COVID-19 Virus: Your Legal Rights Regarding Time Off

As the COVID-19 virus outbreak spreads across New Jersey, public health experts are advising those who feel sick to stay home. Here’s a look at some of the labor protections available for employees, especially those who cannot afford to miss a paycheck.

Paid Sick Leave

Employees do not need to be sick themselves to use this time off. They can use their earned hours to: stay home if their workplace is closed due to a public health emergency; care for family members; or attend children’s required school-related meetings, etc.

Governor Murphy signed a paid sick leave law that went into effect in October 2018 that allows full- and part-time employees in New Jersey to accrue up to 40 hours of paid sick time off to use at companies of all sizes. The law applies to any person, firm, business, educational institution, nonprofit agency, corporation, limited liability company, or other entity with New Jersey-based employees, including a temporary help service firm. Employers of every size are covered, including employers based outside of New Jersey.It does not apply to unionized construction workers, hospital health care workers who are paid per diem, or public employees who already receive sick pay.

Workers don’t immediately get days off to use. Businesses must provide one hour of paid sick time for every 30 hours an employee works, but a company can advance the time. An employee can start using hours after 120 days of work. Workers can carry over up to 40 hours of sick leave into the next year.

Family Leave

The New Jersey Family Leave Act law allows workers to earn up to 6 weeks of paid time off to care for a sick family member or after having a child. The law applies to companies with 30 or more employees.

Workers can receive up to two-thirds of their paycheck, or up to a maximum of $667 a week. Starting on July 1, 2020, workers will get 12 weeks of paid time off and can receive 85% of their weekly wages up to $881 a week.

Workers can use benefits to care for parents, spouses or civil union partners, children, siblings, grandparents, grandchildren, parents-in-law, any blood relative or someone considered “equivalent” of family. The employee cannot take family leave for his own health condition, and must have worked at this company for at least one year.

Employees also have up to 12 weeks of unpaid family leave under the federal Family and Medical Leave Act if they contracted the virus or need to take care of a family member with the coronavirus. The key difference between the federal law and the state law is that under the federal law employees can take leave for their own illness.

If you test positive for COVID-19, here are some additional options to consider:

  1. Use earned sick leave
  2. Apply for temporary disability insurance: File a claim online at myleavebenefits.nj.gov if you contracted the virus while not at work. Your health care provider will need to report your diagnosis and length of time you would be expected not to be at work.
  3. Did you contract it at work? You may be eligible for workers compensation insurance: If you contract the virus for a work-related reason, like serving someone with the virus at a restaurant, or interacting with a coworker with the virus, you may be eligible for workers’ compensation insurance benefits.

If you have any questions regarding COVID-19 and its effect on your employment, please contact us at mschley@schleylaw.com or at 732-325-0318.

U.s. Department Of Labor Issues
Final Rule On Regular Rate Under The Fair Labor Standards Act

The regular rate determines how much non-exempt employees covered by the FLSA receive in overtime pay, as the Act generally requires overtime pay of at least one and one-half times the regular rate for time worked in excess of 40 hours per workweek.

The Final Rule, which went into effect January 15, 2020, focuses primarily on clarifying whether certain kinds of benefits or “perks,” and other miscellaneous items must be included in the regular rate. Because these regulations have not been updated in decades, the Final Rule will better define the regular rate for today’s workplace practices and will allow employers to more easily offer perks and benefits to their employees.

The newly adopted regulation states that employers may exclude the following when determining an employee’s regular rate of pay:

  • Cost of providing certain parking benefits, wellness programs, onsite specialist treatment, gym access and fitness classes, employee discounts on retail goods and services, certain tuition benefits (whether paid to an employee, an education provider, or a student-loan program), and adoption assistance
  • Payments for unused paid leave, including paid sick leave or paid time off
  • Payments of certain penalties required under state and local scheduling laws
  • Reimbursed expenses including cellphone plans, credentialing exam fees, organization membership dues, and travel, even if not incurred “solely” for the employer’s benefit; and clarifies that reimbursements that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System or the optional IRS substantiation amounts for travel expenses are per se “reasonable payments”
  • Certain sign-on bonuses and certain longevity bonuses
  • Cost of office coffee and snacks to employees as gifts
  • Discretionary bonuses, by clarifying that the label given a bonus does not determine whether it is discretionary and providing additional examples
  • Contributions to benefit plans for accident, unemployment, legal services, or other events that could cause future financial hardship or expense

If you have any questions regarding overtime pay or compensation, please contact us at mschley@schleylaw.com

Philadelphia Salary History Inquiry Ban is Constitutional

In a decision that could have national implications for the wage-equity movement, the Third Circuit Court of Appeals ruled that the City of Philadelphia may enforce its law prohibiting employers from asking applicants about their salary history.

The decision upheld the constitutionality of the Philadelphia law under the First Amendment. The Court held that the law infringed, to some extent, on the free speech rights of employers, but it did not violate the First Amendment because it was narrowly tailored to address a substantial government interest.

Proponents of the law, which include the city and women’s advocates, say it would cut down on gender- and race-based discrimination that contributes to the wage gap by keeping unfair salaries from snowballing through an employee’s career. Studies suggest women on average make about 80 cents for every dollar a man does. That gap is even higher for women of color.

If you have any questions regarding Salary History Ban or Salary Discrimination, please contact us at mschley@schleylaw.com

New Jersey DOL Earned Sick Leave Law

On January 6, 2020, the New Jersey Department of Labor issued Earned Sick Leave Rules that further explain employer responsibilities under the New Jersey Earned Sick Leave Law, which took effect on October 29, 2018.

New Jersey’s Sick Leave Law gives New Jersey employees the right to accrue and use up to 40 hours of paid sick leave (leave) in any period of 12 consecutive months. Employers who violate this law can be subject to significant administrative, civil, and potentially criminal charges.

With a few exceptions, the law covers all full and part-time New Jersey employees. Out-of-state employers with employees in New Jersey must provide leave to its employees who work in New Jersey.

Firstly, these final regulations eliminate the requirement that an employer establish a single benefit year applicable to all employees. The NJDOL explains that an employer may lawfully utilize an employee’s anniversary year as the benefit year for purposes of the leave. Leave hours can be accrued at a rate of one hour of leave for every 30 hours worked, or employers may choose to make the entire 40 hours of leave available to employees at the beginning of the benefit year, as defined by the employer.

Secondly, employees may use accrued leave after their 120th day of employment, for any of the following reasons:

  • Employee’s Mental/Physical Illness: Diagnosis, care or treatment of, or recovery from, an employee’s own mental or physical illness, including preventive medical care.
  • Family Member’s Mental/Physical Illness: Aid or care for a covered family member during diagnosis, care or treatment of, or recovery from, the family member’s mental or physical illness, including preventive medical care.
  • Victim of Domestic/Sexual Violence: Circumstances related to an employee’s or their family member’s status as a victim of domestic or sexual violence (including the need to obtain related medical treatment, seek counseling, relocate or participate in related legal services).
  • Public Health Emergency: Closure of an employee’s workplace or of a school/childcare of an employee’s child because of a public official’s order relating to a public health emergency.
  • School-Related Parental/Guardian Attendance: Time needed by the employee in connection with a child of the employee to attend a school-related conference, meeting, function, or other event requested or required by a school administrator, teacher, or other professional staff members responsible for the child’s education, or to attend a meeting regarding care provided to the child in connection with the child’s health condition or disability.

Employers may require employees to submit reasonable documentation if they use leave for three or more consecutive days, or if the employee uses leave for an unforeseeable absence on “certain dates” identified by the employer in advance. The new rules provide examples of acceptable documentation.

A failure to comply with the leave law constitutes a failure to pay wages in accordance with the New Jersey Wage Payment Law. That law requires employer to pay non-exempt employees at least twice a month on regular paydays designated in advance. The requirement applies to any payout of earned sick leave at the conclusion of the benefit year.

If you have questions about time off or sick leave related to your employment, you can contact us at mschley@schleylaw.com.

New York State Strengthens Harassment and Discrimination Laws: Part 2 of 2

This is a continuation of our prior blog that discusses the new workplace protections in New York.

1. Restricts Non-Disclosure Agreements.

In 2018, New York State law was amended to limit the use of Non-Disclosure Agreements in connection with the resolution of sexual harassment claims. This limitation now applies to the settlement of all discrimination, harassment and retaliation claims. Specifically, the law precludes the use of non-disclosure agreements that prohibit an individual from disclosing the facts and circumstances of a discrimination or harassment claim, unless: (i) the condition of confidentiality is in the complainant’s best interest; (ii) any such non-disclosure provision is the complainant’s preference and is written in plain English, and if applicable, the primary language of complainant.

2. Hair Discrimination.

The new legislation also prohibits employment discrimination based on religious attire, clothing or facial hair. The new law amends the New York State Human Rights Law to make clear that employers cannot refuse to hire, retain, promote, or take other discriminatory action against an individual for their attire, facial hair or displaying other physical traits (ex: hair texture and braids) in accordance with the tenets of their religion or race. Further, employers are prohibited from treating applicants or employees differently because of that person’s religious beliefs.

3. Salary History Ban.

New York State has also enacted laws prohibiting employers from inquiring about salary history during the process of considering an individual for a job. Employers must not:

a) Rely on an applicant’s wage or salary history in determining whether to offer employment or in determining the wage or salary for such individual.

b) Orally or in writing seek, request, or require an applicant or current employee’s wage or salary history as a condition to be interviewed, as a condition of continuing to be considered for an offer of employment, or as a condition of employment or promotion.

c) Orally or in writing seek, request, or require an applicant or current employee’s wage or salary history from a current or former employer, current or former employee, or agent of the applicant or current employee’s current or former employer.

d) Refuse to interview, hire, promote, otherwise employ, or otherwise retaliate in any manner against an applicant or current employee (i) based on the individual’s prior wage or salary history; (ii) based on the individual’s refusal to provide wage or salary history information; or (iii) based on the filing of a complaint with the Division of Human Rights alleging a violation of this law.

4. Equal Pay protections expanded to all protected classes.

The new legislation also amends the equal pay provisions of the New York Labor Law (NYLL), which currently prohibits gender-based pay inequity, to apply to members of all protected classes under the NYSHRL. Under the new legislation, individuals who believe they are underpaid due to their protected status will be able to bring a claim for equal pay directly under the NYLL. The NYLL has a six-year statute of limitations, which is double the three-year statute of limitations applicable to claims under the NYSHRL, and also provides for triple damages.

Additionally, the new law lowers the burden of proof for an individual claiming an equal pay violation by requiring employers to ensure equal pay for “substantially similar work,” as opposed to “equal” work. However, the law permits a differential in rate of pay if the employer can show that such decision is based on (i) a seniority system, (ii) a merit system, (iii) a system measuring earnings by quantity or quality of production, or (iv) a bona fide factor other than the protected status, such as education, training or experience, which is job-related and consistent with business necessity.

If you have questions regarding discrimination, harassment or any other aspect of labor and employment law, feel free to contact Mitchell Schley at 732-325-0318 or mschley@schleylaw.com.

New York State Strengthens Harassment and Discrimination Laws: Part 1 of 2

On August 12, 2019, Governor Andrew Cuomo signed legislation that further strengthens New York’s existing workplace harassment and discrimination protections.

Until now, workplace protections applied only to employees. However, in recognition that employers often characterize workers differently, the legislation expands workplace protections to independent contractors, subcontractors, vendors and consultants. In addition, the legislation requires employers to adopt sexual harassment prevention policies and conduct annual, interactive sexual harassment prevention training for all employees.

Summary of the Laws:

  1. Covers all employers in the state.

    Previously, except with respect to alleged sexual harassment, an employer with fewer than four employees was not covered by the New York State Human Rights Law (NYSHRL). Now, every employer within the state of New York is covered by the NYSHRL

  2. Expands protections against all forms of discriminatory harassment based on all protected categories.

    In addition to protection from sexual harassment, non-employees, are now protected from all forms of unlawful discrimination where the employer knew or should have known the non-employee was subjected to unlawful discrimination in the workplace and failed to take immediate and appropriate corrective action.

  3. Eliminates restriction that harassment be “severe or pervasive” in order to be legally actionable.

    The burden of proof for harassment claims has been significantly lowered in New York State. Specifically, the legislation removes the requirement that complainants prove “severe or pervasive” conduct that altered their conditions of employment and created a hostile and abusive work environment.

    Now, employers must address all forms of harassment in the workplace, including isolated instances. Thus, any harassment based on a protected class is unlawful “regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims.” This definition of harassment applies to all protected characteristics including, but not limited to, age, race, creed, color, national origin, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, and sexual harassment.

  4. Eliminates the Faragher/Ellerth Affirmative Defense

    The legislation eliminates the Faragher/Ellerthaffirmative defense, which is commonly used by employers to dismiss claims of sexual harassment. The defense was articulated in two U.S. Supreme Court cases regarding workplace harassment. Those rulings, handed down more than two decades ago, held that an employer is not liable for sexual harassment if it can demonstrate that: (a) the employer exercised reasonable care, such as maintaining a complaint procedure, to prevent and correct promptly harassing behavior; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Now, under the new law, an employee’s failure to invoke his or her employer’s internal complaint procedure will not shield the employer from liability. This is important because victims of harassment are often afraid make a complaint for fear of retaliation.

  5. Allows punitive damages and mandates attorneys’ fees in employment discrimination cases.

    The award of attorneys’ fees to a prevailing plaintiff in an employment discrimination, harassment or retaliation case is now mandatory, not discretionary. Conversely, attorneys’ fees are only available to prevailing defendants if the claims brought against them are frivolous. Also, a prevailing plaintiff may be awarded punitive damages in a discrimination, harassment and/or retaliation case against private employers.

  6. Expands the statute of limitations for Human Rights complaints.

    As of August 12, 2020, the statute of limitations to file a sexual harassment administrative complaint with the New York State Division of Human Rights is extended from one year to three years, which is the same amount of time an individual has to pursue a claim in court. It will remain one year for all other types of claims.

  7. Requires employers to provide employees with sexual harassment policies and sexual harassment training materials in English and employee’s primary language.

    Employers will be required to provide employees with their sexual harassment policies and sexual harassment training materials in English and in each employee’s primary language, both at the time of hire and during each annual sexual harassment prevention training.

  8. The remaining amendments to the New York States Harassment and Discrimination Laws will be outlined in our next blog post.

    **Note: All the changes above have already taken effect, except: #1 will become effective on February 8, 2020; and #6 will become effective on August 12, 2020.

New Jersey’s New and Improved Wage Theft Act

On August 6, 2019, New Jersey passed one of the toughest wage theft statutes in the country. This amended statute, the New Jersey Wage Theft Act, emphasizes the importance of worker protection. The statute not only raises the level of protection for retaliation claims, but also increases wage theft penalties.

First and foremost, the Wage Theft Act greatly expands the time period in which an employee may bring a claim for unpaid wages, unlawful discharge and other retaliatory acts from two years to six years. Furthermore, remedies for employees now include reinstatement, corrective action by the employer and, most importantly, payment of lost wages plus 200% of the lost wages amount as liquidated damages. This essentially establishes threefold damages for wage theft violations.

Furthermore, with regards to maintaining proper records, the Wage Theft Act states that employers that fail to produce the records required under the wage and hour laws face a rebuttable presumption that allegations concerning the period of time and number of hours relevant to an asserted violation are true.

The Wage Theft Act also expanded the liability of joint and successor employers. There is a now rebuttable presumption that a successor entity is liable for the violations of the predecessor if only two of the following factors are shown:

  • They perform similar work within the same geographical area.
  • Occupy the same premises.
  • Have the same telephone or fax number.
  • Have the same email address or Internet website.
  • Employ substantially the same work force, administrative employees, or both.
  • Utilize the same tools, facilities, or equipment.
  • Employ or engage the services of any person or persons involved in the direction or control of the other or
  • List substantially the same work experience.

Lastly, the Wage Theft Act also adds criminal penalties onto the civil/monetary penalties. It increases the penalties for a first offense from up to $100 to between $500 and $1,000, 10 to 90 days’ imprisonment or both. For second and subsequent offenses, the penalties increase to between $1,000 and $2,000, 10 to 100 days imprisonment or both.

The majority of the law went into effect on August 6, except for some of the criminal penalties which went into effect on November 1, 2019.

Obesity, Alone, Is Not A Disability

The question of whether or not obesity is considered a disability has been partially answered. On April 4, 2019, Judge Haas delivered the opinion of the New Jersey Appellate Division in the case of Dickson v. Community Bus Lines, Inc. d/b/a Coach USA, A-3857-17T3 (App. Div. Apr. 4, 2019),—which effectively limited how and when obesity can form the basis of a perceived protected disability. Unequivocally, Judge Haas explained that obesity alone may not constitute the basis for a person to assert that he or she has a disability protected by the New Jersey Law Against Discrimination (LAD). Judge Haas wrote that “obesity alone is not protected under the LAD as a disability unless it has an underlying medical cause, a condition that plaintiff failed to meet in the present case.” Because the plaintiff did not establish that defendants viewed him as suffering from any condition other than obesity, he was denied LAD protection. If, instead, the plaintiff had shown that his obesity was a disability caused by a bodily injury, birth defect, or illness, the plaintiff may have been afforded LAD protection.

Still, the plaintiff would have needed to show that his coworkers or supervisors were treating him pervasively poorly because of his conditions. The LAD protects employees from discrimination for both disabilities and perceived disabilities—here, for example, the plaintiff was asserting that he was being treated poorly because others saw his body size, assumed that it made him less qualified for the job, and outwardly spoke or acted on this perception.

Importantly, Judge Haas also reemphasized what a proper “hostile work environment” case entails: a plaintiff must show “(1) that [he or she] is in a protected class; (2) that [he or she] was subjected to conduct that would not have occurred but for that protected status; and (3) that it was severe or pervasive enough to alter the conditions of employment.” Being a member of a protected class is, in fact, a prerequisite necessary to bring a hostile environment claim. Currently, while obesity alone is not a condition which constitutes a protected class, many other conditions and characteristics are. For instance, a disability based on a health condition (such as paraplegia, cancer, or Crohn’s Disease) can form the basis of a protected class. Additionally, New Jersey provides protections for certain characteristics (such as race, religion, sex, or sexual orientation), which can form the basis of a protective class. But the Appellate Division has drawn the line that today, obesity alone will not provide grounds for LAD protection.

If you think that you are being discriminated against for a perceived or actual disability, you should contact an employment attorney.

New Jersey Employees’ Sick Leave Rights Have Recently Expanded

Many sick employees are currently protected from adverse employment treatment under the federally-mandated Family and Medical Leave Act (“FMLA”). Under the FMLA, an employee working for a covered employer may take up to 12 workweeks of unpaid leave each year with no threat of job loss if that employee is suffering from a serious health condition which renders him unable to perform his job. All public agencies are covered employers. However, the FMLA only applies to private employers who employed 50 or more employees for at least 20 workweeks during either the current or previous year.

But on October 29, 2018, New Jersey enacted New Jersey Earned Sick Leave Law (“ESL”). Standing in stark contrast to the FMLA, the ESL covers all New Jersey employers regardless of the business’s size. Thus, before the ESL’s recent enactment, an employee who worked for a private employer employing less than 50 employees would be ineligible from employment protections afforded to employees working for an employer with more than 50 employees. With the ESL’s enactment, this disparity stopped.

In addition to effectively expanding the FMLA, the ESL essentially expands an already-existing New Jersey-specific Act. The New Jersey Family Leave Act (“FLA”) was put into place to protect employees requiring leave to care for a family member. The FLA initially provided for unpaid leave and was enacted to enable an employee to care for another only, and not his own self. Eventually the FLA was expanded to mandate paid leave for employees, but has never been expanded to cover caring for the employee’s own self. With the ESL, however, this gap has been filled.

The ESL mandates that employees, whether full- or part-time, may take up to 40 hours of fully-paid sick leave each year. Similar to the FMLA’s qualifying events, the ESL’s qualifying events include caring for their own, or a family member’s, physical or mental health or injury. Moreover, the ESL allows employees to take time off to address domestic or sexual violence against themselves or a family member, to attend a child’s school-related meeting, and to pick-up a child from an emergency school or daycare closing. Similar to other New Jersey legislature aimed at employee protection, the ESL broadly defines “family member.” And similar to the FMLA, an employer can require advance notice prior to the date leave is to begin if the employee’s leave is readily foreseeable.

Employees accrue one hour of ESL per every 30 hours worked. ESL for existing employees can be used beginning February 26, 2019. Employees hired after the ESL’s October 29, 2018 enactment date can begin using ESL hours 120 days after the employee begins employment.

Per diem health-care employees, construction employees already governed by a collective bargaining agreement, and public employees who already received sick leave with full pay pursuant to any other law (such as the FMLA) are ineligible from the ESL’s protections.

If you previously thought you were without legal protection afforded to employees in larger businesses, your rights have changed. Your employer is obligated to provide you with these protections, without any interference or retaliation.

New Jersey Governor Limits Employment Nondisclosure Agreements

This week, New Jersey enacted a law to further protect employee rights. Ordinarily, if a nondisclosure agreement’s terms are violated, the harmed party (whose contractually-protected private information was revealed) could sue the disclosing party for injunctive and monetary relief.

However, on Monday March 18, 2019, New Jersey Governor Phil Murphy signed a bill limiting the use of nondisclosure agreements in employment contracts and settlement agreements. The bill became immediately-effective law. Cases involving discrimination, retaliation, or harassment (including sexual assault and sexual harassment) fall under the new law’s restrictions.

Perhaps in response to the nation’s #MeToo movement, the new law forbids employment contracts from waiving potential victims’ rights: an employer can no longer permissibly create a contract requiring an employee to remain silent about discrimination, retaliation, or harassment claims.

As of March 18, 2019, a settlement agreement resolving such claims must include a “bold, prominently placed notice” explaining that “although the parties may have agreed to keep the settlement and underlying facts confidential, such a provision in an agreement is unenforceable against the employer if the employee publicly reveals sufficient details of the claim so that the employer is reasonably identifiable.”

Furthermore, an employer can no longer create a contract that waives an employee’s procedural due process rights. Arbitration agreements and jury trial waivers involving such claims have become essentially impermissible.

Employees should look for language in these agreements to the contrary, as New Jersey has taken a substantial step to protect its employees’ workplace rights.