Recently, the National Labor Relations Board (NLRB) issued a Notice of Proposed Rulemaking which is intended to roll back a controversial 2015 decision that loosened the board’s test for determining whether businesses like franchisors and franchisees are joint employers under the National Labor Relations Act.
Without doubt, the clear public policy of the State of New Jersey is – and always has been – to eradicate invidious discrimination from the workplace, and a central purpose of the New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-12, is the prohibition of discrimination in all aspects of the employment relationship. Recently, this purpose has been extended by way of a new state mandate to ensure equal pay to all employees for equal, or “substantially similar,” work.
Effective July 1, 2018, the Diane B. Allen Equal Pay Act (the “Act”) became the most sweeping equal pay legislation in the nation. Prior to its enactment, equal pay was governed generally by Title VII and the NJLAD, as well as the federal Equal Pay Act of 1963, which is aimed at abolishing pay disparity only on the basis of gender. The New Jersey Equal Pay Act amended the NJLAD by furthering and broadening the prohibition against pay discrimination because, or on the basis, of an employee’s inclusion in any protected class. That means equal pay for everyone regardless of race, gender, age, ethnicity, religion, etc.
The proliferation of paid sick leave laws has arrived in New Jersey. On May 2, 2018, New Jersey Governor Phil Murphy signed into law the New Jersey Paid Sick Leave Act, which takes effect October 29, 2018. The Act, which applies to nearly all employers and employees in the Garden State, guarantees that almost every person employed in New Jersey will accrue paid sick leave. Given its breadth of coverage, record keeping and notice requirements, and the potential penalties for breach and noncompliance, Employers must prepare for this new legislation. Here are some of the basics.
Who is Covered?
The Act applies to any person or entity having employees in the State of New Jersey, regardless of the employer’s size. The terms “employer” and “employee” are defined broadly to include all employers and employees, with limited exceptions. This includes temporary help service firms and small businesses.
How is Leave Accrued?
Last week, the NFL sought to end the political controversy surrounding some players kneeling during the national anthem by enacting a policy fining teams if players kneeled during the Star-Spangled Banner.
Under the new policy, players could stay in the locker room while the national anthem of the United States is played. Shortly, thereafter, players wrongfully asserted that the new policy violates their First Amendment protection of “freedom of speech.”
The problem with the players’ constitutional argument is that the Constitution only applies to “State actors.” The state action requirement stems from the fact that the constitutional amendments protecting individual rights are mostly phrased as prohibitions against government action. The First Amendment to the United States Constitution sets forth, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or the press, or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.” The Fourteenth Amendment, which was ratified after the Civil War, made most of the liberties set forth in the Bill of Rights applicable to the States.
Consider a few scenarios:
- An employee has been injured on the job and unexpectedly fails a post-accident drug test, testing positive for opioids. What do you do?
- An employee comes into your office, closes the door, and confides in you that she is battling an addiction to opioids and needs help. What policies apply and laws come into play?
- An employee is increasingly absent from work, appears drowsy and inattentive when he is working, and his performance is slipping. You’ve issued a few verbal disciplinary warnings and have decided it is time for the employee to go, but when you go to put the “pink slip” in the employee’s locker, you find a current prescription for pain killers prescribed to the employee. Do you fire him?
- A candidate for employment submits an application, has impressive credentials, has relevant job experience and hits a home run at her interview. You make a conditional job offer subject to the candidate passing a comprehensive background check, which turns up a drug possession conviction. You raise the issue with the candidate, who discloses that she had a drug dependency addiction in the past but is clean now and still attending support group meetings to stay clean. Do you hire her?
These are just a few examples of how employers and the workplace can be affected by the opioid crisis. Just about everyone in this day and age has been touched by the opioid epidemic or knows someone who has. Employers similarly are not immune to this sad and sobering reality. The opioid crisis touches many employment law issues, policies and procedures, including background checks, drug testing, medical leave laws, employee benefits and counseling, social media and employee speech, employee privacy and HIPAA, and disability discrimination and accommodation under the Americans with Disabilities Act (ADA).
What is a “hostile work environment?”
This seemingly straightforward three-word phrase has vexed employers, in-house counsel, and HR professionals alike when dealing with employee internal grievances of discrimination and harassment. It’s easy to discipline employees engaged in repetitive discriminatory or harassing behavior in the workplace.
More troublesome for employers, however, is the single racial slur or isolated incident of harassment, which can leave HR directors in search of legal guidance.
The recent turmoil, investigation and controversy surrounding President Donald Trump’s firing of former FBI Director James Comey has thrust the issue of wiretapping into the public and political spotlight. “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!,” President Trump tweeted on May 12, 2017, suggesting that “tapes” of his private conversations with Director Comey might exist. Most recently, the White House, responding to bipartisan criticism, has been pressed to divulge whether there really are any secret recordings of the president’s private conversations with the former FBI Director. Time will tell whether the Trump Administration comes clean and whether any recordings actually do exist (and, if so, what the implications might be).
All of this commotion prompted me to think about wiretapping in the workplace and, specifically, the issue of audio recordings or, as President Trump has expressed, “tapes” of conversations secretly recorded by an employer of its employees. What types of audio or tape recordings are legally permitted in the employment environment?
To say that Facebook and social media have complicated the relationship between employer and employee and, specifically, what an employee can say or do with respect to his/her work, is an understatement. Social media has added a new dimension to analyzing the intersection between employee speech and protected activity under the National Labor Relations Act (the “NLRA”), and the level of protected activity has reached a new low.
A new line has been drawn in the sand, and the “outer-bounds of protected, union-related” activity has been reestablished by the United States Court of Appeals for the Second Circuit. In National Labor Relations Board v. Pier Sixty, LLC, the Second Circuit was tasked with the challenge of determining to what extent the NLRA protects an employee’s comments on social media and the point at which an employee’s conduct is so “opprobrious” (i.e. abusive, pejorative, obscene, libelous) as to lose the NLRA’s protection.
In laymen’s terms, the question is: How badly can an employee behave and still keep his job if the employee’s behavior is at least loosely tethered to union-related activity? The answer, as explained below, is very badly.
When was the last time you clicked a box indicating your agreement to terms of service without actually reading, let alone understanding, the terms and conditions of service? The use of “clickwrap” whereby users of web-based applications memorialize their acceptance of legal agreements by clicking something, like a check box, is commonplace in the digital world. In the employment arena, however, the use of such web-based platforms and click-to-accept legal agreements is relatively new. Still, courts have not hesitated to apply traditional principles of contract law to these agreements and enforce them against unsuspecting and often oblivious employees, so long as the clickwrap agreements are conspicuously displayed on the web-based platform and reasonably communicate the employer’s terms to its employees.
Despite increased efforts to curb it, sexual harassment in the workplace hasn’t gone away. In fact, news reports of allegations of sexual harassment and lewd behavior lodged against media mogul Bill O’Reilly at Fox News and, separately, against transportation network company Uber, have shined a spotlight on the pervasiveness of sexual harassment in the workplace. As to O’Reilly, several complaints were raised and settled over several years by Fox News before the company asked O’Reilly to leave the network. With respect to Uber, the company allegedly swept “under the rug” several separate claims of sexual harassment made against a particular manager because the manager was a “high performer.” The sad truisms revealed by both the Uber and O’Reilly matters, clearly, are that money talks and rules can be bent (if not broken) for star performers. But there is a silver lining, as important lessons about the correction and prevention of sexual harassment in the workplace can be learned from these two publicly aired situations involving sex discrimination in the workplace.