Employment Law Alert Blog

NYC Council Passes Legislation Barring Pre-employment Marijuana Testing

NYC Council Passes Legislation Barring Pre-employment Marijuana Testing

On April 9, 2019, the New York City legislature passed legislation that would amend Section 8-107 of the New York City Administrative Code to prohibit employers from testing job applicants for marijuana or tetrahydrocannabinols (THC) – the active ingredient in marijuana. Specifically, the law states, “it shall be an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.” The legislation creates an exception for individuals who apply to specifically defined roles; such as police officers or peace officers, those requiring a commercial driver’s license, those requiring the supervision or care of children, medical patients, or other vulnerable persons, and those with the “potential to significantly impact the health or safety of employees or members of the public.” Furthermore, the law would not apply to drug testing that is required pursuant to: (a) regulations promulgated by the federal department of transportation; (b) federal contracts; (c) a federal or state law, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; or (d) a collective...

United States DOL Proposed Update to FLSA Overtime Rules

United States DOL Proposed Update to FLSA Overtime Rules

On March 7, 2019, The United States Department of Labor (DOL), announced a proposal to update the overtime rules under the Fair Labor Standards Act (FLSA). Under the FLSA, employers are required to pay employees at least the minimum wage for all hours worked, and overtime pay (at 1 ½ times an employee’s regular rate) for all hours worked in excess of 40 in a workweek. To be exempt from these requirements, an employee must be paid on a salary basis, at or above a set minimum weekly salary level, and meet certain specific requirements concerning their job duties. In March 2014, President Obama directed the DOL to update and modernize regulations under the FLSA governing overtime exemptions for “white collar” employees (i.e., executive, administrative and professional employees). After receiving more than 270,000 comments, in May 2016, the DOL issued a final rule, substantially increasing the minimum salary levels for the overtime-exempt classifications, from $455 per week ($23,660 per year) to $913 per week ($47,476 per year), and incorporating mechanisms to adjust the salary level in the future (“2016 Rule”). Under the 2016 Rule, the salary level needed to satisfy the highly compensated employee (HCE) exemption (which includes a less...

Governor Murphy Signs Bill Making Nondisclosure Provisions Unenforceable and Against Public Policy

Governor Murphy Signs Bill Making Nondisclosure Provisions Unenforceable and Against Public Policy

On Monday, March 18, 2019, Governor Phil Murphy signed Senate Bill No. 121, which makes nondisclosure provisions in employment contracts or settlement agreements that are intended to conceal the details of claims of discrimination, retaliation, or harassment unenforceable and against public policy in New Jersey. Section 1 of the new law warns that a “provision in any employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment” is against public policy and unenforceable.” The law does not define “employment contract” and leaves open to interpretation whether it applies to all agreements between employer and employee, whether an employment agreement, a separation agreement, or a settlement agreement. The prohibition on waiving any procedural right would make arbitration agreements, which by their nature waive the right to a jury trial, also invalid and unenforceable in contravention of the Federal Arbitration Act and recent United States Supreme Court precedent. An immediate challenge to this aspect of the law is likely since it casts doubt on all arbitration agreements between an employer and employee that seek to include claims of discrimination, harassment, and retaliation. Section 1 also prohibits a prospective waiver of any right...

Third Circuit Considers Whether Employer May Access Employee’s Password-Protected Information from Work Computer

Third Circuit Considers Whether Employer May Access Employee’s Password-Protected Information from Work Computer

In a recent “Not Precedential” opinion, a divided Third Circuit panel engaged in an instructive and interesting debate about whether, under New Jersey law, an employer may access and monitor a former employee’s password-protected accounts using information the employee left on his work computer. The case involved a group of employees who left an employer en masse to join a competing enterprise. One of the departing employees failed to log out of his Facebook account before he returned his computer to the employer. The employer was thus able to—and did—monitor for more than a month the employee’s password-protected Facebook activity, which included Facebook Messenger exchanges among the other former employees in which the employees admitted to improperly sending the employer’s confidential information to their new employer. When the employer sought a preliminary injunction against the former employees, the employees claimed that the old employer had unclean hands—and thus was not entitled to an injunction—because of its post-termination monitoring of the employee’s password-protected Facebook activity and other password-protected accounts. The district court rejected the unclean hands defense and entered an injunction. On appeal the majority held that the employer’s monitoring of the employee’s accounts was not sufficiently related to the employees’...

Recent NLRB Decision Helps Employees, Hurts Unions

Recent NLRB Decision Helps Employees, Hurts Unions

On March 1, 2019, the National Labor Relations Board (NLRB) issued a decision in United Nurses and Allied Professionals (Kent Hosp.), 367 NLRB No. 94 (2019) addressing the rights of individuals in collective-bargaining units who are subject to union-security requirements and elect not to be union members. The Board held that unions cannot charge these individuals for lobbying activities because such activities are not needed for unions to perform their statutory representational duties (i.e., collective-bargaining, contract administration, and grievance adjustment). Additionally, the NLRB held that unions must provide these individuals with independent verification that the financial information it shares with them about union expenditures to justify their non-member charges has been properly audited. The decision came on the heels of a memorandum issued by the Board’s General Counsel, which addressed unions’ duties to notify employees in collective-bargaining units of their right to be non-members, pay reduced charges, and revoke dues authorization checkoffs on their specific anniversary and/or contract expiration dates. The union in Kent Hosp. represented a group of registered nurses. Some of those nurses resigned their union membership and objected to the union charging them for lobbying activities. Such individuals are sometimes referred to as Beck objectors in light...

Accepting the Risks of Arbitration Clauses: The Southern District of New York Upholds Arbitrator’s Decision Allowing Class-Wide Arbitration

Accepting the Risks of Arbitration Clauses: The Southern District of New York Upholds Arbitrator’s Decision Allowing Class-Wide Arbitration

On January 2, 2019, the Southern District of New York (SDNY) in Wells Fargo Advisors LLC v. Tucker, declined to vacate an arbitrator’s clause construction award, which construed the parties’ arbitration agreement as permitting class-wide arbitration. Importantly, prior decisions from the SDNY and Second Circuit concluded the parties’ arbitration agreement clearly and unmistakably expressed the parties’ intent that an arbitrator should decide the gateway issue of whether the agreement permitted class arbitration. Having delegated that authority to the arbitrator, the District Court found no basis in law to overturn that clause construction award. The two prior decisions in this matter, addressing the issue of who should decide whether an agreement permits class arbitration, align well with the United States Supreme Court’s January 9, 2019 holding in Henry Schein, Inc. v. Archer & White Sales, Inc. There—resolving a circuit split—the High Court held that when the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract, and possesses no power to decide the arbitrability issue, even if the court believes the argument that the arbitration agreement applies to a particular dispute is “wholly groundless.” The clause construction award in Wells Fargo Advisors LLC arose out...

2019 Rings in Further Protections for Delaware and Philadelphia Employees

2019 Rings in Further Protections for Delaware and Philadelphia Employees

Before 2018 wrapped up, the year of the #MeToo movement, the Delaware and Philadelphia legislatures worked to ensure the passage of employee-friendly legislation. While Delaware’s new law focuses on sexual harassment,  Philadelphia has turned its focus on the work schedules for those employed in service industries. Delaware, like many other states in 2018, passed legislation to strengthen workplace harassment laws. The legislation was signed into law in August 2018, and went into effect on January 1, 2019. Delaware’s Discrimination in Employment Act has now been amended to include provisions specifically dedicated to sexual harassment that apply to employers with at least four employees in the state. It should be noted that Delaware’s law includes unpaid interns, applicants, joint employees and apprentices within its definition of employee. In addition to defining sexual harassment, the law provides that employers will be liable for sexual harassment if: (1) A supervisor’s sexual harassment results in a negative employment action of an employee; (2) The employer knew or should have known of a non-supervisory employee’s sexual harassment of an employee and failed to take appropriate corrective measures; or (3) A negative employment action is taken against an employee in retaliation for the employee filing a...

New Jersey Court Invalidates Arbitration Agreement that Fails to Designate an Arbitration Forum

New Jersey Court Invalidates Arbitration Agreement that Fails to Designate an Arbitration Forum

The New Jersey courts have consistently held that the mutual assent necessary to support a binding arbitration agreement is not present where the agreement does not sufficiently put the parties on notice that, by agreeing to arbitrate, they are giving up the right to have their dispute resolved in a judicial forum and are waiving whatever rights they might have to a jury trial. In Flanzman v. Jenny Craig, Inc., the New Jersey Appellate Division has now held that the mutual assent necessary to support a binding arbitration agreement will also be found lacking when the agreement does not designate the forum in which the arbitration will take place and otherwise fails to define the arbitration process. Background The plaintiff, Marilyn Flanzman, after being terminated from her position as a weight loss counselor for the defendant, a weight loss and nutrition company, brought suit in Superior Court, Law Division under the New Jersey Law Against Discrimination, alleging age discrimination and harassment. The defendant moved to compel arbitration based on an arbitration agreement into which the parties had entered during the plaintiff’s employment, which, in relevant part, stated: Any and all claims or controversies arising out of or relating to [plaintiff’s]...

Federal Courts Uphold Arbitration Agreements Via Email

Federal Courts Uphold Arbitration Agreements Via Email

Recently, federal district courts in New York and New Jersey turned aside employee attacks on arbitration agreements challenged on the grounds that the employer’s communication of its arbitration policy via email was inadequate. The courts in both Lockette v. Morgan Stanley and Schmell v. Morgan Stanley held that the employees’ assertions that they never saw the email forwarding the terms of the arbitration agreement were insufficient to overcome the employer’s evidence that the email had been delivered to the employees’ email inboxes. Lockette John Lockette sued Morgan Stanley in federal court in New York after Morgan Stanley terminated his employment in 2016. Lockette alleged he had been the victim of race discrimination and retaliation in violation of federal law. The company moved to compel arbitration. Prior to 2015, the company had in place an internal dispute resolution program entitled “CARE” (Convenient Access to Resolutions for Employees) for employees registered with FINRA, who could select, but were not required to select, arbitration as a means of resolving statutory discrimination claims. In 2015, however, the company expanded the CARE program to cover all employees and to require the arbitration of employment claims, including discrimination claims, among others. Under the terms of the expanded program,...

Arbitration Clause’s Punitive Damages Waiver Held Unenforceable Under the LAD

Arbitration Clause’s Punitive Damages Waiver Held Unenforceable Under the LAD

In Roman v. Bergen Logistics, LLC, the Appellate Division recently held that a plaintiff was required to arbitrate her claims of sexual harassment and retaliation with her former employer. The court also held, however, that the arbitration agreement’s contractual provision that barred the employee’s access to punitive damages was unenforceable. Background Plaintiff Milagros Roman was hired by the defendant, Bergen Logistics, as a human resources generalist. She signed an arbitration agreement at the outset of her employment. In addition to requiring Roman to arbitrate any and all claims related to her employment, the arbitration agreement compelled her to waive any claim for punitive damages. After her termination, Roman filed a complaint in New Jersey Superior Court alleging that her former supervisor sexually harassed her, created a hostile work environment, and retaliated against her in violation of the New Jersey Law Against Discrimination (LAD). The defendants moved to dismiss Roman’s complaint and compel her to arbitrate her claims. The Law Division found that Roman knowingly signed the arbitration agreement and that the agreement contained an unambiguous waiver of claims for punitive damages. Accordingly, that court held that Roman was required to submit her claims to arbitration and could not seek punitive...