Employment Law Alert

Employment Law Alert

News and Updates on Employment Law

Gibbons Employment Article Featured on Cover of The Metropolitan Corporate Counsel

Posted in Employee Benefits, Employment Agreements, Family Leave

Five New Year’s Resolutions for Employers,” written by Employment & Labor Law Department Directors  Kelly Bird and Carla Dorsi, was the featured cover story in this month’s The Metropolitan Corporate Counsel. The article outlines the following five employment practices for clients to focus on in 2015.

  • Resolution #1: I will review my company’s arbitration agreements.
  • Resolution #2: I will examine my company’s hiring practices, from job postings through background checks.
  • Resolution #3: I will ensure my company’s paid time off policies and practices are compliant with paid sick leave laws.
  • Resolution #4: I will rethink my company’s policies and practices concerning pregnant employees.
  • Resolution #5: I will equip my employees with the knowledge and ability to comply with and enforce my company’s policies and our legal obligations.

Click here to read the full article.

Businesses Look to Slam Brakes on “Quickie” Election Rule

Posted in Labor

The United States Chamber of CommerceCoalition for a Democratic Workplace, National Association of Manufacturers, and Society for Human Resource Management have filed a lawsuit in federal court against the National Labor Relations Board seeking to enjoin a final “quickie” election rule that the Board issued last month. The rule, which seeks to expedite the union election process, will negatively impact businesses that do not have proactive labor relations programs in place by effectively stripping them of their statutory and constitutional rights to speak to their workers about labor unions before an election. Absent a postponement, injunction, or some legislative action that trumps the rule, the rule will take effect April 15.

The lawsuit is just the latest chapter in the quickie election rule saga, whose long and tortured history dates back to 2011, 2012, and 2014. The new rule alters the union election process in numerous ways, but most notably by:

  • Expediting Elections. Under the current rule, there typically is a six to eight week period between the filing of an election petition and the election. Although less than ideal, many businesses often address unionization with their work forces only after receiving an election petition and they use the 42 to 56 days to educate their employees about unions so that they can cast an informed ballot come election day. The new rule can drastically reduce the time between the filing of the petition and the election to as little as 14 days, significantly reducing the ability of an employee to cast an informed ballot, given the extremely narrow window employers will now have to respond to the union’s side of the story the employees have been hearing for months (Notably, the latest union election statistics indicate that unions currently win most elections, even under the current rules.)
  • Limiting Legal Arguments and the Time to Make Them. The new rule requires companies to submit position statements containing virtually all legal arguments in opposition to an election and local agency rulings within days of receiving the petition or risk waiving these arguments. This short time frame will especially burden employers who have not previously considered their potential arguments.
  • Requiring the Disclosure of Employees’ Private Information. The new rule requires employers to provide unions with personnel information that previously did not need to be disclosed, namely, the employees’ personal e-mail addresses and phone numbers, if available, within two business days of the NLRB’s direction of an election.

Companies with questions about the new rule may contact a lawyer in the Gibbons Employment & Labor Law Department.

James J. La Rocca is an Associate in the Gibbons Employment & Labor Law Department.

NLRB Rules Employees “Presumptively Permitted” to Use Employer Email Systems for Statutorily Protected Communications

Posted in Labor

On December 11, 2014, in Purple Communications, Inc. and Communications Workers of America, AFL-CIO, Cases 21-CA-095151, 21-RC-091532, and 21-RC-091584, the National Labor Relations Board (the “Board” or “NLRB”) held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”

At issue in Purple Communications, was the Company’s electronic communications policy, which stated that the Company’s electronic systems were to be used for business purposes only. In addition, the policy prohibited employees from using the Company’s email systems to “engag[e] in activities on behalf of organizations or persons with no professional or business affiliation with the Company” and “send[] uninvited emails of a personal nature”, among other things. The Communications Workers of America and the AFL-CIO brought an unfair labor practice charge against Purple Communications with the NLRB, alleging that the Company’s electronic communications policy interfered with the employees right to engage in “concerted activity” under Section 7 of the National Labor Relations Act.

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Supreme Court Decides Time Spent to Undergo Security Screening is Noncompensable

Posted in Wage & Hour

The time warehouse workers spent waiting to undergo and undergoing antitheft security screenings before leaving work is not compensable under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et. seq., as amended by the Portal-to-Portal Act of 1947, §251 et. seq. (Portal-to-Portal Act), according to the United States Supreme Court, which unanimously decided Integrity Staffing Solutions, Inc. v. Busk on December 9, 2014.

Compensable work has been interpreted under the FLSA to mean work the employee is required to perform, and defined in the Portal-to-Portal Act to include activity that is “preliminary to or postliminary to said principal activity or activities.” In Integrity Staffing, the Supreme Court concluded that this statutory language means activity “with which the employee cannot dispense if he is to perform his principal activities.”

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New Jersey Appellate Division Requires Arbitration Provisions to Include Specific Waiver of Right to Sue in Court

Posted in Policies/Handbooks

Two recent New Jersey Appellate Division decisions have serious implications for employers utilizing or contemplating arbitration provisions. In both decisions – Kelly v. Beverage Works NY Inc., decided on November 26, 2014, and Dispenziere v. Kushner Cos., decided on November 21, 2014 – the Appellate Division relied on the New Jersey Supreme Court’s September decision in Atalese v. U.S. Legal Services Group, which held that an arbitration provision was unenforceable because it lacked “clear and unambiguous language” that the party signing the agreement is waiving its right to sue in court.

Kelly v. Beverage Works NY Inc.

In Kelly, plaintiff was employed as a merchandise sales representative with Beverage Works NY Inc. (“Beverage Works”) and was a member of Local 713, I.B.O.T.U., IUJAT (the “Union”). After plaintiff was out of work for a period of time due to a work-related injury, Beverage Works terminated him for numerous performance deficiencies.

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Paid Sick Leave is Gaining Momentum in New Jersey

Posted in Employee Benefits

Trenton and Montclair became the latest New Jersey municipalities to approve paid sick leave laws in 2014. The issue was put before voters on Election Day and was approved by a comfortable margin in both cities. The Trenton and Montclair ordinances, which will take effect on March 4, 2015, are part of a growing trend in the state of New Jersey which began last year when Jersey City became the first municipality in the State to pass such a law. In early 2014, Newark followed suit with a similar law. Thereafter, Passaic, East Orange, Paterson, and Irvington have all passed paid sick leave laws scheduled to take effect between December 31, 2014 and January 7, 2015. In addition, a bill is pending in the New Jersey State Legislature which would, if passed, make paid sick leave a statewide law.

Trenton and Montclair’s New Laws

Both Trenton and Montclair’s sick leave laws closely follow the Newark law and require that, with limited exception, employers with ten or more employees in those locations provide employees with up to 40 hours of paid sick time per calendar year. Smaller employers with less than ten employees also must provide sick time, but only up to 24 hours. Under the law, employees accrue at least one hour of paid sick time for every 30 hours worked. Employees shall begin to accrue sick time at the start of their employment or on the effective date of the law – whichever is sooner – and may begin using the paid time after 90 days of employment. The paid sick time may be used for the following reasons:

  • The employee’s own mental or physical illness, injury, or health condition or the employee’s need for medical diagnosis, care, or treatment of his/her own health condition;
  • The employee’s need to care for a family member with a mental or physical illness, injury, or health condition; or who needs medical diagnosis, treatment, or care of same; or who needs preventive medical care;
  • The employee’s place of business is closed due to a public health emergency; or an employee’s child’s school or place of care has been closed due to a public health emergency; or to care for a family member who may have been exposed to a communicable disease.

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New Jersey Appellate Division Decision Stresses Importance of Meaningful Anti-Harassment Policy and Training

Posted in Discrimination, Policies/Handbooks

An effective anti-harassment policy has long been recognized as a key component to an employer’s avoidance of liability for allegations of sexual, racial, or other harassment under New Jersey law. The New Jersey Appellate Division in Dunkley v. S. Coraluzzo Petroleum Transporters recently reinforced this fact, and the decision provides a helpful reminder to employers that adopting clear anti-harassment policies, providing regular training to its workforce, and immediately addressing allegations of harassment/discrimination once presented, are important factors that may help them avoid liability for the conduct of employees who violate such policies.

Factual Background

In Dunkley, the Plaintiff was employed as a oil delivery driver with S. Coraluzzo Petroleum Transporters (“SCPT”). At the outset of his employment, Plaintiff was required to attend two days of in-class safety training and two weeks of “on-road” on-the-job training. Richard Harrington, another truck driver, was assigned as Plaintiff’s on-road trainer. During the training period, Harrington made numerous race-related comments directed toward Plaintiff. Plaintiff reported these comments to a number of his supervisors, including Elwood Sickler, SCPT’s safety coordinator. Immediately following this meeting, Sickler informed Plaintiff that he was being assigned a new trainer, and would no longer have to work with Harrington. Shortly thereafter, however, Plaintiff resigned from his employment with SCPT.

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Federal Court of Appeals Addresses Testing Employees for Lawful Prescription Drug Use

Posted in Disability

The Americans with Disabilities Act (“ADA”) makes it unlawful for an employer to either require its employees to undergo medical examinations or make disability-related inquiries that cannot be justified as “job related and consistent with business necessity.” The statute, however, expressly provides that testing an employee for illegal drug use is not a “medical examination” that must be justified under this standard. But what about an employer, who, because of safety concerns, requires employees to be tested for substances for which the employee has a valid prescription? Does such a test constitute a medical examination or a disability-related inquiry? In Bates v. Dura Automotive Systems, Inc., the United States Court of Appeals for the Sixth Circuit recently undertook to provide guidance on this issue. The Court concluded that whether testing for prescription drugs constitutes a medical examination or a disability-related inquiry for ADA purposes depends on the specific facts of the case at hand and, ultimately, may be an issue for a jury to resolve. It is clear that this is an area where employers must tread carefully. The difficulty of implementing a prescription drug testing program that will comply with the ADA suggests that such testing should be used only as a last resort when other safety measures have proved insufficient.


The employer in Bates, Dura Automotive systems (“Dura”), manufactures windows for motor vehicles. After receiving reports of workplace accidents attributable in part to prescription drug use, Dura implemented plant-wide drug testing for 12 substances, some of which are found in prescription medications. The testing was administered by an independent company, Freedom From Self (“FFS”), which determined if illegal drug use was involved or if a “positive” test result was caused by a medication for which the employee had a valid prescription but one that came with machine-operation warnings. Dura told employees with such prescriptions they would be terminated if they continued to use their medications. After subsequent retesting, the employees who had continued taking their medications were, in fact, terminated.

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Attempting to Shoot for the Moon and Settle For the Stars During the Meet and Confer Process May Result in Obtaining Neither

Posted in Litigation

A recent decision out of the Northern District of California provides a sobering reminder that a party’s obligation to meet and confer must be undertaken in good faith. If a party is overly aggressive – and therefore perceived not to be acting in good faith – it may wind up with nothing.

Boston Scientific Corporation v. Lee was a fairly typical case involving a former employee’s alleged theft of trade secrets. Defendant Dongchul Lee (Lee) left Plaintiff Boston Scientific Corp. (Boston) and began working for a competitor, nonparty Nevro Corp. (Nevro). Shortly thereafter, Boston sued Lee, claiming theft of trade secrets and violation of a confidentiality agreement. Boston alleged Lee had downloaded its confidential information onto a USB thumb drive, and used these trade secrets in his subsequent employment with Nevro.

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Changes to FLSA Overtime Exemption for Domestic Service Workers are Coming

Posted in Labor, Wage & Hour

Effective January 1, 2015, the Fair Labor Standards Act overtime exemption for “domestic service workers” will change, having significant ramifications for employers of these employees. Until this change, domestic service workers generally have been exempt from overtime compensation, which means they need not be paid at the rate of time and a half for hours worked in excess of 40 per workweek. The U.S. Department of Labor has issued a Fact Sheet to summarize the changes. Here are the main points to understand:

  • A third party, such as a staffing agency, may not claim the overtime exemption. This change also affects employers who employ an individual jointly with a third party. Instead, the exemption applies only if an individual, family, or household employs the domestic worker directly. As a result of this change, a staffing agency or third party that places domestic workers must pay overtime for hours worked over 40 hours in a workweek. (Also note that applicable state law may impose additional overtime obligations.)
  • The nature of duties falling within the overtime exemption will be narrowed to fellowship and protection of an elderly person or person with an illness, injury, or disability who requires assistance with self-care. The performance of other related duties involving “care” do not destroy the exemption, provided they do not exceed 20% of the total hours worked in the workweek.
    • “Fellowship” means social, physical, and mental activities, such as conversation, reading, games, crafts, accompanying the person on walks, on errands, to appointments, or to social events.
    • “Protection” includes being present with the person in his/her home, accompanying the person when outside of the home, and monitoring the person’s safety and well-being.
    • “Care” includes activities such as daily living activities, i.e., dressing, grooming, feeding, bathing, toileting, and transferring.
  • If an employee performs medically-related work, typical of a nurse or nursing assistant, during the workweek, the exemption is lost for that workweek.
  • Even if the employee qualifies as a domestic service worker, the employee still must be paid for all hours worked at the federal minimum wage. However, if the individual is employed by a staffing company, the person must be paid at least minimum wage for all hours worked up to 40 hours in a workweek, and at time and a half for any hours worked in excess of 40 in a workweek.
  • If government assistance is provided directly to the individual, family, or household to pay for domestic services, it is not an open door to apply the exemption to all hours worked by the domestic service worker beyond the funding. If the domestic worker performs services not covered by the funding and non-exempt in nature, the non-exempt work is overtime eligible.

The changes to the overtime exemption do not affect the other regulations for domestic service workers, such as the rules defining whether time for travel, sleep, and waiting is compensable.

For more information regarding the domestic service worker exemption or other FLSA issues, please contact an attorney in the Gibbons Employment & Labor Law Department.

Mitchell Boyarsky is a Director in the Gibbons Employment & Labor Law Department.