannot ask about how these figures translated into wages.
  • Employers may also discuss and consider the applicant’s salary and benefits expectations, including the amount of unvested equity and deferred compensation an applicant would forfeit from his or her current employer.

Consequences of Violating New York City’s Salary Inquiry Ban

The New York City Commission on Human Rights will investigate complaints and enforce the new law by imposing fines of up to $125,000 for unintentional violations, and up to $250,000 for intentional violations.

Tips and Next  Steps for New York City Employers

  • Update Your Company Policies, Job Application Materials, and Interview Guides
  • It is not enough to add a disclaimer that individuals in New York City or applying for jobs located in New York City need not answer questions related to salary history.
  • Develop a process for documenting when an applicant voluntarily discloses his/her salary history.
  • Train your Recruiting and Hiring Personnel
  • Develop a process for documenting the reasons for differentials in pay.

For questions on compliance with this new law 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.

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.

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.