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

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

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

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

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

NYC Fast Food Employers Beware – Strict “Fair Workweek” Laws Are Coming December 1st

On May 30, 2017, New York City Mayor Bill de Blasio signed a bill enacting four laws, together called the Fair Workweek legislation package, aimed at creating more predictable work schedules for NYC’s fast food workers.  The laws go into effect on December 1, 2017.

The first law requires that the fast food employer provide written notice to the fast food employee of the employee’s work schedule, including regular and on-call shifts, 14 days before the worker’s first day of the new schedule.  The written notice must be posted in a conspicuous place at the workplace that is readily accessible and visible to all employees and transmitted to each employee, including via e-mail, if e-mail is regularly used to communicate scheduling information. Modification to the employee’s work schedule within 14 days of the first day the schedule begins will result in employer penalties ranging from $10 to $75 depending on the nature and timing of the modification. The penalty is paid directly to the affected employee.

The second law mandates a minimum amount of time between a fast food worker’s shifts.  A fast food employer will no longer be permitted to schedule a worker for two shifts with fewer than 11 hours between the end of the first shift and the beginning of the second shift when the first shift ends the prior calendar day or spans two calendar days. However, the worker may request or consent in writing to working back-to-back shifts with fewer than 11 hours between. Absent such request or consent, the employer will be subject to a $100 penalty each time the employee works such back-to-back shifts.

The third law prohibits the fast food employer from hiring new employees, including subcontractors, to work regular or on-call shifts before exhausting its current workforce. Under the new law, when shifts become available, the fast food employer must post a notice in a conspicuous and accessible location for at least three calendar days, and transmit the notice directly to each employee that states, among other things, the number of shifts offered, the schedule of the shifts, whether the shifts will occur at the same time each week, the length of time required for coverage, and the number of workers required for coverage. Assuming these conditions are met, the employer may look to outside employment only if none of the current fast food employees accept the open shift.

Finally, the fourth law allows a fast food employee to authorize the employer to deduct voluntary contributions from the employee’s paycheck and to remit the payment directly to the employee’s designated non-profit organization. The deduction must be at least $6.00 and only once per pay period.

New York City follows San Francisco and Seattle as the third major city to enact Fair Work Week legislation. To understand how the Fair Workweek legislation package affects your fast food business and your employees, please contact Nicole L. Leitner, Esq., a member of the Wage & Hour Compliance Practice Group, at (973) 387-7897 or nleitner@nullnullgenovaburns.com, or John Vreeland, Esq., Chair of the Wage & Hour Compliance Practice Group and a Partner in the Labor Law Practice Group, at (973) 535-7118 or jvreeland@nullnullgenovaburns.com.

Third Circuit Stymies Employer’s Attempt to Force FLSA Overtime and Meal Break Pay Claims into Collectively Bargained Arbitration

Earlier this month, in a 2-1 decision, the Third Circuit Court of Appeals held that certified nursing assistants covered by a collective bargaining agreement are not required to arbitrate their FLSA claims before seeking court relief despite a mandatory arbitration clause in their labor agreement. The assistants claimed that their shift differentials should be included in the calculation of their overtime pay and challenged the deductions from their pay for meal breaks they did not take. The Third Circuit held that resolution of the assistants’ FLSA claims did not depend on an interpretation of language in the labor agreement and, therefore, the assistants were not required to arbitrate their claims. Jones v. SCO Silver Care Operations LLC (May 18, 2017).

The Court of Appeals explained that a court may compel arbitration of an FLSA claim when (1) the arbitration provision clearly and unmistakably waives the employee’s ability to vindicate federal statutory rights in court; and (2) the statute does not exclude arbitration as an appropriate forum. Here, the labor agreement’s grievance-arbitration provision did not expressly refer to FLSA or wage-hour claims, so there was no effective waiver of the right to go to court. Nonetheless, the Third Circuit recognized that even where a labor agreement’s arbitration clause fails to refer to the FLSA, the FLSA claimant may be forced to arbitrate disputes over an interpretation of a labor agreement if the FLSA claims are “inevitably intertwined with the interpretation or application” of the labor agreement.

On the issue of shift differentials, SCO Silver Care argued that the FLSA claim alleging miscalculation of the overtime rate consisted of a dispute over an implicit term of the labor agreement and whether shift differentials already include an overtime pay component. The Court rejected this argument and held that the overtime claim was governed by the FLSA, no analysis of the labor agreement’s treatment of shift differentials was required, and the Court should determine only whether the shift differentials at issue are remuneration that the FLSA requires to be included in the calculation of an employee’s regular hourly pay rate.

On the question whether the assistants’ meal breaks must be treated as hours worked, the employer argued that resolution of this issue depends on determining various meal break practices that occurred while the labor agreement was in effect and that this determination should be made by an arbitrator. The Court rejected this argument as well and found that the alleged meal break practices raised factual issues as to what work was performed during meal breaks and did not require a review of language in the labor agreement. The Court stated that the employer could not “transform these factual disputes inherent to any FLSA claim into disputes over provisions of the CBA subject to arbitration.”

If you would like to discuss how the Third Circuit’s decision affects your pay policies, arbitration clauses, wage and hour compliance program, and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Wage and Hour Compliance Practice Group at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

 

 

 

New District of New Jersey Case Shows Importance of Requiring Drivers to Form Corporate Entities in Misclassification Cases

Late last month, District of New Jersey Judge Robert B. Kugler partially granted FedEx Ground Package Systems Inc. (“FedEx”)’s Motion to Dismiss in a trucking misclassification case.  The court dismissed several claims but preserved the plaintiff’s wage claim.  One key in getting several of the claims dismissed for FedEx was that it had required the plaintiffs to form LLCs or corporations prior to contracting with them.

In Carrow v. FedEx Group Package Systems, Inc., No.: 16-3026, plaintiffs brought claims against FedEx arising under the New Jersey Consumer Fraud Act (“NJCFA”), misrepresentation, rescission, New Jersey Wage Payment Law (“NJWPL”), and breach of the covenant of good faith and fair dealing. The contract between the driver plaintiffs and FedEx classified the drivers as independent contractors and, for some agreements, first required the drivers to create a limited liability company or corporation and sign the agreement through the business entity.  Plaintiffs argued that despite language in the operating agreements, they were treated as employees as the agreements regulated the vehicle appearance, vehicle maintenance, liability insurance, driver reports, driver uniforms, and driver service areas.  FedEx was also responsible for determining the prices charged for services, route schedules, electronic equipment used, forms for paperwork, and approval of substitutes and assistants. It also actively monitored how drivers operated their vehicles, carry packages, and completed paperwork to ensure adherence to company policies.

Based on the fact that the name plaintiffs had formed corporate entities at FedEx’s request and therefore as individuals were not direct parties to the operating agreements with FedEx, the court dismissed the plaintiffs’ claims of breach of the covenant of good faith and fair dealing and rescission.  The court also dismissed the plaintiff’s NJCFA claim because the plaintiffs’ theory was that the fraud related to FedEx’s employment of the plaintiffs which is not a basis for a NJCFA claim.  Further, the court held that plaintiffs could not state a cognizable claim under the NJCFA because business opportunities are not covered by the NJCFA.  The court did, however, allow several claims to proceed, most importantly, the plaintiff’s NJWPL wage claim finding that the fact that the plaintiffs were not parties to the operating agreements was not in and of itself enough on a motion to dismiss to determine if an employment relationship existed between the plaintiffs and FedEx.

For our clients in the transportation, trucking, and logistics industries, requiring that drivers form LLCs or corporations before entering into contracts with them helps to defeat misclassification claims.  However, as this case shows, corporate status is not enough by itself to definitively defeat a misclassification claim as it is one of many factors that a court will consider.

For questions about employment issues involving the trucking and logistics industries, please contact John Vreeland, Esq., Chair of the Transportation, Trucking & Logistics Group and Partner in the Labor Law Practice Group at jvreeland@nullgenovaburns.com or (973) 535-7118, or, Harris S. Freier, Esq., Partner in the Firm’s Employment Law and Appellate Practice Groups, at hfreier@nullgenovaburns.com or (973) 533-0777.  Please also sign-up for our free Labor & Employment Law Blog at www.labor-law-blog.com to keep up-to-date on the latest news and legal developments effecting your workforce.

Second, Eleventh and Seventh Circuits Disagree Whether Title VII Extends to Claims of Sexual Orientation Discrimination

On March 27 the Second Circuit held that Title VII does not provide protection against workplace discrimination based on sexual orientation. In Christiansen v. Omnicom Group Inc., the plaintiff alleged that his employer discharged him because of his sexual orientation and his nonconformity to gender stereotypes.  On appeal to the Second Circuit, the employer sought dismissal of the claims, and argued that claims of sexual orientation discrimination cannot be brought under Title VII.  Plaintiff urged the court to expand Title VII’s scope to reach these claims and, alternatively, that his suit claimed sexual stereotyping, as opposed to sexual orientation discrimination.  The Second Circuit held that it was bound by Second Circuit precedent in this regard and the plaintiff could not state a cognizable claim for sexual orientation discrimination under Title VII.  The Christensen court relied heavily on the Second Circuit’s 2000 decision in Simonton v. Runyon where the court held that Title VII does not prohibit sexual orientation discrimination.

The Christensen court observed that the landscape of sexual orientation and the law have changed significantly since Simonton.  Most notably, in 2013, the Supreme Court struck down the Defense of Marriage Act and in 2015, held that same-sex couples have the right to marry.  However, the Christensen court found that neither of these decisions relates to Title VII protections, but instead they reflect a change in social and judicial perceptions regarding protections for same-sex couples.

The Eleventh Circuit is in agreement with the Second Circuit.  However, on April 4 the Seventh Circuit en banc held that sexual orientation discrimination is cognizable under Title VII. Hively v. Ivy Tech Comm. College. The Seventh Circuit reversed a Circuit panel that found for the employer with reasoning consistent with the Christiansen decision. The EEOC’s enforcement position during the Obama Administration was that discrimination based on sexual orientation is prohibited by Title VII, although it remains to be seen whether this will change under the current administration.

Given the split in the Circuits and the rapid development of the law in this area, employers cannot ignore discrimination or harassment claims based on sexual orientation.  Several jurisdictions already have state and local laws that prohibit these workplace behaviors, including New Jersey, New York, and New York City.  Employers must review their anti-harassment and discrimination policies to ensure compliance not only with Title VII but also with state and local laws, and promptly and effectively respond to complaints of unlawful harassment and discrimination.

For more information on this decision, on the applicability of Title VII to your organization, or to ensure compliant employment practices, 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.

Two Federal Courts Dismiss ADA Website Accessibility Claims

In the last two months, at least two federal district courts have dismissed website accessibility lawsuits filed against private companies under the Americans with Disabilities Act (“ADA”), proving that this issue continues to be the Achilles Heel of the Department of Justice’s (“DOJ”) Regulatory Arena.

For context, imagine a blind person who is unable to make online mortgage payments because his bank’s website did not provide him the means.  The DOJ is tasked with enforcing the ADA, a federal statute that provides for equal access to places of public accommodation, including private businesses, for such persons with disabilities.  However, the text of the ADA is silent about public accommodations’ websites, and a recent executive order aimed at decreasing federal regulations has all but eliminated any chance that the DOJ will issue regulations on that topic.  The absence of such regulations has emboldened disability advocacy groups across the nation to flood the courts with lawsuits against companies alleging a failure to provide equal access to audio, audiovisual, or other content made available online.

Not so fast, said the U.S. District Court for the Central District of California.  On March 20, 2017, in the case of Robles v. Domino’s Pizza LLC, No. 16-06599, the federal court dismissed ADA web accessibility litigation brought against the enormous food retailer, Domino’s.  The court relied on the “primary jurisdiction doctrine,” which allows courts to dismiss complaints pending the resolution of an issue that is “within the special competence of an administrative agency.”  Noting that Congress has vested exclusive authority with the DOJ to promulgate regulations defining what web accessibility standards to impose on private companies, the court concluded that it was inappropriate to render judgment against Domino’s in the absence of such regulations.

There are various other legal issues that arise in ADA web accessibility cases, including the concept of standing, which means having a concrete injury that can be rectified by a court order, and whether a website is a place of public accommodation.  The U.S. District Court for the Southern District of Florida, in the case of Gomez v. Bang & Olfusen America, Inc., No. 16-23801, shed light on both issues.  The Gomez court dismissed an ADA web accessibility claim brought by a plaintiff who contended that the company’s website could hypothetically impede a blind person from enjoying all the benefits of the company’s retail stores on the basis that the plaintiff did not have a particularized injury (i.e., standing).  As the court concluded, “[h]is generalized grievances are wholly unconnected to any harm he actually suffered at the place of public accommodation (i.e. the concrete, physical store) and are therefore insufficient to survive a motion to dismiss.”  The court also recognized that websites are not included in the ADA’s express list of public accommodations: “If Congress – recognizing that the internet is an integral part of modern society – wishes to amend the ADA to define a website as a place of public accommodation, it may do so.  But the Court, having no legislative power, cannot create law where none exist.”

Although these cases may suggest a shield to ADA web accessibility litigation, there are just as many courts across the country taking completely opposite views.  For example, only one year ago, a Massachusetts federal court rejected the “primary jurisdiction doctrine” (relied upon in Robles) as a basis to dismiss ADA web accessibility claims made against Harvard University and the Massachusetts Institute of Technology.  See Nat’l Ass’n of the Deaf, et al., v. Harvard Univ., et al., No. 15-30023; Nat’l Ass’n of the Deaf, et al. v. Massachusetts Inst. of Tech., No. 15-30024.  Given the national split over these issues and the unlikelihood that the DOJ will issue clarifying regulations, businesses should be cautious.

The first step a business should take to minimize the risk of expensive litigation and exhausting DOJ investigations is to designate an ADA coordinator/compliance group to audit its website.  Companies should simultaneously work with counsel so that reports and findings from these audits are generated under privilege.  In addition, companies should adopt strong website accessibility polices and staff training materials.  Moreover, one of the most effective ways to stave off litigation is to provide a customer service, like a hotline, devoted to assisting customers who encounter difficulties in accessing a company’s web content.

Those with questions about these emerging issues or looking for a preliminary assessment of their legal exposure under the ADA should contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@nullgenovaburns.com, or Brigette N. Eagan, Esq., Counsel with the firm’s Human Resources Practice Group, at beagan@nullgenovaburns.com or 973-533-0777.

 

Trump Blinks and Signs Revised Executive Order; States React Immediately

On March 6 President Trump signed a second Executive Order revoking his January Order and replacing it with Executive Order (“March Order”) effective March 16, 2017 that is intended to overcome court challenge. The March Order suspends for 90 days entry into the U.S. of nationals of six countries, but carves out limited exceptions for certain categories of affected aliens. After issuing the March Order, the Justice Department immediately asked the federal court in Seattle to halt Washington’s and Minnesota’s legal challenge from proceeding against the January Order and notified the Court notice that the Government plans instead to enforce the provisions of the March Order.  However, for the moment the Seattle lawsuit remains pending.

Under the March Order, entry by nationals of six countries -Iran, Libya, Somalia, Sudan, Syria and Yemen- is suspended through June 14, 2017. The suspension of entry into the U.S. will apply only to foreign nationals from the six countries who 1) are outside the U.S. as of March 16, 2017, and 2) did not hold a valid visa as of 5 p.m. EST on January 27, 2017 and 3) do not have a valid visa as of March 16, 2017. The suspension of entry into the U.S. will not apply to U.S. permanent residents, any foreign national who is admitted to or paroled into the U.S. on or after March 16, 2017, any foreign national who has a document other than a visa valid on March 16, 2017 that permits the individual to travel in the U.S., any dual national of one of the six countries if the individual is traveling using a passport from the non-designated country, any foreign national traveling on a diplomatic visa, NATO visa, C-2 visa for travel to the U.N. or a G-1, 2, 3 or 4 visa, any foreign national granted asylum, and any refugee already permitted to be in the U.S. No immigrant or nonimmigrant visas issued before March 16, 2017 is being revoked by the March Order and any individual whose visa was revoked as a result of the January Order is entitled to a travel document permitting travel to and entry into the U.S.

Although the March Order does not list Iraq as a banned country, decisions about issuance of visas or granting entry to any Iraqi national will be subject to additional scrutiny to determine if the alien has connections to ISIS or other terrorist organizations, or otherwise poses a threat to national security or public safety.

The March Order also suspends all refugee travel into the U.S. under USRAP and suspends decisions on all refugee status applications through July 16, 2017. The January Order banned all Syrian refugees’ admission into the U.S. indefinitely. The Secretaries of State and Homeland Security retain the ability to jointly determine a refugee’s admission into the U.S. on a case-by-case basis so long as admission is in the national interest and poses no threat to national security and welfare. Finally, for fiscal year 2017 entry by refugees in excess of 50,000 is suspended until the President determines additional entries are in the country’s interest.

The first state to challenge the March Order was Hawaii which sued in Honolulu federal court claiming that the March Order results in an unconstitutional establishment of religion and inflicts immediate harm on Hawaii’s economy, education and tourism. U.S. District Judge Derrick Watson will hear Hawaii’s request for a temporary restraining order on March 15. New York’s Attorney General announced that New York will join Washington and Minnesota in the pending federal case in Seattle. Other states are expected to follow New York’s and Hawaii’s example.

If you have any questions or would like to discuss how the March Executive Order affects your employees and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

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.

Appellate Court Expands Rice Notice Requirements

Following the February 8, 2017 Appellate Division decision in Kean Federation of Teachers v. Morell, public bodies must review their processes for issuing Rice notices and making available meeting minutes to the public.

In its decision, the Appellate Division expanded the application of the Rice notice requirements to include all situations in which the public body intends to take action on an agenda item which will affect an employee’s “employment appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion or [discipline]” of its employees. This requirement attaches to all agenda items, regardless of whether the public body intends to hold a discussion about the matter.  The Court reasoned that presenting a Rice notice for all employees on a particular agenda allows the public body to have “flexibility to discuss matters in executive session when necessary and affords the affected employees the opportunity” to request a public discussion.

In the same decision, the Court also evaluated the timeframe required for a public body to release its meeting minutes so that it meets the OMPA’s requirement of making them “promptly available”.  At issue was a set of minutes from the September 15, 2014 meeting, which took 94 days to release.  A second set, from the December 6, 2014 meeting took 58 days to release.  Although the Court did not expressly define a timeline to comply with making minutes “promptly available,” it suggested that a reasonable timeframe for release is within 30-45 days.  Even without a clear rule, the Court makes it clear that a 2 or 3 month delay is not justifiable, and mandates public bodies to “adopt a protocol that makes the availability of its meeting minutes a priority.”

The Court’s clear directive to the parties is applicable to all public bodies effective immediately.  Public bodies should review their protocols to ensure that Rice notices be issued in advance of taking action on agenda items involving employment matters.  Public bodies must also review its processes to ensure an efficient method of producing required meeting minutes (including those which are subject to redaction) relatively soon after receipt of a request.

For additional guidance regarding compliance with the Court’s mandate, please contact Jennifer Roselle at 973-646-3324 or jroselle@nullgevnoaburns.com. Ms. Roselle is Counsel in the Firm’s Labor Law and Education Law Practice Groups.

EEOC Releases 2016 Enforcement Data: Charges Increase, Downward Trend in Litigation & Monetary Recovery, LGBT Charges Highlighted

Each year, the U.S. Equal Employment Opportunity Commission (EEOC) releases data detailing the charges of workplace discrimination it receives, the number of enforcement suits filed and resolved, and any areas of targeted investigations and compliance initiatives from the prior year.  On January 18, 2017, the EEOC released its Fiscal Year 2016 Enforcement and Litigation Data summarizing its findings.

Rising Number of Discrimination Charges – According to the EEOC, in 2016 it received 91,503 charges of discrimination, making 2016 the second consecutive year that the agency has seen an increase in the number of charges.  2016 also marks the third consecutive year in which retaliation was the most frequently filed charge.  Below is a chart summarizing the EEOC’s breakdown of the categories of charges filed in 2016 along with a comparison to those charges filed in New Jersey and New York:

  National New Jersey New York
Retaliation:  

42,018 (45.9%)

 

731 (1.7% of total Retaliation charges in US)  

1,604 (3.8% of total Retaliation charges in US)

 

Race:  

32,309 (35.3%)

 

624 (1.9% of total Race charges in US)  

1,084 (3.4% of total Race charges in US)

 

Disability:  

28,073 (30,7%)

 

583 (2.1% of total Disability charges in US)  

1,061 (3.8% of total Disability charges in US)

 

Sex:  

26,934 (29.4%)

 

500 (1.9% of total Sex charges in US)  

1,202 (29% of total Sex charges in US)

 

Age:  

20,857 (22.8%)

 

437 (2.1% of total Age charges in US)  

865 (4.1% of total Age charges in US)

 

National

Origin:

9,840 (10.8%)

 

254 (2.6% of total National Origin charges in US)  

601 (6.1% of total National Origin charges in US)

 

Religion:  

3,825 (4.2%)

 

104 (2.7% of total Religion charges in US)  

180 (4.7% of total Religion charges in US)

 

Color:  

3,102 (3.4%)

 

42 (1.4% of total Color charges in US)  

208 (6.7% of total Color charges in US)

 

Equal Pay:  

1,075 (1.2%)

 

Info not available Info not available
Genetic

Information:

 

238 (.3%) Info not available Info not available

Steady Increase in Charges Filed by LGBT Individuals – For the first time, the EEOC included details in its year end summary about sex discrimination charges filed specifically by members of the LGBT community.  In fiscal year 2016, it settled 1,650 of such charges, recovering $4.4 million.  This accounts for roughly 40% of the 4,000 sex discrimination charges filed by LGBT individuals since fiscal year 2013, which indicates a notable, steady rise in the number of charges filed by members of the LGBT community.  Also trending are the issues involving transgendered employees’ restroom rights.  In July 2015, the EEOC ruled that denying an employee equal access to a common restroom corresponding to the employee’s gender identity constitutes sex discrimination violated Title VII of the Civil Rights Act, as does conditioning an employee’s such right on proof that the employee underwent a medical procedure, and/or restricting a transgendered employee to a single-user restroom.

Overall Decrease in Monetary Awards – The EEOC recovered a total of over $482 million in fiscal year 2016, down from the $525 million in 2015, broken down as follows:

  • $347.9 million for private-sector, state, and local government employees through mediation, conciliation, and settlements;
  • $52.2 million through litigations; and
  • $82 million for federal employees.

Downward Trend in Litigation – Over 76% of cases that were referred to mediation in 2016 were resolved successfully, though conciliation had a lower success rate of only 44%.  Litigation by the EEOC is experiencing a downward trend, with only 165 active cases on the EEOC’s docket at the end of 2016, as opposed to the 218 that existed at the end of 2015.  In addition, the EEOC filed only 86 lawsuits alleging discrimination in 2016, down from its 142 filed in 2015 and 133 in 2014.

New Online Charge Status System – The EEOC launched digital services allowing employers and charging parties to receive and file documents electronically, check the status of charges online, and communicate electronically with the EEOC.  These services are intended to streamline the charge process and reduce the number of paper submissions and phone inquiries, easing administrative burdens on the EEOC.  These changes may make it easier not only for the agency to handle more charges and resolve them more quickly, but for complainants to file them.

New ADA Regulations on Employer-Sponsored Wellness Plans – The EEOC issued regulations and interpretive guidance advising that employers may provide limited financial and other incentives in exchange for an employee answering disability-related questions or undergoing medical exams as part of a wellness program.

Employers should review the EEOC’s 2016 charge and enforcement data in order to remain vigilant when responding to complaints of harassment and/or discrimination in the workplace.  The EEOC’s statistics also reinforces the need for employers to train managers, supervisors, and employees on those policies.

For more information on the EEOC’s year-end summary, the EEOC’s strategy for future enforcement of federal employment discrimination statutes, or ways to ensure that your company is in compliance with the EEOC’s mandates, 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.