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Dear Clients, Colleagues and Friends,
Summer is over, kids are back to school, and we are all geared up for new business! Hopefully, with the fast approaching October 9, 2019 deadline, you have completed your anti-sexual harassment training and now you are hungry for more employment law news.
Here at M&B we are staying on top of all of the new legal developments so you can relax and take it easy. As always, feel free to contact us with any questions by emailing [email protected].
With the upcoming Jewish holidays, we wish all who are celebrating a happy and healthy New Year and an enjoyable holiday season!
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NEW YORK STATE PROHIBITS WORKPLACE DISCRIMINATION BASED ON RELIGIOUS CLOTHING AND FACIAL HAIR
Adding onto the recent developments in NYS to expand anti-discrimination laws, Governor Andrew Cuomo signed new legislation that explicitly bars religious discrimination in the workplace based on an employee's or applicant's attire, clothing, or facial hair in accordance with his or her religion. This NYS law similarly tracks the guidance from the New York City Commission on Human Rights (NYCCHR) released earlier this year prohibiting hair-based discrimination to combat primarily race discrimination, but also religion and gender discrimination.
This new NYS law goes into effect on October 8, 2019. Thereafter, this new state law will prohibit an employer from discriminating against an employee following garb or facial hair requirements of their religion. Unlawful discriminatory action under this new law includes preventing an employee's opportunity for promotion, advancement, or transfers. To defend itself in any religious discrimination claim, the employer bears the burden to prove that it genuinely made an effort to reasonably accommodate the employee's religious practices, i.e., wearing religious garb, and that such accommodation would unduly burden the employer's business.
Before this new law goes into effect, New York employers should review their uniform, grooming, and appearance policies. Employers should also make certain to train their recruitment or human resources personnel so as to prevent any risk of discriminating against an applicant or employee based on their religious attire or facial hair. Appropriate workplace accommodation procedures related to religious clothing or facial hair should be put into place if not already implemented. Please contact us if you have any questions.
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NYS INCREASES STATUTE OF LIMITATIONS FOR CIVIL DOMESTIC VIOLENCE LAWSUITS
Governor Cuomo has signed legislation (S.2416/A.1945) to increase the statute of limitations for civil suits related to injury caused by domestic violence from one year to two years. Under the prior law, civil suits for domestic violence had to be initiated within one year after the incident, which did not properly account for the highly emotional and extremely difficult factors involved in domestic violence situations. By extending the time available to survivors to initiate a civil suit against their abuser, the new law recognizes the sensitive nature of domestic violence and all of the considerations that survivors must work through. The bill is effective immediately.
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FMLA PROTECTIONS FOR EMPLOYEES TO ATTEND SPECIAL SCHOOL MEETINGS FOR THEIR CHILDREN
The federal Family and Medical Leave Act (FMLA) entitles employees of employers with 50 or more employees to seek job-protected, unpaid, intermittent leave up to 12 weeks per year for the purposes of caring for their family members with serious health conditions.
The United States Department of Labor (USDOL) issued an opinion letter confirming that parents are entitled to utilize FMLA leave to attend school meetings to discuss their children's Individualized Education Program for their children's benefit. This opinion letter comes after an employee was granted FMLA leave by her employer to bring her seriously ill children only to medical appointments, but not to attend certain special education meetings at her children's school. According to the USDOL, such absences are protected by the FMLA because such meetings addressing the educational and special medical needs of children are considered to be "caring" for family members pursuant to the FMLA.
Employers should train their respective Human Resources Departments or similar administrative personnel to be aware of FMLA leave requests by employees to attend meetings for the care and benefit of their children.
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NEW JERSEY LIMITS EMPLOYERS' QUESTIONS TO APPLICANTS ABOUT SALARY HISTORY
Not long after New York State passed a bill preventing employers from asking applicants about their salary history, New Jersey has become the latest state to limit salary history inquiries. Overall, this New Jersey law makes it unlawful for employers to (1) screen job applicants based on their salary history, including, but not limited to prior wages, salaries, or benefits, and (2) require an applicant's salary history to meet minimum or maximum threshold criteria. This law will be effective as of January 1, 2020.
However, some exemptions and express authorizations included in this law allow employers to find out about an applicant's prior salary history. First, the law expressly permits the employer to consider salary history if the applicant voluntarily informs the employer of his or her salary history. Second, once the applicant receives an offer of employment explaining his or her overall compensation package, the employer is allowed to request the applicant to provide the employer with a written authorization to confirm his or her salary history. Additionally, if an applicant refuses to provide information about his or her salary history, the employer is prohibited from considering an applicant's such refusal in any employment decisions.
There are certain situations in which the salary history disclosure ban is not applicable. Please be in touch with us if you have specific situations to discuss.
Employers should be on alert that if they violate this new law, they will be liable to the Commissioner of Labor and Workforce Development for a civil penalty of up to $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.
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NEW JERSEY EXPANDS ITS WAGE THEFT PROVISIONS
New Jersey's Wage Theft Law (WTA) went into effect on August 6, 2019. The WTA amends the New Jersey Wage and Hour Law and substantially increases damages for wage violations, expands the statute of limitations for bringing such claims, and adds anti-retaliation provisions and criminal penalties,
Prior to the WTA, the statute of limitations for employees to raise wage-and-hour claims and retaliation against their employers was two years. With the WTA taking effect, the statute of limitations has been extended to six years. Moreover, the employee suing her employer under the WTA can recover the wages owed to her plus liquidated damages up to 200 percent of the unpaid wages, in addition to reasonable attorneys' fees and costs.
The WTA creates a rebuttable presumption of retaliation if the employer takes an adverse action against an employee within 90 days of the employee filing a complaint with the New Jersey Department of Labor and Workforce Development or bringing a claim or action for a violation under New Jersey's wage and hour laws. The employer can rebut the presumption only by providing "clear and convincing evidence" that the employer's conduct was permissible and not for retaliatory reasons. The employer may be required to offer reinstatement to the employee or take other action as necessary to cure the retaliation.
Under the new law, New Jersey employers who violate the state's wage and hour laws will be required to pay civil penalties, face imprisonment, or both. The civil and criminal penalties are $500 to $1,000 for the first violation, or imprisonment of 10 to 90 days; $1,000 to $2,000 for the second violation, or imprisonment of 10 to 100 days; and $2,000 to $10,000 for the third and subsequent violations, or imprisonment of up to 18 months. Additionally, an employer may face a $500 fine and 20 percent penalty for failing to pay its employees compensation as agreed within 30 days of the date due. Penalties of $1,000 plus 20 percent of wages owed will tack on for subsequent offenses.
This new law will likely lead to an increase in wage and hour claims in New Jersey state courts. New Jersey employers should review their accounting methods and timekeeping systems to make certain that they reduce any risk of violating the more stringent and specific amendments to New Jersey's wage and hour laws.
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