Gibbons Law Alert

Gibbons Law Alert

Category: Policies and Handbooks

Anti-Harassment Policies and Training: What New York Employers Need to Know Now

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Posted in Policies and Handbooks

On September 25, 2018

New York State As part of the 2018-2019 New York State Budget (“the Law”), employers within New York State are required to implement an anti-harassment policy by October 9, 2018 and implement an anti-harassment training program for employees and supervisors. In connection with these requirements, the New York State Department of Labor (NYSDOL), in consultation with the New York State Division of Human Rights, recently released drafts of its model anti-harassment policy, complaint form, interactive training program, and FAQs (“Anti-Harassment Materials”). Employers may adopt these Anti-Harassment Materials or develop their own policies and programs, provided they comply with or exceed the minimum standards set forth in the Law for the model policy and training program. The NYSDOL accepted comments on the Anti-Harassment Materials through September 12, 2018. Final documents are expected soon. The seven-page template policy is extensive and covers the topics required by the Law, such as: a statement that sexual harassment is a form of “employee misconduct” an explanation of sexual harassment specific examples of harassing conduct details concerning external avenues of complaints for employees (e.g., local, state, and federal anti-discrimination agencies and the local police in cases of assault) prohibitions against retaliation reporting procedures supervisory responsibilities detailed information about the investigation process (including document preservation requirements) a statement that action will be...

New Fair Credit Reporting Act – Summary of Rights Forms

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Posted in Policies and Handbooks / Privacy and Data Security

On September 21, 2018

The Consumer Financial Protection Bureau (“CFPB”), the Federal agency that administers the Fair Credit Reporting Act (“FCRA”), just issued new Summary of Rights forms. An employer conducting a background check on an employee or applicant through a consumer reporting agency must provide such employee or applicant a Summary of Rights notice when first obtaining consent to conduct the background check — together with a written disclosure about the use of the background check — and when taking adverse action based on the background check. Starting today, September 21, 2018, the new Summary of Rights form must be used. The CFPB also issued forms called Summary of Consumer Identity Theft Rights that must be provided to consumers by credit reporting agencies when the subject of an identity theft. A new law also requires credit reporting agencies to implement a “national security freeze” at no cost to a consumer that restricts prospective lenders from access to a consumer’s credit report. Other changes include a one year (instead of 90 days) notification of a fraud alert in a consumer’s file. The notification informs a lender that the consumer may have been the victim of identity theft, for which the lender must take additional steps to verify the identity of anyone attempting to obtain credit in the consumer’s name....

New York Employers Fall Review

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Posted in Policies and Handbooks

On September 6, 2018

In 2018, employers in New York encountered several important changes, including in the areas of anti-harassment and scheduling, warranting a Fall review of current employment practices and preparation for next year’s developments. Employers should take the time now to review current practices and prepare for the imminent future. NEW YORK CITY’S TEMPORARY SCHEDULE CHANGE LAW New York City’s Temporary Schedule Change Law (“TSC Law”) became effective July 18, 2018, and requires private employers to provide eligible employees with an allowance of a “temporary change” to their usual work schedule for certain qualifying “personal events” for up to two occasions per year (i.e., one business day twice per year or two business days on one occasion). Eligible employees are those who work at least 80 hours a year in New York City and have been employed by their employer for 120 or more days, with limited exceptions, including employees covered by collective bargaining agreements waiving the law. Temporary schedule changes may include paid time off, use of short-term unpaid leave, permission to work remotely, or working hour swaps or shifts. Qualifying “personal events” include: (a) an employee’s need to: (i) care for a minor child or care recipient (i.e., a person with a disability who is a family or household member and relies on the employee...

New York Employers Mid-Year Review

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Posted in Family Leave / Labor / Policies and Handbooks / Wage and Hour

On July 31, 2017

In 2017, employers in New York encountered several important statutory changes affecting recruitment of applicants and retention of independent contractors. More legal change will come in 2018, warranting a mid-year review of current employment and hiring practices, as well as preparation for next year’s developments. Employers should take the time now to audit current practices and prepare for the imminent future. Pay Equity On May 4, 2017, Local Law 67 was enacted to prohibit all employers in New York City from inquiring about an applicant’s salary history (including current or prior wages, benefits, and other compensation), and from relying on an applicant’s salary history when determining his or her compensation package during the hiring process, including contract negotiations. The law applies to both public and private employers and employment agencies, and to their employees and agents (collectively, “employers”). Employers may, however, engage in communications with an applicant about his or her expectations as to salary, benefits, and compensation, including any deferred compensation or unvested equity which the applicant may forfeit as a result of leaving his or her current employer. In addition, if the candidate voluntarily (and without any prompting by the prospective employer), discloses his or her salary history to the prospective employer, the employer may consider salary history in determining compensation for the applicant,...

The Metadata Minefield – New Jersey’s Amended Rules of Professional Conduct Provide Ethical Guidance

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Posted in Policies and Handbooks

On March 28, 2017

Every electronic document contains metadata – hidden, electronically stored information (ESI) which reveals details surrounding its creation, typically including the document’s creator and the date and time the document was created and edited, among other things. Much of this metadata may be innocuous, but some – for example, the identity of every individual who opened or edited a document, or even tracked changes – may reveal privileged and confidential attorney client communications or work product that was not meant to be visible to or seen by the other side. This, in turn, generates issues of concern for lawyers entrusted with preventing disclosure of such confidential information and for those who receive it. Following the recommendations of its Commission on Ethics 20/20, the American Bar Association (ABA) recently amended the Model Rules of Professional Conduct (MRPC) to address these issues and provide guidance to lawyers in both situations. In the wake of the ABA amendments, the New Jersey Supreme Court examined these issues, soliciting input from, among others, the Special Committee on Attorney Ethics and Admissions (Special Ethics Committee) and the Working Group on Ethical Issues Involving Metadata in Electronic Documents (Working Group), and rendering Administrative Determinations on the Reports and Recommendations of both groups. The New Jersey Supreme Court largely adopted the groups’ recommendations (which...

Court Compels Arbitration of Lawsuit Filed by Employees Discharged After Discovery of Personal Text Messages About a Coworker on a Company-Issued iPad

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Posted in Class Action Defense / General Litigation / Policies and Handbooks / Technology Developments and Issues

On September 12, 2016

A recent decision from the District of New Jersey granting a motion to compel arbitration not only reinforces the strong federal policy in favor of arbitration, but also highlights issues pertaining to company-issued devices and employees’ personal use of these devices. While employed by Anheuser-Busch, Victor Nascimento received a company-issued iPad. Nascimento and other employees exchanged text messages about a coworker over their personal cell phones outside of the work day, but the messages were received on Nascimento’s company-issued iPad because the iTunes account on his iPad was linked to his personal cell phone.

EEOC to Release Respondent Position Statement to Charging Party Upon Request

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Posted in Policies and Handbooks

On April 7, 2016

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.

Plainfield Becomes 12th New Jersey Municipality to Approve Paid Sick Leave

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Posted in Policies and Handbooks

On March 29, 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.

Ban the Box Law Amendments Are Now Effective in Philadelphia

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Posted in Policies and Handbooks

On March 28, 2016

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).

The Walls Have Ears: NLRB Invalidates Employer’s Prohibition on Recording in the Workplace

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Posted in Policies and Handbooks

On February 10, 2016

Whole Foods Markets received the proverbial ugly holiday sweater in the form of a December 24, 2015, 2-1 decision by the National Labor Relations Board that declared its policy prohibiting recording in the workplace unlawful. The decision in the cases Whole Foods Markets, Inc. and United Food and Commercial Workers Local 919 and Workers Organizing Committee of Chicago, focused on two rules contained in Whole Foods’ General Information Guide. The first prohibited the recording of meetings, with the laudable, express goals of encouraging “open communication, free expression of ideas, spontaneous and honest dialogue and an atmosphere of trust.” The only exceptions were when the recording was approved by management or all parties to the conversation consented. The second rule also prohibited the use of a recording device in order to “eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.” Seems fair, right? Not according to the NLRB.

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