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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.
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Employers Need to Consider NJ Pay Equity Law When Evaluating Employee Pay Practices

Background

The Diane B. Allen Equal Pay Act, one of the most pro-employee equal pay laws in in the nation, took effect on July 1, 2018. The law expands the already broad and expansive New Jersey Law Against Discrimination (“NJLAD”) by strengthening protections against employment discrimination and pay inequity.  Though many think the law only requires employers to pay women and men the same for equal work, the Act goes far beyond addressing gender-based wage disparities and applies to all members of a protected class performing “substantially similar work, when viewed as a composite of skill, effort and responsibility.”   The NJLAD defines a member of a protected class as “an employee who has one or more characteristics, including race, creed, color, national origin, nationality, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or liability for service in the armed forces.”  Simply, the law creates a cause of action against employers that pay an employee, who is a member of a protected class, less than the rate paid to employees who are not members of the protected class.  In view of the broad range of characteristics and expansive interpretation of such characteristics under NJLAD jurisprudence, the law could apply to a significant number of employees within an employer’s workforce.

Factors that May Justify Disparity in Pay

The new law does provide limited instances where employers may pay employees differently for similar work if the employer can show that it was based on a “seniority system” or “merit system, or if the employer can establish the following criteria:

  1. the pay differential is based on one or more legitimate, bona fide factors, such as training, education or experience, or the quantity or quality of production;
  2. the factors are not based on, and do not perpetuate a differential in compensation based any protected characteristic;
  3. each of the factors is applied reasonably;
  4. one or more of the factors account for the entire wage differential; and
  5. the factors are job-related with respect to the position in question and based on a legitimate business necessity(ies).  However, a factor based on business necessity would not apply “if it is demonstrated that there are alternative business practices that would serve the same business purpose without producing the wage differential.”

 

Expanded Anti-Retaliation Protections under the NJLAD

The law also extends the anti-retaliation provisions under the NJLAD to this newly created equal pay cause of action. Previously, the NJLAD only prohibited an employer from retaliating where the request from a current or former employee was for the purpose of investigating or taking legal action regarding discriminatory compensation.  The new law now prohibits retaliation against employees for “requesting from, discussing with, or disclosing to, any other employee or former employee of the employer, a lawyer from whom the employee seeks legal advice, or any government agency” pay information. Such information includes but is not necessarily limited to job title, occupational category, rate of compensation, including benefits, and the gender, race, ethnicity, military status, or national origin of the employee or any other employee or former employee, regardless of whether the employee receives a response.

Expanded Damages and Limitations Period Under NJ’s Pay Equity Law

The law’s provisions for back pay damages are also more extensive than federal law and allows employees to recover treble damages if they can show they were discriminated against on the basis of pay, if they were retaliated against for raising the issue of pay disparity to an employer or other employees, or if they were required to waive their rights to complain about pay disparities.  The law provides for punitive damages if a court finds that an employer’s conduct was willful.  Finally, the statute of limitations for pay equity violations under the law was extended to six years.  The expanded statute of limitations provides that the limitations period restarts each time “an individual is affected by application of a discriminatory compensation decision or other practice,” including each time the individual receives compensation that results, in whole or in part, from a discriminatory decision.  It is also now an unlawful employment practice to require employees or prospective employees to “consent to a shortened statute of limitations or to waive any of the protections” provided by the LAD.

Additional Reporting Requirements for State Contractors

The statute also contains a mandatory reporting requirement for any employer entering into a contract with the State of New Jersey (“State”) or an agency or instrumentality of the State for “qualifying services” or “public works”.  Contracting employers must provide the New Jersey Department of Labor and Workforce Development (“NJLWD”) – upon commencement of the contract – wage and demographic data for all employees who are employed in connection with the contract (for public works) and for all employees (for qualifying services). Simply, any employer, regardless of location, who enters into a contract with the State or any agency or instrumentality of the State qualifying services or public work must file a report with the NJLWD.  For employers filing Reports for Qualifying Services, Reports must be submitted annually by March 31 for the preceding year, using employment figures from any pay period in October through December. For employers filing Reports for Public Works Projects, Reports must be submitted weekly.

Going Forward

As New Jersey’s new law is one of the most expansive employee pay equity protections enacted to date, it is more important than ever for employers to consult with legal counsel to take proactive steps, including review of your compensation records and systems to identify positions where there is potential unequal pay for substantially similar work and determine whether that pay discrepancy is warranted based on one of the recognized justifications. This should also include working with counsel to review compensation policies and job descriptions to ensure that differentiation in pay is based on a defensible factor and maintain data on how these factors informed compensation decisions.

For more information regarding the impacts of this Law, determining applicability of reporting requirements to your organization, and how to implement nondiscriminatory pay practices please contact William R. Burns, Esq. at wburns@capehart.com or Primitivo J. Cruz, Esq. at PCruz@capehart.com.

What Summer HR Projects Do You Have Planned?

Now that the warm weather is upon us and things are “slowing down” due to vacations, it’s a good time to sit back with a cool drink and carefully evaluate whether our HR practices are “up to snuff.”  If the answer to any of the following questions is “no,” your company may be risking costly complaints, investigations, litigation, and maybe even fines and penalties.

Are we implementing the recently-enacted New Jersey “Equal Pay Act?” Beginning July 1st, New Jersey’s Law Against Discrimination (“LAD”) will prohibit “pay gaps” among all protected classes covered under the law. While this law is generally intended to “fix” gaps in gender pay, the new law makes it illegal for employers to treat those in protected classes differently in terms of compensation including among others, those classes based on race, creed, color, national origin, nationality, age, pregnancy, and gender identity or expression.  You should carefully review your pay structures and seek professional advice on this new law to ensure that your company does not have unjustifiable (which is extremely fact-sensitive) discrepancies in pay among those in protected classes who perform the same work.

Are we prepared to implement the new Paid Sick Leave Law? Beginning October 29th, employers of all sizes are required to provide up to 40 hours of paid sick leave per year (one hour of sick leave for every 30 hours they work) to most employees. The allowed use of these sick days for the conditions of employees, family members, and others is very broad.  Also, “stay tuned” for new State regulations addressing implementation and enforcement of this law.

Have we recently updated our Employee Handbook/Policy Manual? An updated and accurate handbook/manual is a critical component of a company’s “HR infrastructure.” It not only keeps employees up to date on what your policies are, but it protects your company if it’s updated regularly, makes your policies clear (e.g., workplace violence will result in immediate termination) and includes the appropriate “at-will” employment disclaimer. Don’t delay this project another day!

Do we know how to address our employees’ use of medical marijuana?  In the first instance, make sure your drug and alcohol policy is updated and clear about what your policies are. While an employee’s use of prescribed medical marijuana may be a violation of your policies, employers are advised to proceed with caution in addressing these issues. The law in this area is evolving and may implicate other issues (like protection under the Americans with Disabilities Act).

Are we really sure that our “salaried” employees are not eligible for overtime? Federal and State laws are very strict about who is and who is not entitled to overtime.  The Days of Summer are an opportune time to conduct an FLSA (Fair Labor Standards Act) review of your so-called “salaried” positions to ensure that your employees (even if you call them “managers” or “confidential”) are appropriately classified and that you won’t be subject to back overtime pay, taxes, and penalties.

Do we conduct regular and accurate employee evaluations?  Performance evaluations are perhaps a supervisor’s least favorite chore. However, when done regularly and accurately, they serve as a valuable tool in rewarding performance and, as important, in addressing disciplinary measures. In employment termination litigation, the first question usually asked is, “Let’s see his/her performance evaluations!”  This is an HR issue that can’t be ignored!

Do we fully understand how to manage the FMLA and the ADA?  Dealing with the Family and Medical Leave Act and the Americans with Disabilities Act are serious challenges for employers. Is my employee entitled to FMLA? Can she take leave for one or two days every week? What type of accommodation do I have to make if he has a disability? Do I have to create a new job for him? These and other factual and legal questions puzzle employers each and every day.

Have we conducted harassment and supervisory training this year?  No matter how hard we try, employees are going to continue to “push the envelope” with inappropriate behavior in the workplace.  To protect ourselves, we need to ensure that our employees are trained on harassment and discrimination and that our supervisors are not only trained as well, but know precisely how to address discovered or reported harassment. As a company, this may be your “first line of defense” in a harassment or discrimination lawsuit.

What’s the take-a-way??  The best way to avoid costly and burdensome lawsuits, complaints, and even Federal or State investigations, fines, and penalties is to be the company that doesn’t have a “catch me if you can” attitude. Rather, be the company that takes the time to “look in the mirror” and ask for professional help to ensure that it has a culture of compliance to avoid workplace violations.

Ooooh That Smell, The Smell that Surrounds (Your Employees?)

For fans of the rock band, Lynyrd Skynyrd, forgive my modification of the lyrics to one of the band’s most iconic songs, but it perfectly captures a moment I experienced recently fielding one of the more interesting counseling questions that I received from a client this year.

The client wanted to know whether it could demand that an employee, who regularly came into work smelling bad and always in an dirty work uniform,“ clean up his act” and present to work with better hygiene because other employees were complaining about the employee’s offending body odor.  It was a great question because it got me thinking: sometimes employers forget that, in establishing job and work performance expectations, professional appearance requirements can be set as well.  Employers have every right to expect that employees will present themselves at work in a neat and clean fashion so that a desired professional image is projected to customers and other employees working in the organization.

The law allows employers to set attire and grooming rules which reflect the type of professional image that the employer wishes to project to the public, their employees, and to their potential clients.  Most (if not all) of the employee handbooks that I either prepare or review will include some type of grooming and/or attire policy, and the handbook is a great place to let employees know what the requirements will be on those issues.  So long as such rules are applied across the board, and no favoritism is shown (to some but not all) employees who violate such policies, these rules are legally valid and provide an effective way of eliminating situations where employees treat personal hygiene issues below the standards desired of the employer.

If you as an employer discover a potential violation of such a policy, it can be easily corrected by disciplining the employee simply by sending them home to correct the problem. Multiple infractions can justify harsher sanctions.

As referenced above, while an even handed application of such a policy is important, accommodations will sometimes need to be made for other legal reasons (i.e., allowing someone to grow a beard for either religious or health reasons because of skin problems associated with shaving.) Nevertheless, those situations can be addressed on a case by case basis, and should never stop an employer from implementing hygiene, grooming, and attire rules where an employer wishes to ensure that employees consistently maintain a professional image.

Accordingly, if your company does not have such policies, you should draft them now so if you are ever faced with a hygiene issue, your tool for resolution of the problem is already at your fingertips.

Hopefully, the next time you hear a reference to “That Smell,” it will be blasting out of your car radio, and not from an employee complaint about a colleague’s body odor.

Preparing for New Jersey’s Earned Sick Leave Law

On October 29, 2018 New Jersey’s Earned Sick Leave Act will go into effect.  This new law will impact almost every employer with workers in New Jersey and businesses should begin preparing now to ensure your policies and practices are compliant with the law.

Covered Businesses and Employees

The coverage of the law  is broad.  It applies to any business entity that has employees in the state of New Jersey without regard to the size of the business’ workforce, including temporary services firms. It also applies to most employees working in New Jersey who work for compensation.  However, the law does have limited exceptions including exclusions for public employers that are required by law to provide sick leave to their employees, per diem healthcare employees, public employees with existing sick leave benefits and construction industry employees working under a collective bargaining agreement.

The law goes on to prohibit and preempt New Jersey municipalities from enforcing their own ordinances for earned sick leave, which includes the 13 municipalities who enacted their own earned paid sick leave laws over the past few years: Bloomfield, East Orange, Elizabeth, Irvington, Jersey City, Montclair, Morristown, Newark, New Brunswick, Passaic, Paterson, Plainfield and Trenton.

Accrual of Sick Leave

 Employees will begin accruing sick leave time on the effective date of the law.  An employee then accrues up to forty hours of sick time at a rate of one hour for every thirty hours worked.  Employers can choose to frontload the full 40 hours at the beginning and employers with existing paid time off may utilize those policies to satisfy the Act’s requirements. It is important that employers review their vacation, personal time and sick day policies with a labor and employment counsel to ensure they are compliant with the law.

Following enactment, employers are required to designate a period of 12 consecutive months as its benefit year for purposes of implementing the law and can only change their established benefit year after first notifying the New Jersey Department of Labor and Workforce Development.  Further, for employees hired after the effective date of the law, benefits will begin to accrue immediately and they will be eligible to use the leave after 120 days.  However, employers may agree to an earlier date.

Using Time and Carryover

Employers would be permitted to require employees to provide up to seven days notice of the intended use and the expected duration whenever the need for sick time is “foreseeable” and employees would be required to make a “reasonable effort” to schedule the time off so it does not “unduly disrupt” operations.  However, the law would permit employers to prohibit employees from using foreseeable sick time “on certain dates” and to require specified documentation for unforeseeable sick time used during such dates. When sick leave time is not foreseeable, employers would be permitted to require notice “as soon as practicable,” so long as the employee has been provided notice of this requirement, such as in a legally compliant employee sick leave policy.  Further, employers are permitted to require “reasonable documentation” for sick time lasting three consecutive days or more, establishing that time was used for a permissible purpose.  The law sets forth what reasonable documentation is for the different types of sick time.

The law allows employees to use sick time for the following reasons:

  • Diagnosis, care, treatment, or recovery for an employee’s own health conditions, including preventive care
  • Diagnosis, care, treatment, or recovery for a family member’s health conditions, including preventive care
  • Circumstances resulting from the employee’s or family member’s status as a victim of domestic or sexual violence, including related counseling and court proceedings
  • Time the employee is unable to work because of the closure of an employee’s workplace or of a child’s school or place of care because of a public official’s order relating to a public health concern
  • Time to attend a school-related event as requested or required by school staff, or to attend a meeting related to the care of a child’s health condition or disability

Employers should note that the definition of family member under the Act is broad, including any individual “whose close association with the employee is the equivalent of a family relationship.”

The law provides employers with the discretion in setting the increments in which its employees may use accrued time, but the largest increment chosen may not be greater than the number of hours an employee was scheduled to work in a given shift. The law also requires that accrued, but unused, sick time up to forty hours be carried over from one year to the next, but also permits offering employees the option of selling back unused sick time at the end of the benefit year in lieu of carrying over the time into the next year.  However, employers are not required to “pay out” unused sick time at the time of termination under the new law.

Notice and Record Keeping

The New Jersey Department of Labor and Workforce Development is in the process of developing a notice that employers must post in the workplace and must also provide a copy of to their employees.  This notice must be provided to employees within 30 days of its drafting and new hires must be given a copy of the notice upon hire.  Additionally, employers must give an employee a copy of the notice upon request.  Employers must also retain records of an employee’s hours worked and sick leave taken for a period of five years and allow the Department access to those records upon demand.

Anti-retaliation Provisions

Like many other employee rights and worker protection laws, the law  includes an anti-retaliation prohibition, which establishes a rebuttable presumption of retaliation when an employer takes adverse action against an employee within 90 days after engaging in protected activity surrounding an employee’s rights or use of earned sick leave under the law.  However, the law permits employers to discipline employees that misuse sick time for purposes other than those permitted by the law.

Going Forward

As the law will go into effect on October 29, 2018, it is more important than ever for employers to consult with legal counsel to take proactive steps including  performing a thorough internal audit of HR policies and practices, to ensure they are in complete compliance with New Jersey’s Earned Sick Leave Act and have adapted their business practices when the law takes effect.

Will Medical Marijuana Users Soon Have Legal Protections in the New Jersey Workplace?

Get ready! Medical marijuana users in New Jersey may soon have new protections in the workplace.  Currently in New Jersey, employers have no strict obligation to accommodate medical marijuana users and employers may lawfully terminate an employee who fails a drug test, even if the use is medicinal.  Despite the current view in New Jersey, it seems that the tides are starting to change. For instance, Pennsylvania’s new medical marijuana law prohibits discrimination against an employee or prospective employee because he/she has a prescription for medical marijuana. The Pennsylvania law is silent as to whether or not a positive drug test can be the basis for termination in Pennsylvania.

New Jersey Governor Phil Murphy has also started to expand access to medical marijuana.  In an Executive Order in January 2018 Murphy called for a review of the State’s medical marijuana law and called for existing barriers to be eliminated for access to marijuana for conditions that are treatable by marijuana.  More recently, in March 2018, the New Jersey Governor increased the number of qualifying ailments for medical marijuana eligibility.  This list of qualifying ailments now includes broad categories such as chronic pain and anxiety.

Along with the legislative changes expanding eligibility for medical marijuana on the East Coast, a recent court opinion from Massachusetts, Barbuto v. Advantage Sales & Mktg., LLC, 477 Mass. 456, 78 N.E.3d 37 (2017), has employers wondering if sometime soon they are going to be required to accommodate medical marijuana users in the workplace.  In Barbuto, an employee sued her former employer after the employer terminated her because she tested positive for marijuana on a drug test. The employee claimed that she was wrongfully terminated because she was lawfully taking medicinal marijuana to treat her Crohn’s disease and that she was discriminated against due to her disability. The employer responded by stating that the company followed federal law, not state law and therefore, the employee’s termination was lawful. The Court rejected the employer’s argument and ruled that the plaintiff could sue for disability discrimination. The Court stated that the company must engage in the interactive process before deciding that accommodating medical marijuana would be an undue hardship.  The employer’s claim that it was following federal law was found to be irrelevant due to lack of consequences under the federal law to the employer if the company accommodates a medical marijuana user.

Even though Barbuto only applies in Massachusetts, it is worth reviewing because it is possible that it may become the basis for courts in other states to allow disability discrimination claims based upon medicinal marijuana to go forward. Moreover, this case may lead to new legislation in other states, including New Jersey, which could set forth new requirements for employers when deciding whether or not to accommodate an employee who lawfully receives medical marijuana.  Most recently Barrett v. Robert Half Corp., No. 15-6245, 2017 U.S. Dist. LEXIS 219116 (D.N.J. Feb. 21, 2017) a New Jersey employee tried to make a similar claim as the employee in Barbuto (handicap discrimination) but his complaint was dismissed because he never requested an accommodation from his employer. The New Jersey Court never reached the question of whether or not an appropriate accommodation may be allowing medical marijuana use outside of the workplace.

What does this mean to you?

Employers must pay attention and keep watching for changes in this area of the law. One possibility that employers may want to explore is excluding marijuana from the list of drugs that are tested for on company drug tests. This may not be possible for certain employers with safety-sensitive positions and certain government contractors, but others may want to begin thinking about this in order to avoid disability discrimination claims.

The Importance of Job Descriptions

Job descriptions are one of the most important tools in an employers’ toolbox, yet so many employers do not take job descriptions as seriously as they should.  Whenever I first meet with a new or potential client, one of my first questions is whether the employer has job descriptions for each job title in the workplace.  So many times, the employer will say no.  For those that tell me they have written job descriptions, many have not been updated or reviewed recently or the job descriptions are incomplete.

Job descriptions come into play in many aspects of the employment relationship.  For example, before an employment relationship even begins, job descriptions are used to create the advertisement for the open position.  Having an accurate and up to date job description allows the employer to provide potential applicants with detailed information regarding the duties of the open position as well as the qualifications required from applicants.  In fact, I generally recommend that employers provide applicants with a copy of the job description at the time of the interview so that the applicant can properly assess whether he or she can actually perform the duties of the position.   Job descriptions are also at the forefront of dealing with disability accommodation requests.  If you do not have a job description or the job description you have is inaccurate or incomplete, then medical providers will be forced to use only the information provided to them by the employee in providing an opinion, instead of having guidance from the employer regarding the essential functions of the job.  Additionally, job descriptions provide a roadmap to the employee regarding the employee’s duties and responsibilities in the workplace.  Failing to have up to date job descriptions can create issues with disciplining an employee for failing to perform the duties of the job.  Job descriptions also play an integral part in employee evaluations.  In fact, job descriptions are the guiding force in creating performance evaluations that will accurately assess how an employee is performing.

So where should employers begin?  First, an employer must identify each job title within the workplace.  Each individual job title should have its own written job description.  Second, the employer must evaluate the duties for each job title to assess the essential functions of the position as well as the secondary functions of the position.  Does the position require a lot of lifting (and how much)?  Does the position require bending and kneeling or climbing?  Would the employee need to travel for the position?  Are there any educational, licenses or certification requirements?    In many cases, speaking to supervisors and individual employees regarding what they do during their workday is helpful in the creation of an accurate and up to date job description.  Generally, it is also recommended that the job description contain a catchall that allows management to assign other duties not specifically listed and to indicate on the job description that management retains the right to modify the job description at any time.  Once the job description is complete, employers must have their employees sign off on their job descriptions, specifically, that they have read the job description and understand their duties.  A copy of the signed job description should be maintained in the employee’s personnel file.

Finally, employers should review job descriptions yearly to determine whether there have been any changes to the position, make any updates to the job descriptions that are necessary and have employees sign the new job description.

Love is in the Air, But Should It Be in the Workplace?

A question that I frequently receive in my practice is:  should a company implement any sort of dating policy for employees, or even go so far as to actually ban such relationships totally among its employees?

As hard as it might be to believe, it was not long ago when such policies prohibiting dating amongst employees were common in many workplaces. Over the years, with the recognition that employees are spending so much of their time at work today, employers began to acknowledge the practicalities that romantic relationships can often develop between employees spending so much of their waking hours around one another. Ultimately, most employers came to accept the realities of such workplace romances.

At their root, these prohibitory policies were designed to control (in some way) the potential damage that could occur to the “business” relationship between such employees if the romantic relationship fizzled and ended.  Such policies were also designed to eliminate the always thorny situation of a supervisor becoming romantically involved with a co-worker over whom there was supervisory responsibilities.  In today’s current business climate where we are seeing an increase in sexual harassment complaints, should companies bring those discarded anti-dating polices back as a further means of preventing possible harassment claims in the workplace?

As I frequently advise my clients, the difficulties of enforcing anti-dating rules in the workplace today make me question the wisdom of implementing an outright ban on such dating.  Nevertheless, employers are wise to adopt a policy alerting employees to the fact that, while workplace relationships are not prohibited, the company’s anti- harassment policy still applies to protect employees when romantic relationships are pursued by a co-worker that are unwelcome.  Employees should likewise be reminded that the right to say “no” is to be respected, and when it is not, there will be consequences under the Company’s anti-harassment policy. Finally, it is also beneficial for employers to let employees know that, in cases where there is a supervised-supervisor romantic relationship, the supervised employee will be reassigned to another supervisor in order to eliminate potential claims by other supervised employees of favoritism and the possible negative fallout and tension that could happen when the romantic relationship ends.

While it might be hard to stop romantic relationships from happening in the workforce, implementation of a sound dating policy can assist in controlling any negative impact that such relationships could have on your business.

Breastfeeding and Expressing Milk at Work: New Protections Under NJ Law

Most employers are aware that they cannot discriminate against an employee on the basis of pregnancy.  But what about the mother who returns from leave after having a child and continues to breastfeed and express milk? As of January 8, 2018, those mothers are now “protected” against discrimination in the workplace under a new law which expanded the New Jersey Law Against Discrimination to prohibit any type of workplace discrimination against women who breastfeed or express milk at work.

What Does the Law Say? The new law adds breastfeeding as one of the “protected classes” under the Law Against Discrimination, which were previously limited to pregnancy, sex, marital status, race, creed, color, national origin, ancestry, age, affectional or sexual orientation, genetic information, gender identity or expression, and disability, among others.

As an Employer, What Should I Do? In the first instance, employers are cautioned not to take ANY adverse employment action against an employee who is protected under the new law. Such actions may include demotions, transfers, and terminations. Second, employers should carefully review and update their employee manuals and handbooks to ensure that they are updated to include this new “protected class” and to ensure that supervisors and co-workers do not harass or discriminate against others for breastfeeding or expressing milk. Also, employers should consider designating a “private area” as described below.

Do We Have to Provide a Separate “Expressing Area”? The law requires that employers, “as an accommodation,” provide nursing employees with a suitable room or other location with privacy, other than a toilet stall, in close proximity to the employee’s work area, so that the employee can express breast milk for the child.

Are They Entitled to Extra Break Time? The short answer is “no.”  The law does not require employers to provide nursing mothers with extra break time. Rather, employers must treat a nursing mother’s breaks the same as any other employee’s and is not required to pay the nursing mother for their breastfeeding “breaks” unless the employee was already receiving compensation for that time.

Are There Any Limits to Employers’ Obligations? In fact, there are. Like all laws dealing with workplace accommodations, the law requires that the above accommodations be made unless the employer can demonstrate that providing the accommodations would impose an “undue hardship” on the  operations of the business.

How Do Employers Determine if an Undue Hardship May Exist? This is where employers need to be very careful and consider seeking professional advice. Whether an undue hardship exists is “fact sensitive” and includes factors such as the number of employees in the business, the number and type of the employer’s facilities, the employer’s budget, type of operations, composition and structure of workforce, nature and cost of the accommodation, and whether granting the accommodation would involve the employee’s not being able to perform an essential function of her job.

What if the Accommodation Simply “Costs too Much”? Again, this is where employers should heed the advice that “forewarned is forearmed.”  This means that there are legions of court and agency decisions that suggest that while the cost of an accommodation may be a factor in determining whether an undue hardship is presented, cost alone may not be “enough” to deny the accommodation. Again, other factors, described above, should be identified, analyzed, and considered in the “formula” as to whether an undue hardship may be presented by the employer’s accommodating a request under the new law.

How Tax Reform May Impact Sexual Harassment Lawsuits

It is no secret that sexual harassment and the prevention of same in the workplace has become an increasingly popular topic. In response, businesses have started to take a closer look at their anti-harassment policies and how they are enforced.  Interestingly, lawmakers have also become focused on this issue and have now included a provision regarding sexual harassment settlements in the 2018 tax reform law.

Previously, settlements and legal fees were almost always tax deductible by businesses.  The 2018 tax reform legislation includes a provision that states that any settlement for sexual harassment claims, which contains a confidentiality or non-disclosure provision, will not be tax deductible.  Moreover, any legal fees related to the settlement of a harassment suit, where a confidentiality provision is included in the settlement agreement, will also be excluded from any type of tax deduction.

So what is the purpose behind this new rule? It seems to be to discourage the use of confidentiality clauses in sexual harassment settlements. Rumor has it that many powerful people in the entertainment industry, including Harvey Weinstein, have settled various sexual harassment claims over the years but these settlements have not been made public due to confidentiality provisions.  Are confidentiality provisions another way for perpetrators to hide their bad acts so they can continue acting inappropriately? Lawmakers think so.  Lawmakers hope that this new tax provision will make sexual harassment settlements more public, which will incentivize businesses to take a harsher stance on sexual harassment in the workplace.

Although this new tax provision seems like a good idea, it could create problematic consequences.  It’s possible that this provision will discourage settlements of sexual harassment cases, despite the strong public policy favoring settlements.  A business may be more inclined to go forward with trial because payment of litigation costs, attorney’s fees and judgments resulting from trial will be tax deductible. It’s also possible that this new provision will incentivize businesses to lower their settlement offers to offset the fact that the settlement fee will not be tax deductible.

Moreover, the language of the tax reform provision brings about many questions. Does this provision only apply to claims where sexual harassment is the sole complaint? What if an employee files a claim for sexual harassment but also includes claims of discrimination and retaliation? Would a settlement of those claims, with a confidentiality provision, preclude a tax deduction?  Will there need to be proof that the sexual harassment actually occurred before any settlement can be entered into in order to determine tax consequences? Will plaintiffs in a sexual harassment suit be able to take tax deductions for legal fees he/she paid if a confidentiality provision is included in a settlement? The answers to these questions are not yet clear.

As this new tax provision is put into practice, it will be interesting to see what impact it has, if any, on sexual harassment in the workplace. The hope is that making it costlier to hide sexual harassment might make it less common in the workplace.

Does Transferring a “Disabled” Employee to Another Job Violate the N.J. Law Against Discrimination?

Answer: “Not necessarily,” said two Appellate Judges in Brancaccio v. City of Hackensack issued on December 5, 2017.

So What was the Claim?

Bryan Brancaccio, a full-time firefighter in Hackensack, was originally assigned to work “platoon work” where he responded to scenes of fires wearing fire equipment and performed the tasks necessary to extinguish fires. After it was determined that he had a disability, he was assigned to another job as a fire inspector, at the same rate of pay, where he would not have to actively fight fires. Brancaccio claimed that the Department discriminated against him based on his disability or perceived disability by reassigning him to a different job.

What are the Facts?

During one of Brancaccio’s shifts, a Deputy Fire Chief noticed him sitting on the front bumper of a fire truck, “gray” and “appearing to have discomfort in breathing.”  It was also determined that he needed “100% oxygen.”  The Chief didn’t immediately reassign Brancaccio, but agreed with him that if he became ill while working, he would report his condition to his supervisor so appropriate action could be taken (request an ambulance, etc.). Shortly after that, Brancaccio and other firefighters took a required pulmonary function test, which determined that Brancaccio could not wear a respirator required to be worn by all firefighters doing “platoon work” (i.e., regularly fighting fires).

Action Giving Rise to Claim of Discrimination:

In response to his “failing” the pulmonary test, the Chief determined that Brancaccio was disabled and reassigned him to the “fire prevention” bureau where he would not actively fight fires. His salary was unchanged, although he argued that he would lose significant overtime available to those who actively fight fires.

Did the Chief Discriminate Against Him?

“No,” said the courts. While Brancaccio was clearly disabled or perceived to be disabled, he also needed to show that his perceived disability led to an adverse employment action. He failed to do so, held the courts, saying that he didn’t suffer any adverse employment action because he “continued to earn the same salary as firefighters assigned to platoons, and he also received an additional $1500 stipend.”  Significantly, the Court noted that “a job reassignment, with no corresponding reduction in wages or status, is insufficient to qualify as an adverse employment action.”

What if Brancaccio Provided “Cold-Hard” Proof that He Would have Earned Overtime?

Perhaps that might have helped his cause with the Court, but it probably wouldn’t have made a difference, since the Fire Department showed that they were experiencing a significant backlog in fire inspections and had a critical need to have experienced fire inspectors (like Brancaccio) to keep the city safe. Thus, the Court held, Brancaccio did not show that the City’s continuing to use him as a fire inspector was a “pretext” for discrimination.

What’s the Take-A-Way Here?

As a threshold matter, employers must be careful in the treatment of those with disabilities or perceived disabilities and must ensure that if they take any action with respect to the employee’s job, that it is not “adverse.”  The problem: what amounts to “adverse action?” Know that each case is fact-specific and may result in a claim of discrimination if a careful and thoughtful analysis is not conducted.  If your entity is faced with a situation like the one faced by Hackensack, you should consult your labor and employment counsel to attempt to avoid a “fire in your house.”

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