Employment Law Alert

Employment Law Alert

News and Updates on Employment Law

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.

Background

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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EEOC Issues Enforcement Guidance on Pregnancy Discrimination

Posted in Discrimination

On July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) — the agency responsible for the enforcement of federal anti-discrimination laws — issued Enforcement Guidance on Pregnancy Discrimination and Related Issues (“the Guidance”). The Guidance primarily discusses the requirements of the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), but also addresses additional federal laws that touch upon pregnancy and related conditions, including the Family and Medical Leave Act (FMLA), the Genetic Information Nondiscrimination Act (GINA) and the Patient Protection and Affordable Care Act (ACA).

Though the basic rule of the PDA — covered employers must treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other employees who are similar in their ability or inability to work — has not changed, the Guidance asserts a number of new and somewhat controversial positions. For example:

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New Jersey Supreme Court Clarifies Whistleblower Law

Posted in Whistleblower

In June 2014, the New Jersey Supreme Court, in Hitesman v. Bridgeway, Inc., affirmed the decision of a lower appellate court dismissing a claim brought by a healthcare worker under the New Jersey whistleblower law, the Conscientious Employee Protection Act, N.J.S.A. § 34:19-1 et seq. (CEPA). The decision is significant because the Supreme Court clarified the role of a trial court on the issue of whether a plaintiff has sufficiently identified a rule of law or a public policy that provides the necessary foundation for a CEPA claim.

Background

Bridgeway, which operated a nursing home, employed plaintiff as a staff nurse and later promoted him to a supervisory position. Plaintiff became concerned about what he perceived as an outbreak of infectious diseases at the nursing home and expressed his concerns to his superiors and to various government agencies. Dissatisfied with the actions taken in response to his concerns, plaintiff contacted a local television station and provided the station with a copy of his “logs” on which he had recorded information about patients at the nursing home. Bridgeway then terminated plaintiff, advising him that by providing his logs to the television station he had violated Bridgeway’s confidentiality policy and the Health Insurance Portability and Accountability Act (HIPAA).

Plaintiff sued Bridgeway in New Jersey Superior Court, alleging that he was terminated in violation of CEPA. Specifically, plaintiff relied on N.J.S.A. 34:19-3a(1) and c(1), which prohibit retaliation against a licensed healthcare professional who either discloses to a public body or objects to a policy or practice of an employer that constitutes improper quality of patient care. He also relied on N.J.S.A. 34:19-3c(3), which prohibits retaliation against any employee who objects to a policy or practice of an employer that is incompatible with a clear mandate of public policy concerning the public health, safety or welfare. During the jury trial that followed, the trial court denied Bridgeway’s motion for involuntary dismissal at the close of plaintiff’s case. The jury concluded that Bridgeway had violated CEPA when it terminated plaintiff. In response to special interrogatories, the jury found that plaintiff had an objective, reasonable belief that Bridgeway had provided improper quality of healthcare or had violated the law or public policy and that plaintiff’s reporting of his concerns about patient care to government agencies was a determinative factor in his termination.

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Gibbons Director John Romeo Named a Top Employment Attorney by Human Resource Executive Magazine

Posted in Labor

Human Resource Executive® magazine has featured John C. Romeo, a Director in the Employment & Labor Law Department at Gibbons P.C., on its list of the “Nation’s Most Powerful Employment Attorneys,” in the “Up-and-Comers” category.

This is the seventh edition of the “Nation’s Most Powerful Employment Attorneys,” a collaboration between Human Resource Executive® and Lawdragon, a media company that has issued “best of” lawyer lists since 1989. This guide is intended to offer corporate counsel and human resource professionals a guide to finding lawyers who can help resolve difficult employment situations and comply with workplace-related laws and regulations. This year’s list of 210 employment lawyers featured 40 up-and-comers (who have been in practice for less than 20 years) recommended by corporate counsel.

At Gibbons, Mr. Romeo represents both private and public employers in all aspects of federal and state labor and employment laws. He routinely provides practical strategic advice to clients dealing with difficult employee issues involving all aspects of the employment relationship. Mr. Romeo has extensive experience defending single plaintiff, multi-plaintiff and class claims under state and federal employment laws, including claims for discrimination, retaliation, and harassment, as well as wage and hour claims. Mr. Romeo also serves as legal counsel and lead negotiator during labor negotiations, and has extensive experience handling labor arbitrations and defending unfair labor practice charges before the NLRB. In addition, he has assisted employers in developing, drafting, and implementing employment policies, compliance and ethics programs, drug-free workplace programs, and executive employment agreements. He is a former member of the Association of Corporate Counsel’s Labor and Employment Committee and was active with the organization’s Delaware Valley Chapter (DELVACCA).

About Human Resource Executive®
Human Resource Executive® was established in 1987 and continues today as the premier publication focused on strategic issues in HR. Written primarily for vice presidents and directors of human resources, the magazine provides these key decision-makers with news, profiles of HR visionaries and success stories of human resource innovators. Stories cover all areas of human resource management, including talent management, benefits, healthcare training and development, HR information systems, relocation, retirement planning, and employment law.

Supreme Court Finds President’s NLRB “Recess” Appointments Unconstitutional

Posted in Labor

On June 26, 2014, in NLRB v. Noel Canning, the Supreme Court of the United States unanimously decided that President Obama’s purported “recess” appointments of National Labor Relations Board members on January 4, 2012 violated the Constitution because the Senate was not on a break of “sufficient length” when the President appointed them, and thus the President could not dispense with Senate consent of the appointments. The decision calls into question hundreds of NLRB rulings between January 4, 2012 and August 7, 2013, when a new Board was finally sworn in with Senate approval of the President’s appointments. Those rulings include numerous pro-union decisions dealing with dues checkoff clauses, confidentiality policies and practices, employee social media activities, conduct during bargaining unit elections and workplace investigations. More globally, the decision ends an arduous debate as to the meaning of the words “[v]acancies that may happen during the Recess” in the Constitution’s Recess Appointments Clause.

By way of brief background, the Constitution generally requires the Senate to approve the President’s appointments of United States officers, including members of the NLRB. At issue in Noel Canning was the President’s appointments of three NLRB Members on January 4, 2012 during a three-day break when the Senate was not conducting any business. Noel Canning, a Pepsi-Cola distributor, maintained that an NLRB order requiring it to execute a collective bargaining agreement was invalid because the appointments of three members of the five-member Board had not been approved by the Senate, and thus the Board lacked a quorum. The President relied on the so-called Recess Appointments Clause, which carves out a limited exception that allows the President to fill vacancies without the Senate’s approval that “happen” during “the Recess” of the Senate.

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EEOC Issues Guidance Regarding Religious Dress and Grooming Practices

Posted in Discrimination

The Equal Employment Opportunity Commission (“EEOC”) — the federal agency responsible for the enforcement of federal anti-discrimination laws — recently issued guidance on religious accommodation under Title VII of the Civil Rights Act of 1964 (“Title VII”), specifically focusing on religious dress and grooming practices. The publication, entitled “Religious Garb and Grooming in the Workplace: Rights and Responsibilities,” along with its accompanying Fact Sheet, are designed to assist employers to comply with their legal responsibilities under Title VII.

Expansive Interpretation of “Religious Practice or Belief”

The EEOC takes a broad view on “religious practice or belief” protected by Title VII, including those practices or beliefs that are “new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others,” as well as practices based on “theistic beliefs or non-theistic moral or ethical beliefs as to what is right or wrong that are sincerely held with the strength of traditional religious views.”

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New Jersey Appellate Court Upholds Agreements Shortening the Statute of Limitations for Employment-Related Claims

Posted in Employment Agreements

On June 19, 2014, in Rodriguez v. Raymours Furniture Company, Inc., the New Jersey Appellate Division upheld the validity of a provision in an employment application form by which the job applicant agreed that, if hired, he or she would bring any employment-related claim within 6 months after the claim arose. Plaintiff alleged he was terminated because of a disability in violation of the New Jersey Law Against Discrimination (“LAD”) and in retaliation for having filed a workers compensation claim. The Appellate Division held that because the plaintiff brought these claims 9 months after his termination they were barred by the 6-month limitations period in the application form even though they were brought well within the 2-year statute of limitations period otherwise applicable to these types of claims.

Background

When plaintiff applied for a job with defendant in 2007 he was required to complete an application form which included the following language:

READ CAREFULLY BEFORE SIGNING – IF YOU ARE HIRED, THE FOLLOWING BECOMES PART OF YOUR OFFICIAL EMPLOYMENT RECORD AND PERSONNEL FILE.

* * * * *

I AGREE THAT ANY CLAIM OR LAWSUIT RELATING TO MY SERVICE WITH RAYMOUR & FLANIGAN MUST BE FILED NO MORE THAN SIX (6) MONTHS AFTER THE DATE OF THE EMPLOYMENT ACTION THAT IS THE SUBJECT OF THE CLAIM OR LAWSUIT. I WAIVE ANY STATUTE OF LIMITATIONS TO THE CONTRARY.

In 2010, plaintiff completed another application form in connection with his promotion to a new position. This form did not contain a provision shortening the period in which to bring an action against the company.

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