Full Service Law Firm in Mt. Laurel Township, NJ | Capehart Scatchard
hrresource

HR Resource Blog

This blog is published by the attorneys in Capehart Scatchard’s Labor and Employment Group. On this site, employers and human resources professionals will find useful tips as to how to keep the workplace, and workplace policies, in compliance with state and federal employment laws.
View OTHER BLOGS

Vaccines and the Workplace

Anyone watching the news today has seen report after report about a possible vaccine for the coronavirus and the speedy progress being made towards its development.  This vaccine is hoped by many to be the cure all to allow the world to go back to some semblance of the normalcy that existed before the commencement of the current pandemic. While all would seemingly acknowledge that an effective and reliable vaccine for COVID-19 would be wonderful news, the success of the vaccine in bringing back normalcy will largely depend upon how willing the general public will be in taking the vaccine. Which leads me to the question that I have already been asked by several of my clients: in an age of a pandemic, can employers force their employees to undergo a vaccine treatment as a condition of employment?

While the current pandemic is new, the above question is not. With the rise of the anti-vaccine movement, employers have actually had to grapple with this issue, especially those in the health care industry. In this regard, there are already several reported cases regarding whether hospitals and other health care providers can require employees to have flu and tuberculosis vaccines as a condition of continuing employment. Employees have been fired for not agreeing to be vaccinated, and a body of law has developed addressing this issue. Absent a compelling reason for refusing a vaccination, the case law holds predominantly that employers can indeed require vaccinations as a term and condition of employment, and employees without a valid religious or medical reason for rejecting a vaccination can indeed be fired. In the large majority of such cases, the courts have determined that the employer has a compelling interest in maintaining the safety of their workplace and the health of those whom they serve. Such legal principles would thus seemingly support the idea that, when a vaccine is discovered for COVID-19, an employer could mandate that employees receive such inoculations, subject to having to consider the possible exemptions previously noted. In an age of a pandemic, and a virus that has killed hundreds of thousands of victims worldwide, it is hard to fathom a more serious threat to public health and an employer’s workforce and its customers that could justify a required vaccine employer directive.

Moreover, in March 2020, the Equal Employment Opportunity Commission (“EEOC”) also issued COVID-19 guidance specifically addressing the issue of whether employers covered by the Americans With Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) can compel all employees to take the influenza vaccine (while noting that there was not yet a COVID-19 vaccine). In responding to this question, the EEOC stated that an employee could be entitled to an exemption from a mandatory vaccination under the ADA based on a disability that prevents the employee from taking the vaccine, which would be a reasonable accommodation that the employer would be required to grant unless it would result in undue hardship to the employer.  Under the ADA, “undue hardship” is defined as “significant difficulty or expense” incurred by the employer in providing an accommodation. The EEOC made similar mention of a possible religious obligation exception under Title VII also absent the required showing of an undue hardship.

Finally, the Occupational Health and Safety Administration (“OSHA”) similarly has declared that employers may require employees to be inoculated against the flu, provided the employer provides to its employees an explanation of the benefits of the inoculation, and further allows for an exception for those employees who reasonably believe that they are at significant risk of serious medical complications from having the vaccination.

So, as we wait for a vaccine to become available, employers should begin thinking about what they will be demanding of their employees regarding the need to receive a vaccination when it begins to be widely distributed. Should employers require vaccinations of all employees, or only those employees who are most high risk for serious complications from COVID? If an employer opts for the latter, could that approach open the door to discrimination claims from those who are older or have disabilities who are at higher risk? And, how do you handle the expected requests for religious and medical accommodations, and can you avoid such duties by arguing that accommodation would impose an undue hardship by increasing the risk of possible COVID spread in your workforce?

Employers:  Begin your analysis of these issues now because if the reports in the news are indeed true of expedited success in creating a vaccine, you will need to address those issues much sooner than you presently think.

 

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

Is the Government Travel Advisory an Enforceable Order?

As most of us know, the Governors of New Jersey, New York, and Connecticut have issued a “travel advisory” indicating that those who travel from certain states must quarantine for a period of 14-days after the last contact with those states. Is this “advisory” an enforceable order? Well, this topic is becoming one of the most complex of issues facing employers today during this pandemic.

The advisory is now effective and applies to all states that have a positive test rate higher than 10 per 100,000 residents or a state with a 10% or higher positivity rate over a seven-day rolling average. But, unlike the governors of New York and Connecticut, who issued executive orders announcing the restrictions, Governor Murphy of New Jersey has not. New Jersey issued a travel advisory instead. Hence, the question that forms the title of this article – is this travel advisory a state order that must be complied with in all due respects or is it a request from the state for persons to voluntarily engage in certain conduct?

The states that are currently on New Jersey’s travel advisory as of July 28, 2020 include the following:

  1. Alabama (added 6/24/20)
  2. Alaska (added 7/21/20)
  3. Arkansas (added 6/24/20)
  4. Arizona (added 6/24/20)
  5. California (added 6/30/20)
  6. Delaware (re-added 7/21/20)
  7. District of Columbia (added 7/28/20)
  8. Florida (added 6/24/20)
  9. Georgia (added 6/30/20)
  10. Iowa (added 6/30/20)
  11. Idaho (added 6/30/20)
  12. Illinois (added 7/28/20)
  13. Indiana (added 7/21/20)
  14. Kansas (added 7/7/20)
  15. Kentucky (added 7/28/20)
  16. Louisiana (added 6/30/20)
  17. Maryland (added 7/21/20)
  18. Minnesota (re-added 7/28/20)
  19. Mississippi (added 6/30/20)
  20. Missouri (added 7/21/20)
  21. Montana (added 7/21/20)
  22. Nebraska (added 7/21/20)
  23. Nevada (added 6/30/20)
  24. New Mexico (added 7/14/20)
  25. North Carolina (added 6/24/20)
  26. North Dakota (added 7/21/20)
  27. Ohio (added 7/14/20)
  28. Oklahoma (added 7/7/20)
  29. Puerto Rico (added 7/28/20)
  30. South Carolina (added 6/24/20)
  31. Tennessee (added 6/30/20)
  32. Texas (added 6/24/20)
  33. Utah (added 6/24/20)
  34. Virginia (added 7/21/20)
  35. Washington (added 7/21/20)
  36. Wisconsin (added 7/14/20)

The advisory has become a nightmare for many employers to deal with. I am being barraged with questions about whether employers with employees travelling to the listed states must honor the two week self-quarantine directive. In addition, must the employer pay the employer for such quarantine time?  Many employers are irked about that latter fact: that they might actually need to pay employees who are willfully traveling to hot spots where the COVID virus is spreading like a wildfire. So, what can an employer do in this situation?

The first thing that must be determined is whether the advisory has the force of a legal order that must be followed.  On first glance, the answer to this question would seemingly be no. An advisory is just that: a seeming recommendation to self-quarantine for two weeks after travelling to a designated hot spot for the virus. Moreover, unlike New York and Connecticut, New Jersey has not included any prescribed penalties for the failure to follow the advisory. All this seems to suggest that the advisory does not have the force of law, and employers could compel their employees to come to work and not follow the advisory, which by the way, has a long list of exclusions for certain essential employees and folks who are travelling to New Jersey to work, which also seems to support a conclusion that compliance with the advisory is strictly voluntary.

New Jersey has a COVID-19 website that most thoroughly outlines what the state expects concerning its travel advisory. In what can only be described as classic Orwellian doublespeak, here is what that website says about this compliance issue: “The self-quarantine is voluntary, but compliance is expected.”

As a lawyer reading such language, it makes me think that, while couching compliance as voluntary, the advisory really is a legal directive from the state making compliance mandatory – and when push ever comes to shove, I suspect a judge would feel that same way too if any adverse action is taken against an employee who insists upon following the self-quarantine directive.  So what have I been telling employers in this instance: if you can, try and claim that you have an essential employee. A list of those persons can also be found on the NJ COVID website. Otherwise, you likely need to let the employee self-quarantine for the required two weeks.

After concluding that the travel advisory seems to be anything but voluntary, the next question to be addressed relates to whether an employer must pay employees who self-quarantine in light of the advisory. If it is indeed a quarantine order, an employee would be allowed to use either New Jersey Paid Sick Time or might be eligible for paid emergency sick time under the Families First Coronavirus Response Act (“FFCRA”). That seems to flow from my analysis so far.

But, I recently had a conversation with a federal Department of Labor Investigator. That department is responsible for investigating claimed violations of the FFCRA.  Significantly, I was told by this investigator that right now her colleagues in New Jersey believe that the travel advisory is a voluntary requirement: “it says advisory right” or so I was told by the investigator. Thus, it was her view that paid federal paid sick time was not available because a state quarantine “order” was missing, and without such an order, there is no paid sick time eligibility. Confusing, right?  I was further told that the investigators here in New Jersey are awaiting for actual guidance from Washington on this topic. Let’s hope that comes soon.

As can be seen from above, there are a lot of moving parts here when an employer is trying to decide how New Jersey’s travel advisory affects its workforce. One option for the employer is to avoid having to deal with the issue entirely by prohibiting employees from travelling to any of the listed states. Employers have the ability to take such an action. They can ban business trips to those states, and likewise place a moratorium on approving any employee vacations for the next few months while seeing how the pandemic develops further. That way you as an employer know that your employees are not visiting places where a quarantine is required.

Hence, it is confusing to try to figure out what an employer must do in light of New Jersey’s “voluntary” travel advisory that from all indications is really a state “order” requiring full compliance in all respects.  Consequently, employers should proceed cautiously, and guide their actions accordingly, in how they treat employees coming back from restricted states under the advisory.

 

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

EEOC Clarifies Allowable COVID 19 Testing For Employees

Over the last several months, the Equal Employment Opportunity Commission (“EEOC”) has continued to refine its past issued Guidances on what employers can do to safeguard employees from COVID-19 workplace exposure. One such measure that employers can utilize is mandating that all employees be tested for COVID-19.  But previously the EEOC never said what type of testing can be done. The EEOC has recently clarified precisely what kind of testing employers can now require of its employees.

As many know, there are now currently two types of available tests that can be utilized to detect COVID-19 exposure. The first is a diagnostic test that determines whether someone has the coronavirus at the time of the testing. The second kind is an antibody test that determines whether the individual from past exposure to coronavirus has developed any protective antibodies to the virus. When the EEOC announced its earlier Guidance that employee COVID-19 testing was permissible, employers thought that they had the option to require either type (or both) kinds of testing. That has changed with the EEOC’s latest Guidance.

Now, the only kind of testing allowable is diagnostic to determine whether the individual at the time of the testing has contracted COVID-19.  Antibody testing is not allowed-why?  The EEOC’s rationale for prohibiting such testing flows from recommendations from the Centers for Disease Control (“CDC”) which now states that antibody testing should not be used to return persons to the workplace. Deferring to the CDC’s conclusion about the use of antibody tests for returning employees, the EEOC Guidance now has determined that it is not an appropriate medical test that meets the job relatedness requirement for allowable examinations under the Americans with Disabilities Act.

As the EEOC’s recent modification to its Guidance shows, we are dealing with an ever evolving situation that could change literally overnight. Thus, employers must continue to stay on top of all developments on what can and cannot be done as many states continue their phased economic re-openings.

 

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

COVID-19 and The High Risk Employee

With businesses reopening thanks to modifications of state stay at home orders, employers are beginning to contemplate what their new work environments will look like when employees return. Over the past several months, the Equal Employment Opportunity Commission (‘EEOC”) has provided guidance to employers regarding the ways that a company can safeguard its workplace in this new era of COVID-19. One hot question is whether employers, out of fear of legal liability from possible COVID-19 workplace exposure, can prevent high risk employees who suffer the greatest possible complications from COVID-19 from returning to work merely because of that possibility of greater harm. The EEOC says no, at least not automatically, just because of that high risk of possible complications.

According to the EEOC, employers cannot bar high risk employees from returning to work merely because of that high risk. Rather, before an employer can take such action, the employer must engage in the traditional interactive process required under the Americans with Disabilities Act (“ADA’) any time an employee with a disability needs a workplace accommodation. Since high risk employees have one or more underlying medical conditions that cause them to be high risk, the EEOC directs that employers engage in the interactive process to determine whether there are ways of minimizing that employee’s exposure to COVID-19 in the workplace. As part of that interactive process, the employer can assess whether the employee would pose a direct risk of harm to either themselves or others, but in making that assessment, there must be actual objective proof of possible harm.

Under this standard, a direct threat assessment cannot be based solely on an underlying condition being on the Center for Disease Control’s list of high risk factors. Rather, the determination must be an individualized assessment based on a reasonable medical judgment about a particular employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence. The ADA regulations require an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. According to the EEOC, assessment of these factors should also include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and his/her particular job duties. A determination of direct threat also should include an analysis of the likelihood that an individual will be exposed to the virus at the worksite. Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing or the wearing of face masks and gloves, also would be relevant in determining the possibility of a direct threat of harm. Thus, according to the EEOC, ultimately an employer may only bar an employee from the workplace only if, after going through all the foregoing steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself/herself that cannot be reduced or eliminated by reasonable accommodation.

In light of this EEOC directive, employers should not rush to judgment in deciding to bar a high risk employee from returning to the workplace due to COVID-19. Adherence to the traditional interactive process required by the ADA will enable an employer to navigate through this complicated issue and reduce the chances of significant legal harm arising from the mishandling of such fears during this continuingly evolving pandemic.

 

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

EEOC Updates Guidance On COVID-19 Workplace Prevention

Last month, I wrote an article outlining the steps that employers may take to guard against coronavirus in their workplace. Thanks to a recent Guidance issued by the Equal Employment Opportunity Commission (“EEOC”), employers were able to implement several steps, such as taking employee temperatures and insisting that employees stay home if sick, to prevent COVID 19 spread in the workplace. Recently, the EEOC has expanded on this Guidance, and has added another tool for employers to use in their fight to prevent contagion of their workplace. Now, not only can employers require that previously positive COVID 19 employees provide medical documentation that they are fit to return to work, but employers can now also actually choose to administer COVID-19 testing themselves to all employees before they enter the workplace to determine if they have the virus. The one important question that the Guidance does not answer, however, is where employers will actually get those tests to administer given the well-publicized testing shortages that currently exist in fighting the on-going pandemic.

So, why is such testing permitted? Given the current pandemic, according to the EEOC, such testing is “job related and consistent with business necessity” because any employee who is COVID 19 positive poses a direct threat of harm to the safety of other employees, which is the standard applied for allowing such employee medical testing under the Americans with Disabilities Act. (“ADA”) The EEOC nevertheless cautions that, consistent with this ADA standard, employers should ensure that the tests are accurate and reliable. In this regard, Employers are urged to review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers are also advised to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, the Guidance further warns also that accurate testing only reveals if the virus is then currently present, and that a negative test does not mean the employee will not acquire the virus at some later juncture.

In the end, while allowing testing, the EEOC ultimately urges that employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other similar measures) in the workplace to prevent transmission of COVID-19 as recommended by the CDC and other federal and state health organizations.

So, if you are an employer lucky enough to have access to testing, you now have the green light from the EEOC to administer such testing across your workforce.  If you do decide to implement such testing measures, remember that, it being a medical test, ADA confidentiality and privacy rules apply to both the communication of (and maintenance of) results, and such sensitive private medical information should only be shared with others on a need to know basis.

Are You Ready: A Summary of Federal COVID-19 Leave Laws

Co-Authored by: Lara Ruggerio, Esq.

As of today, April 1, 2020, employers must now comply with the two new federal leave laws recently passed to deal with employee work absences resulting from the COVID 19 crisis. These laws, the Paid Emergency Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, impose new leave requirements upon employers that will remain in place until December 31, 2020. These laws are portions of the Families First Coronavirus Response Act (“FFCRA”). A summary of each of these provisions appears below to help you understand what these new compliance obligations for employers are so your workplace is prepared to deal with these upcoming expected leave requests.  For starters, your first step should be to update your leave policies to include an explanation of these two new leave laws. Secondly, you need to post in your workplace the notice document recently issued by the United States Department of Labor. (“USDOL”). Finally, you need to familiarize yourself with the details of these new leave obligations as are now explained below.    

PAID EMERGENCY SICK LEAVE ACT

The general purpose of this Act is to provide paid sick time to employees that are unable to work due to:

  • Quarantine or isolation relating to COVID-19
  • Self-quarantine ordered by a health care provider
  • Employee is experiencing symptoms of COVID-19 and seeking medical diagnosis
  • Employee is caring for individual who is quarantined or is self-quarantined
  • Employee is caring for a son or daughter due to school or child care closure due to COVID-19 precautions
  • Employee is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor

The Paid Sick Leave Act applies to all public employers and private sector employees with less than 500 employees. Full time employees are entitled to eighty (80) hours of paid sick time. A part time employee should be paid the number of hours that the employee works on average over a two-week period.

There is a cap upon what employees are to be paid during this leave but, as a general rule, the employee is to receive required compensation of two-thirds of the amount of their usual pay.  However, in no case shall paid sick time exceed:

  • $511.00 per day (and $5,110.00 in the aggregate) if the employee is out due to:
    • Quarantine or isolation relating to COVID-19
    • Self-quarantine ordered by a health care provider
    • Employee is experiencing symptoms of COVID-19 and seeking medical diagnosis
  • $200.00 per day (and $2,000.00 in the aggregate) if the employee is out due to:
    • Employee is caring for individual who is quarantined or is in self-quarantine
    • Employee is caring for a son or daughter due to school or child care closure due to COVID-19 precautions
    • Employee is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor

Employers are to receive a tax credit for payments made to employees under this law. Moreover, employees may opt to use other forms of paid leave instead of this leave but the employer cannot require that use.  

If you are a business with 50 or fewer employees, you may ask the DOL to exempt you from following this law if compliance will jeopardize the viability of the business as an on-going concern.  The United States Department of Labor recently issued a guidance on what an employer must show to meet these requirements to obtain a potential exemption. The Department of Labor also has the discretion to exclude health care providers and emergency responders from eligibility.

EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT

This new federal legislation expands eligibility for FMLA leave to accommodate employees who are unable to work or telework due to a need to care for a child under 18 years of age if school or daycare is closed due to a public health emergency. Private sector employers only need to comply with the Act if they have less than 500 employees. All public employers must comply with the Act. Employees who were eligible for FMLA as of April 1, 2020 are eligible for leave under the expansion. Employees are eligible to use this leave if they have worked for the employer for 30 calendar days.

The first ten days of this expanded family leave is unpaid. An employer may substitute paid time off or other sick time during this period, but an employer may not require an employee to do so. (If an employee qualifies for leave under the Emergency Paid Sick Leave Law he/she can substitute this leave for the first two unpaid weeks of emergency family leave.) After the first ten days, employees must be paid at a rate of no less than 2/3 of an employee’s usual rate of pay. However, this payment is capped at $200.00/day, not to exceed $10,000.00. Employers are entitled to a tax credit for any payments made to employees in compliance with this Act.

Consistent with traditional FMLA, the paid emergency leave is job protected. There are exceptions, however. Employers with less than 25 employees may be exempt. If an employee’s job no longer exists due to the coronavirus pandemic, an employer must make efforts to restore the employee to an equivalent position over a one year period.

Also, employees are subject to the usual rules on limitation of available FMLA time. Meaning that the expanded leave does not add any additional time for an employee who has already exhausted his/her available FMLA prior to the effective date of the emergency expansion law.

The USDOL has the discretion to exclude health care providers and emergency responders from eligibility. Moreover, if you are a business with 50 or fewer employees, you may ask the USDOL to exempt you from following this law if compliance will jeopardize the viability of the business as an on-going concern.  The USDOL recently issued guidance on what an employer must show to meet these requirements to obtain a potential exemption.

DOL ENFORCEMENT

Consistent with a U.S. Department of Labor Field Assistance Bulletin dated March 24, 2020, in an effort to enable public and private employers to come into compliance with the FFCRA, the USDOL has placed a moratorium on enforcement of the Act until April 17, 2020. The USDOL will not bring enforcement actions against any public or private employer provided that the employer has made reasonable, good faith efforts to comply with the Act. This moratorium applies to the entirety of the FFCRA, including the Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

If you have any questions about these expanded leaves or need advice on how to comply with leave requests, feel free to contact a member of the firm’s Labor and Employment department. We are still here assisting clients during these difficult times, and remain just an email or cell phone call away.

COVID-19: What Can An Employer Do?

As many businesses are temporarily shutting down due to Governor Murphy’s closure order here in New Jersey, what can those other employers do who remain open to help safeguard against COVID-19 infestation of its workplace. Well, the answer might surprise you thanks to a recent guidance from the Equal Employment Opportunity Commission (“EEOC”).

Under this EEOC Guidance document on the ADA and the COVID-19 virus, several measures are outlined that employers can use to protect its workplace. Along with stressing the need to follow good hygiene practices as recommended by the CDC, ADA-covered employers during a pandemic like ours may additionally ask employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must however maintain all information about employee illness as a confidential medical record in compliance with the ADA. Also, while generally measuring an employee’s body temperature is a medical examination, because the CDC and state/local health authorities have acknowledged community spread of COVID-19, and issued attendant precautions, employers may also measure employees’ body temperature without running afoul of any legal requirements. (However, note of caution: be aware that some people with COVID-19 do not have a fever.) Finally, you can also direct persons with symptoms of the virus to go home and leave work or just stay at home if they have any sickness at all.  The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. Significantly, the ADA does not interfere with employers following this advice, and many of my employer clients are regularly telling employees this to get that message out about staying home.

So, you can certainly be proactive in guarding your workplace consistent with the above guidelines. And given the serious public health crisis that now exists, I suspect even the New Jersey Department of Labor will have no issue with employers who follow this ADA guidance, so long as confidentiality is preserved relating to the receipt of employee medical information.

Please everyone out there be careful and stay safe during these trying times.  We will collectively get through this together if we just act smart and do all that can be done to keep our workplaces safe when continuing to operate.

Be Warned About NJ WARN

Employers already know that, anytime a mass layoff or plant closing is contemplated, there are significant federal and New Jersey state law notice requirements. This past January, 2020, Governor Murphy signed into law a radical legislative amendment to the New Jersey WARN Law (known officially as the “Millville Dallas Airmotive Plant Job Loss Notification Act”) that makes it the most costly and burdensome reduction in force law soon to be in force in the United States.

Beginning on July 19, 2020, the following drastic changes will be effective under the newly revised New Jersey WARN Law.

  1. The New Jersey WARN Law will be triggered by a termination of 50 or more employees, regardless of employee tenure or hours worked, and with the aggregation of all terminations across the state, no matter where in the state the termination occurred.  Under this change, no longer will employers be able to ignore part-time employees in calculating the threshold number for coverage, and coverage is no longer limited by looking at only a single site of employment. The amendments also eliminate the previous requirement under the statute that a mass layoff would only occur if at least 33 percent of a workforce was affected.
  2. The required notice period under the NJ WARN Law will be 90, and not the current 60 days.
  3. Severance Pay will be automatic! This is the most radical of the changes made to the New Jersey WARN Law.  Under the current law, severance pay was only required if the employer failed to provide the necessary 60 days’ notice. When the revised New Jersey WARN Law is triggered, employers must pay employees one week of severance for each year of employment!  Where the employer has failed to meet the Law’s notice requirements, the severance obligation requires an additional payment of four more weeks on top of what is already statutorily required.
  4. Under the revised Law, the above required severance payments cannot be waived without state or court approval. So, any settlement of contested New Jersey WARN Law claims will need to receive either Court or state agency approval.
  5. The coverage of the New Jersey WARN Law has been expanded to include all employers with at least 100 employees, regardless of employee tenure or number of hours worked. Previously, employees with either less than six months of service, or who worked less than 20 hours per week, could be excluded from this threshold calculation.  No more. The part of the Law that requires that an employer be in operation for at least three years thankfully remains unchanged.

In light of these sweeping changes to the NJ WARN Law, employers will now need to proceed with even greater caution when contemplating a possible plant closing, mass layoff, or even just a significant layoff. Employers must be aware of and adhere to these new requirements, especially those involving the timing for issuing the required notice and the making of required severance payments. Special precautions must also be followed when seeking a release of claims in connection with any type of covered reduction in force. When the New Jersey WARN Law is applicable, the employer will now have to pay employees more than just the statutorily required amount of severance to obtain an effective release of claim. This is because, to obtain a legally effective release, the employee must be given something by the employer beyond what an employee is already legally entitled to receive.

So, you have now been warned about the amended New Jersey WARN law! Please take these precautionary words to heart!

 

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

US Department of Labor Announces New Overtime Rules

Just a few years ago, employers were preparing to follow what were to become new overtime rules that were going into effect near the end of the Obama administration.  Those rules were sidetracked by an unexpected court ruling that struck the new rules down and declared them to be unenforceable. Since that time, employers have been waiting on what, if anything, the United States Department of Labor (“USDOL”) would do with this issue with a new administration in power in Washington, D.C. We received that answer this week on September 24, 2019 when the USDOL promulgated new final rules that will apply to overtime eligibility determinations starting in 2020.

The new provisions update the Fair Labor Standards Act’s (FLSA) regulations and minimum salary thresholds needed for executive, administrative, and professional employees to be exempt from overtime. These final rules will go into effect on January 1, 2020.

Here are the changes that are being made by the new rules:

  • The standard salary threshold for classifying an employee as exempt from overtime increases to $684 per week ($35,568 annually), up from $455 per week ($23,660 annually).
  • The minimum salary threshold for the Highly Compensated Employee (HCE) exemption increases to $107,432 annually, up from $100,000.
  • Nondiscretionary bonuses, incentive pay, and commissions, may make up to 10 percent of this standard income threshold, as long as they are paid at least annually.
  • Special salary levels for workers in United States territories and the motion picture industry will be revised.

So, what should employers do while waiting for the new rules to go into effect?  Like many employers did when the overtime rules were expected to change during the Obama administration, employers should conduct an audit of its workforce and determine how these regulations might affect your current payroll practices. It is believed by the USDOL that, due to these new regulations, an additional 1.3 million employees will be now eligible for overtime. Therefore, if you have employees who were classified as exempt because of their meeting the older salary test standard, employers will now need to decide if they want to raise what those employees are being paid to the higher 2020 salary level to maintain the exemption or reclassify those employees as non-exempt moving forward.

 

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

New Jersey’s Groundbreaking New Wage Anti-Theft Law

In the past, employees who believed that they were not properly paid in line with minimum wage and overtime pay requirements under New Jersey’s wage payment law could either bring a lawsuit in state court or file an administrative claim with the New Jersey Department of Labor to recoup unpaid wages. Many politicians and leading legal activists have dubbed an employer’s failure to properly pay employees owed wages as “wage theft,” and vociferously campaigned for stricter enforcement laws to benefit employees in their quest to fight such “wage theft.”  On August 6, 2019, new legislation was passed, giving employees here in New Jersey new legal tools to fight against this claimed “wage theft,” and then some.

On that date, New Jersey’s Acting Governor Sheila Oliver signed a new anti “wage theft” law that drastically expands the fines, penalties, and damages to be imposed for violations of the state’s wage payment law, and similarly extends the statute of limitations for bringing such claims from two to six-years. The new law takes effect immediately. These changes are groundbreaking and require employers to take prompt actions to audit payroll practices to ensure that these significant new legal requirements are not applied adversely against your company.

Expanded Civil and Criminal Penalties

One of the most important changes made by the new law is the availability of liquidated damages for wage payment violations. Violators are now required to pay the wages owed to the employee plus liquidated damages equal to 200% of the wages owed. Liquidated damages can be avoided, however, for a first time violation if the employer can show that (a) the violation was an inadvertent error made in good faith, (b) the employer had reasonable grounds for believing that the payroll action taken was not a violation of wage and hour requirements, and (c) the employer acknowledges the violation and pays the wages owed within 30 days of the notice of violation. In addition to the possible awarding of liquidated damages, the new law also sets fines of $500 and 20% of the owed wages for a first offense. Fines increase to $1,000 and 20% of the owed wages for each subsequent offense. Additional administrative penalties up to $250 for a first violation and $500 for each subsequent violation can likewise be assessed by the New Jersey Department of Labor and Workforce Development.

In addition to employer civil fines, penalties, and civil damages, the law similarly allows for the imposition of criminal penalties. Significantly, any corporate officer or employee responsible for the wage payment violation commits a disorderly person’s offense. A first violation comes with a fine of $500 to $1,000 or jail time of 10 to 90 days, or both a fine and jail. For subsequent violations, the fines can range from $1,000 to $2,000 and jail time could be imposed from 10 to 100 days. Thus, the law expressly allows for the simultaneous imposition of both a fine and jail time. Employers who violate the bill three or more times are deemed to be guilty of a new third-degree crime of “pattern of wage nonpayment.” Also, in a first in wage collection matters, employees who bring suit can now recover both reasonable attorneys’ fees and costs against the offending employer in having to file a wage collection claim.

The law likewise opens the door for expanded New Jersey Department of Labor and Workforce Development wage and hour payment audits. Under the law, employers may be made subject to a wage payment audit as an alternative to, or in addition to, any of the above referenced sanctions. If that audit ultimately reveals additional violations, the employer and corporate employees involved in the wage payment violation may likewise be subject to additional fines, penalties, damages, and jail time, as well as additional audits. The New Jersey Department of Labor and Workforce Development is also similarly granted the express authority to issue a stop work order or permanently revoke an employer’s operating licenses for repeat violations.

Strict Anti-Retaliation Protection

Along with its expanded civil and criminal penalties, the act also contains very strict anti-retaliation protections for employees who file wage claim complaints. In a drastic change from prior law, it will now be presumed that retaliation has occurred if an adverse action is taken against an employee within 90 days of the filing of a wage complaint. Retaliation against an employee who files a wage payment complaint also subjects a corporate employer to a disorderly person’s criminal offense and the potential imposition of employer fines in the range of $100 to $1,000, plus payment of wages lost as a result of the retaliation and liquidated damages of 200% of the wages lost.

In addition, if an employee is discharged in retaliation for filing a wage payment complaint, the employer is required to offer reinstatement, unless prohibited by law, along with all lost wages as a result of that discharge, which likewise is a quite radical change in how the law operated previously.

Other Prominent Legal Changes

The law‘s coverage is quite broad and is not just limited to failure to pay wages. It applies to both the failure to pay compensation and benefits, which includes health benefits, pensions, medical treatment, disability benefits, and workers’ compensation. In addition to the expanded scope of what is covered under the law, an employer’s failure to provide sufficient employee records in response to an employee’s wage claim now results in a rebuttable presumption that the employee worked for the employer for the period of time asserted and for the amount of wages alleged in the employee’s claim.

Moreover, as part of its incredible expansive approach, the new law similarly imposes joint and several liability on both an employer and a labor contractor providing workers to the employer. This liability cannot be waived or contractually shifted from the employer to the labor contractor.

Finally, in what will likely be deemed a quite controversial aspect of the new law, violations and names of violating employers will be made public on a government website.  Employers will also be required to provide new hires and employees with a written copy of a statement of their rights under New Jersey’s wage-and-hour laws, and an explanation of how to file a claim or take other action in the event of an alleged violation, which is one more added responsibility that applies to orienting new employees to a company.

Next Steps for Employers

As the instant summary shows, the legal modifications made by this new law to the wage collection process are game changing and should concern all employers moving forward.  At a minimum, employers must start internally auditing its payroll practices to ensure that employees are being properly paid and are correctly classified to avoid possible overtime payment violations. Thus, in light of this new law, employers must be even more proactive in keeping in step with wage and hour compliance, and obtaining effective legal advice will help employers meet such requirements in this always changing New Jersey legal environment.

 

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

Capehart Blogs

Insurance
Bicyclists Covered by Auto Insurance with Limited Tort Must Establish a Permanent Injury to Sue for Pain and Suffering
Firm News
Shareholder Claire Ringel Retires
Liability
Municipality Found Immune From Liability for Pedestrian Accident Under Both Tort Claims Act and Landowners’ Liability Act
Subscribe to Blog Updates

Capehart Blogs

Tags
Alternative Energy Alternative Energy - Solar Alternative Energy - Wind Appellate Division automobile accident automobile insurance Burlington County Bar Association Cannabis Law Charity constructive notice coverage discovery dismissal Diversity & Inclusion Diversity & Inclusion Committee duty of care employees employers Employment Law evidence insurance Liability Litigation Litigation Quarterly Lorman Millennium Seminars NBI negligence New Jersey Workers' Compensation Act New York Law NJ Law notice Pennsylvania Law personal injury Public Entity Newsletter Real Estate and Land Use school law slip and fall statute of limitations summary judgment Taxes Tort Claims Act trip and fall Workers' Compensation Workers' Compensation Newsletter

Contact Information

  • Capehart Scatchard P.A.
  • (856)-234-6800
  • 8000 Midlantic Dr., Suite 300S, Mt. Laurel, NJ 08054-5016