Jersey City Employers Must Provide Sick Time

Beginning today January 24, 2014, businesses in Jersey City with 10 or more employees must provide up to 40 hours of paid sick time to each employee each calendar year, including part-time and temporary employees who work at least 80 hours in the year. Jersey City employers with fewer than 10 employees must provide unpaid sick time to their employees, including part-time and temporary employees who work at least 80 hours in the year.

Generally, employees accrue one hour of sick time for every 30 hours worked beginning on the first day of employment. However, employees may not use sick time until the 91st day of employment. Sick time may be used for one of the following reasons: the employee’s health care, the care of a family member, the closure of the employee’s place of business due to a public health emergency, or to care for the employee’s child whose school is closed due to a public health emergency. Sick time may be taken in hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time, whichever is smaller.

Employers that already have a paid leave policy in place that provides at least an equal amount of paid leave for the same qualifying events covered by the ordinance are not required to provide additional paid sick time, but should have their leave policies reviewed carefully by counsel to ensure that their policies comply. Jersey City’s new law provides for carry-over of accrued but unused sick time from one calendar year to the next, however employees are not required to pay employees for accrued but unused sick time at the time of separation from employment.

Employers must provide written notice to new hires, display a poster approved by the Jersey City Department of Health and Human Services, and retain records of employee pay and sick time usage for three years. Employers who violate the notice and posting requirements may face fines up to $100 for each employee who did not receive a notice and up to $500 for each establishment where a poster was not displayed. This new law also prohibits retaliation, and employers found in violation can face a fine of up to $1,250 and/or up to 90 days of community service per violation.

Some Frequently Asked Questions about Jersey City’s new law can be found here.

For more information on the new ordinance, or for information on paid sick time laws in other jurisdictions, please contact Patrick W. McGovern, pmcgovern@nullgenovaburns.com, or Rebecca Fink,rfink@nullgenovaburns.com, in the firm’s Labor Group.

Supreme Court Holds that Early Offer of Judgment Moots Nascent FLSA Collective Action

On April 16, 2013 the U.S. Supreme Court reversed the Third Circuit’s decision in Genesis HealthCare Corp. v. Symczyk and held that a Fair Labor Standards Act (“FLSA”) collective action became moot once the employer’s made a Rule 68 offer of judgment that fully satisfied the damages claims of the employee who brought the suit.

In Genesis, the employee filed an action in U.S. District Court in Philadelphia for unpaid wages under the FLSA. In her complaint, the employee claimed to represent similarly situated individuals but no one else had joined the lawsuit when the employer made a Rule 68 offer of judgment to the employee. The offer of judgment was for $7500 plus counsel fees and costs as determined by the Court. The employee did not respond to the offer of judgment and on the employer’s motion, the District Court dismissed the entire suit. The District Court found that the employee’s claim was moot since it was satisfied by the employer’s offer and, since no other parties had joined the action at that time, the complaint was dismissed.

On appeal the Third Circuit agreed that the offer of judgment was effective to have the individual employee’s claim dismissed, regardless of whether the offer was accepted, but not the collective action claims. The Third Circuit reasoned that the employer’s attempt to “pick off” the plaintiff before the collective action could be conditionally certified “frustrated” the purpose of the FLSA collective action process and remanded the case to the District Court for possible conditional certification of the collective action.

The U.S. Supreme Court reversed the Third Circuit but avoided resolving the circuit split regarding whether a Rule 68 offer of judgment can moot a plaintiff’s claim. The Court ruled narrowly that both the District Court and the Third Circuit were in agreement that the employee’s claim was moot after she received the employer’s Rule 68 offer. Then disagreeing with the Third Circuit, the Supreme Court held that, in the absence of any other claimant’s opting in, the collective action claims became moot once the employee’s individual claim became moot, because Ms. Symczyk lacked any personal interest in representing others in the action. The Court further emphasized the distinction between a class action brought under Rule 23 of the Federal Rules of Civil Procedure and an FLSA collective action. Specifically, the Court stated that conditional certification under the FLSA is not tantamount to a Rule 23 class certification because “[t]he sole consequence of conditional certification is the sending of court-approved written notice to employees . . . who in turn become parties to a collective action only by filing written consent with the court.”

In light of the Supreme Court’s decision, an employer that is named in a putative collective action in federal district court now has another option for resolving the claims early, by making a Rule 68 offer of judgment to the named plaintiff early on, before other employees and former employees opt in.

For more information about FLSA collective actions, including defending these suits, please contact Patrick W. McGovern, Esq., pmcgovern@nullgenovaburns.com, or Rebecca Fink, Esq., rfink@nullgenovaburns.com, in the Firm’s Labor Practice Group.

USCIS Issues Revised I-9 Employment Verification Form

Earlier this month the U.S. Citizenship and Immigration Services (USCIS) released a revised I-9 Employment Eligibility Verification Form. Since May 1986 all U.S. employers have been required to complete and maintain in their records an I-9 form to verify the identity and authorization of each new employee to work in the U.S. Once a new hire has completed the I-9, the employer must retain a copy of the I-9 form for three years from the date of hire, or one year from the date of termination, whichever is longer. (For example, an employer who terminates an employee after five years of employment must maintain that employee’s I-9 form for one year from the date of termination.) Employers that fail to complete the I-9 form or do not properly retain the I-9 form are subject to monetary penalties up to $1,100 per I-9, and criminal penalties may be imposed in certain cases.

The new I-9 form introduces the following changes:

  • Requires employees who are aliens authorized to work under an I-94 card to state the foreign national passport number and country of issuance;
  • Provides clarification under List C of acceptable documents that social security cards with restrictions, such as “Not Valid For Employment,” “Valid for Work Only with INS Authorization,” or “Valid for Work Only with DHS Authorization” are not acceptable List C documents;
  • The List of Acceptable Documents now references Section 2 of the I-9 employer instructions for more information about acceptable receipts.
  • Clarifies that List B identity documents do not require reverification;
  • Adds a field for the employer representative’s name; and
  • Provides optional fields for the employee’s email address and telephone number.

While the USCIS suggests that employers begin using the new I-9 form immediately, employers may continue to use an approved 2009 version of the form through May 6, 2013. Effective May 7, 2013, all employers must use the new I-9 form for new hires.

For more information on I-9 compliance, the e-verify program or other immigration law compliance issues, please contact Patrick W. McGovern at pmcgovern@nullgenovaburns.com or Rebecca Fink at rfink@nullgenovaburns.com in our Immigration Law Practice Group.