Employment Law Alert

Employment Law Alert

News and Updates on Employment Law

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.

Employers Must Make Sure They Have Evidence of Employee’s Receipt of FMLA Notices

Posted in Family Leave

In a recent case decided by the United States Court of Appeals for the Third Circuit, Lupyan v. Corinthian Colleges Inc., an employee who did not return to work until after her 12 weeks of leave under the Family and Medical Leave Act (FMLA) had expired was able to avoid summary judgment against her because her employer was unable to come up with any hard evidence that she had actually received the FMLA notices mailed to her while on leave. The decision is a clear warning to employers that they run a real risk in FMLA litigation that notices sent by ordinary mail to an employee on leave may not carry the day.


In Lupyan, plaintiff’s supervisor suggested plaintiff take a leave of absence to deal with her depression. At the suggestion of the supervisor, plaintiff applied for short term disability benefits and obtained a doctor’s certification of a mental condition. Plaintiff was instructed by an HR employee to check the “family leave” box on her leave application, and HR thereafter mailed her a letter detailing her rights under the FMLA. More than 12 weeks later, plaintiff advised HR that she had her doctor’s clearance to return to work, but, HR advised her that she no longer had a position because, for among other reasons, she had not returned to work within the 12 weeks allotted by the FMLA. Plaintiff brought suit alleging interference with her rights under the FMLA claiming she had never received any notice of her FMLA rights. In opposition to her employer’s motion for summary judgment, which relied on the letter sent by HR, plaintiff submitted an affidavit stating that she had received no such letter. The trial court granted the employer’s motion, reasoning that under the “mailbox rule” plaintiff was presumed to have received the letter advising her of her FMLA rights. The court also relied on the notice provisions in the employer’s policy manual, a copy of which plaintiff acknowledged had been issued to her.

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NJ Adopts “Ban the Box” Prohibiting Inquiries into Criminal History During Initial Employment Application Process

Posted in Policies/Handbooks

On August 11, 2014, New Jersey Governor Chris Christie signed into law “The Opportunity to Compete Act” – more commonly referred to as “ban the box” – which prohibits employers from inquiring into a job applicant’s criminal record during the initial employment application process. The law will take effect on January 1, 2015 and preempts any local laws (such as Newark’s 2012 ordinance) addressing the same subject.

The New Jersey “ban the box” law applies to any public or private employer with at least 15 employees who does business or accepts employment applications in the State of New Jersey. Federal employers, however, are exempt. Covered employers are precluded from asking job applicants – either on a job application form or through a verbal or written request – about their criminal record during the initial employment application process. This initial process includes the period beginning with an applicant’s first inquiry to an employer about a prospective position (or an employer’s first inquiry to an applicant about a prospective job) and ending with an employer’s first interview of the applicant. If, however, an applicant voluntarily discloses information regarding his or her criminal record during the initial employment application process, then the employer may inquire about it.

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New Executive Orders Impact Government Contractors in Their Capacity as Employers

Posted in Discrimination

President Obama recently signed two Executive Orders that impact government contractors in their capacity as employers. Executive Order 13672 (July 21, 2014) amends Executive Order 11246 (September 24, 1965) by adding “sexual orientation” and “gender identity” to the list of personal characteristics that cannot be used by government contractors to discriminate against any employee or applicant for employment. As originally issued, Executive Order 11246 proscribed discrimination on account of race, color, religion, sex, and national origin – characteristics protected by Title VII of the Civil rights Act of 1964 (Title VII). Sexual orientation and gender identity are not specifically identified in Title VII as protected characteristics. These Executive Orders also apply to subcontractors and vendors of government contractors. Executive Order 13672 leaves in tact an earlier amendment to Executive Order 11246 that granted an exemption for government contractors qualifying as religious organizations in terms of the ability of these organizations to hire individuals of a given religion. The Department of Labor is charged with issuing regulations within 90 days implementing the new Executive Order.

On July 31, 2014, President Obama issued an Executive Order entitled “Fair Pay and Safe Workplaces.” Among other things, this Executive Order requires a government contractor or subcontractor seeking a contract or subcontract in excess of $500,000 to disclose any administrative determination, arbitration award or civil judgment against it for violating the federal labor laws, including the Fair Labor Standards Act, Title VII, the Age Discrimination in Employment Act, the Occupational Safety and Health Act, the National Labor Relations Act, the Family and Medical Leave Act and the above-discussed Executive Order 11246. Contractors must update this information every six months during the performance of the contract. The government may impose remedial measures to avoid future violations, and “serious, repeated, willful or pervasive” violations can result in a government decision not to award a contract, not to exercise a contract option, or to cancel a contract. In addition, government contractors and subcontractors seeking contracts or subcontracts in excess of $1 million must agree that they will not compel their employees to arbitrate claims under Title VII or tort claims for sexual assault or harassment. The Executive Order also directs the Federal Acquisition regulatory counsel to issue appropriate implementing regulations.

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