Gibbons Law Alert
On August 6, 2021, the New Jersey District Court (Camden) denied both parties’ motions for summary judgment in Calio v. Camden County Board of Chosen Freeholders, a case in which the plaintiff/employee, Matthew Calio, alleges, inter alia, that his rights under the FMLA were violated by his employer.
On July 8, 2021, Governor Murphy signed into law three bills that amend the Worker Misclassification Package signed into law in January 2020 and intensify penalties against employers that misclassify workers. As employment practitioners across the state will recall, the Misclassification Package signed into law in January 2020 consists of a number of laws that grant the Commissioner of Labor and Workforce Development (“Commissioner”) the power to assess penalties against any employer that misclassifies its employees and to issue stop-work orders at the location where any state wage, benefit, or employment tax law violation is found. The laws included in the previously enacted Misclassification Package also allow the New Jersey Department of Labor (NJDOL) to post on its website a list of employers who have been found to misclassify their workers and to create joint liability for employers and staffing agencies for violations of state wage and hour laws. For a more detailed look at the Misclassification Package, see here.
On January 20, 2021, the Commissioner of the New York State Department of Labor (DOL) issued new guidance on New York’s COVID-19 Sick Leave Law (“Sick Leave Law”), which was enacted on March 18, 2020. (A copy of the guidance can be found here.) As discussed in our previous blog post, the Sick Leave Law requires New York employers to provide varying levels of paid and unpaid sick leave (depending on employer size and net income) and access to expanded paid family leave and temporary disability benefits to employees subject to an order of quarantine or isolation due to COVID-19. All employees, regardless of the size of their employers, are entitled to job protection upon their returns from leave. The Guidance (which supplements the DOL’s earlier guidance on the use of leave) is summarized below: An employee who returns to work following a period of mandatory quarantine or isolation need not be tested before returning to work, with a limited exception for nursing home staff. If, however, an employee subsequently tests positive for COVID-19, the employee must cease reporting to work and is entitled to leave under the COVID-19 Sick Leave Law (“COVID-19 Sick Leave”) even if the employee already received sick leave for the first period of quarantine or isolation. Similarly, an employee who...
In the wake of the Food and Drug Administration’s Emergency Use Authorization of the Pfizer and Moderna COVID-19 vaccines, the Equal Employment Opportunity Commission (EEOC) addressed a question weighing heavily on the minds of businesses and their employees: can an employer require its employees to get vaccinated? The EEOC’s December 16, 2020 guidance answered that question in the affirmative, but, as with most pronouncements during the pandemic, the issue is far from simple, and employers must pay close attention to what the guidance says, and what it does not say, when crafting their COVID-19 vaccination policies. The EEOC Guidance characterizes an employer-mandated vaccine as an Americans with Disabilities Act (ADA)-permitted, safety-based qualification standard, akin to “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” Employers can require employees to get a COVID-19 vaccine, but must allow for exceptions where employees are unable to receive the vaccine because of either disabilities or sincerely held religious beliefs. Employees with Disabilities: Where a mandatory vaccination policy would screen out an individual with a disability, the employer must show that the unvaccinated employee would pose a direct threat in the workplace due to a “significant risk of substantial harm to the health or safety of the individual or...
The United States Department of Labor’s Wage and Hour Division (“DOL”) recently announced amendments to regulations regarding the paid leave provisions of the Families First Coronavirus Response Act (FFCRA). By way of background, and as discussed in detail in our prior blog post, the FFCRA provides two types of leave to employees of covered employers (private employers with fewer than 500 employees and public employers of any size, with certain exceptions) – emergency paid sick leave (EPSL) and expanded family and medical leave (EFML). An employee may be eligible for 80 hours of EPSL if he or she is unable to work or telework (without regard to the employee’s length of employment) if the employee: Is subject to a federal, state, or local quarantine or isolation order related to COVID-19; Has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; Is experiencing COVID-19 symptoms and seeking a medical diagnosis; Is caring for an individual who is subject to a quarantine or isolation order, or has “been advised” to self-quarantine; Is caring for a child, because the child’s school or place of care has been closed (or the child’s care provider is unavailable) due to COVID-19 related reasons; or Is experiencing any other substantially-similar condition specified by the Secretary of Health...
As New Jersey begins to reopen under Governor Murphy’s reopening plan and more employees prepare to return to their physical workplaces, employers must continue to navigate a myriad of federal, state, and local guidance regarding how to best protect their workforces and prevent the spread of COVID-19. While many employers, particularly those outside of the construction industry, may not be used to regular dealings with the United States Department of Labor Occupational Safety and Health Administration (OSHA), all employers must consider OSHA’s COVID-19 Guidelines as they prepare reopening plans. While OSHA’s reopening guidance is advisory in nature, employers should remember that the Occupational Safety and Health Act’s (“OSH Act”) General Duty Clause (Section 5(a)(1)) requires all employers to provide employees with workplaces that are free from recognized harms that are likely to cause death or serious physical harm, which could include exposure to COVID-19. Thus, employers should be careful to ensure that their reopening plans comply with OSHA’s guidelines (along with more stringent state or local guidelines if they exist). The OSHA Guidelines categorize risk of worker exposure to COVID-19 from low to very high and lay out specific measures of protection that are recommended at each risk level. Employers should consult this portion of the Guidelines for specific guidance. The Guidelines also outline more...
On April 3, 2020, Governor Cuomo signed into law New York State’s fiscal year 2021 budget, which adds a new section 196-b to the New York Labor Law to include sick leave requirements for New York employers of all sizes, and which the Governor’s office has described as the strongest paid sick leave law in the nation. Although employees may not begin to use sick leave under the new law until January 1, 2021, current employees begin to accrue leave on September 30, 2020. (As discussed in our prior blog, the State also recently passed a COVID-19 sick leave law that provides leave for New York employees who are subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19.) Key provisions of the new law are summarized below. Amount and Accrual of Sick Leave The amount of sick leave an employer must provide employees, and whether such leave must be paid, depends on an employer’s size, and for certain employers, income level. Employers with four or fewer employees in any calendar year must provide employees with up to 40 hours of unpaid sick leave in any calendar year; except that if such an employer has a net income of greater than $1,000,000 in the previous tax year, the leave must be...
As the spread of COVID-19 continues to upend our day-to-day routines and creates new questions for employers and employees alike, the U.S. Department of Labor (DOL) has issued and updated guidance on the Families First Corona Response Act (FFCRA), which became effective on April 1, 2020. The FFCRA provides for two types of paid leave: leave under the Emergency Paid Sick Leave Act (EPSLA) and leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA). As a follow-up to our recent blog post, which explored the new legislation in-depth, this article identifies and explains the key points in the DOL’s most recent guidance on the FFCRA’s leave provisions. Which Employers Must Comply with FFCRA’s Paid Leave Provisions? Employers who have fewer than 500 employees at the time an employee requests to take leave are governed by the FFCRA. In calculating the number of employees for coverage purposes, employers must take into account full-time and part-time employees, employees who are already on leave, temporary employees who are jointly employed with another employer, and day laborers. Independent contractors are not considered employees for purposes of calculating the 500-employee threshold. Generally, two or more entities are separate employers for purposes of the 500-employee threshold, unless the entities meet the integrated employer test under the Family and Medical...
On March 2, 2020, the New Jersey Division on Civil Rights (“DCR”) issued a Guidance Memorandum on the Diane B. Allen Equal Pay Act (“the Act”), which took effect in July 2018 and is widely considered to be one of the most employee-protective equal pay laws in the nation. In a statement made on the day of the Guidance Memorandum’s (“guidelines”) release, New Jersey Governor Phil Murphy reaffirmed his administration’s intention to eliminate discriminatory pay practices throughout the State that have historically prevented women and other minority groups from earning equal pay. The guidelines include a legal overview, with specific attention paid to the Act’s changes to the New Jersey Law Against Discrimination (“LAD”), and provide answers to Frequently Asked Questions (“FAQs”). The first section of the guidelines offer an overview of the Act’s main provisions and provide details on how the Act modifies the LAD. As a refresher, the overview outlines the DCR’s position as to the five most important provisions of the Act: Expanded Remedies for Pay Discrimination: The Act amended the LAD to implement a six-year “lookback” period which allows employees who prove pay discrimination to recover up to six years of back pay if the discrimination was continuous and a violation occurred within the LAD’s two-year statute of limitations. The Act...
On February 6, 2020, the Third Circuit Court of Appeals ruled that a Philadelphia law that prohibits employers from asking job applicants about their salary history is constitutional, lifting the injunction the United States District Court for the Eastern District of Pennsylvania (“District Court”) imposed on certain provisions of the law. The legislation at issue, the Wage Equity Ordinance (“Ordinance” or “law”) aims to address the historic wage gaps that affect women and minorities by encouraging employers to base salary offers on prospective job responsibilities rather than an applicant’s prior wages. The Ordinance was signed into law by Philadelphia Mayor Jim Kenney in January 2017, and was set to take effect in May 2017. The law contains two key provisions: (1) the “inquiry provision,” which makes it unlawful for Philadelphia employers and employment agencies (collectively “employers”) to inquire into an applicant’s wage and benefit history; and (2) the “reliance provision,” which makes it unlawful for employers to rely on an applicant’s wage history to determine future wages. The law also prevents employers from retaliating against any candidate who does not respond to a wage inquiry. The law does not prohibit a prospective employee from voluntarily disclosing compensation history; nor, are employers prohibited from inquiring with respect to compensation expectations. In April 2017, before the law...