On June 21, 2016, in Smith v. Millville Rescue Squad, the Supreme Court of New Jersey addressed the scope of the marital status protection afforded to employees by the Law Against Discrimination (LAD). The Court ruled that the LAD’s marital status provision is not limited to the state of being single or married but protects employees who have announced “they will marry, have separated, have initiated divorce proceedings or have obtained a divorce.”
Author: Gibbons P.C.
Employers drafting arbitration clauses for employment contracts and others drafting arbitration agreements generally need to be familiar with the line of New Jersey cases involving arbitration clauses, including the Appellate Division’s recent opinion in Anthony v. Eleison Pharmaceuticals LLC, Docket No. A-932-15T4 (App. Div. July 18, 2016), where the court held that an arbitration clause that does not include reference to a waiver of plaintiff’s statutory rights or a jury trial does not constitute a valid waiver of the right to have claims decided in a judicial forum.
Employers should be aware that the United States Court of Appeals for the Second Circuit has held, in Graziadio v. Culinary Institute of America, that supervising employees can be held individually liable under the Family and Medical Leave Act (“FMLA”) for retaliation and interference with an employee’s FMLA rights. The Court also formally adopted standards for FMLA interference claims and for claims brought pursuant to the associational discrimination provision of the Americans With Disabilities Act (“ADA”).
On June 27, 2016, in National Federation of Independent Business v. Perez, Judge Sam R. Cummings of the United States District Court for the Northern District of Texas issued a nationwide preliminary injunction precluding the United States Department of Labor (“DOL”) from enforcing its recently introduced rule interpreting the Labor-Management Reporting and Disclosure Act’s (“LMRDA”) “advice” exemption. 81 Fed. Reg. 15,924 et seq.
Seventh Circuit Creates Circuit Split, Striking Down Agreement to Arbitrate Employment Claims on an Individual Basis
On May 26, 2016, the United States Court of Appeals for the Seventh Circuit issued its decision in Lewis v. Epic Systems Corp., becoming the first federal court of appeals to decide that an agreement between an employer and an employee to arbitrate wage-and-hour claims only on an individual basis, as opposed to a class action basis, is unenforceable. The court’s opinion has created a circuit split, as the Second, Fifth, and Eighth Circuits have enforced similar agreements.
In Tyson Foods, Inc. v. Bouaphakeo, the Supreme Court of the United States definitively answered the question of whether statistical “representative evidence” may be used in class actions to establish that “questions of law or fact common to class members predominate over any questions affecting only individual members” pursuant to Rule 23(b)(3). According to the Court’s much-anticipated opinion, the answer is yes: “Its permissibility turns not on the form a proceeding takes – be it a class or individual action – but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action.”
The Equal Employment Opportunity Commission (“EEOC”) has issued new, nationwide procedures allowing a Charging Party or his/her representative to request copies of Respondent employer’s position statement and non-confidential attachments during the investigation of his/her charge of discrimination. The new procedures apply to all position statements submitted after January 1, 2016. Employers must be cognizant of this new rule and strategically craft positions statements with an eye towards disclosure. Specifically, employers need to carefully separate confidential information into separately labeled attachments to avoid inadvertent disclosure to the Charging Party.
Department of Labor’s New “Persuader” Rule Requires Employers and Labor Relations Consultants to Publicly Disclose Arrangements
On March 24, the United States Department of Labor (“DOL”) published a final rule imposing new reporting requirements under the Labor-Management Reporting and Disclosure Act (“LMRDA”) that could impede employers’ communications with their workers about unions. The rule will take effect on April 25, and will cover arrangements, agreements, and payments between employers and their labor relations consultants – including their attorneys – beginning July 1, 2016.
On March 14, 2016, Plainfield became the 12th New Jersey municipality to approve paid sick leave. The Plainfield ordinance, which will take effect on July 14, 2016, requires that, with certain exceptions, employees working in Plainfield for at least 80 hours per year accrue at least one hour of paid sick time for every 30 hours worked. Employers with ten or more paid employees must provide employees with up to 40 hours of paid sick time per calendar year, and employers with less than ten paid employees must provide sick time up to 24 hours, except for employees who are child care workers, home health care workers and food service workers who are entitled to up to 40 hours of paid sick time. Employees begin to accrue sick time on the first day of their employment and are entitled to begin using their accrued time on the 100th calendar day of their employment. Additionally, employees are permitted to carry over up to 40 hours of paid sick leave to the next calendar year, but employers are not required to carry over more than 40 hours.
On March 14, 2016, the amendments to Philadelphia’s “ban the box” law went into effect. The amendments to the city’s Fair Criminal Record Screenings Standards Ordinance (the “Ordinance”), signed into law by Philadelphia’s then Mayor, Michael Nutter, on December 15, 2015, create additional restrictions under the Ordinance on how and when an employer may consider a prospective employee’s criminal background during the application process (beginning when an applicant makes an employment inquiry and ending when the employer has extended a conditional offer of employment).