President Obama Signs Two Executive Orders to Limit Workplace Discrimination

On April 8, 2014, at an event commemorating National Equal Pay Day (an annual public awareness event that aims to draw attention to the gender wage gap), President Obama signed two executive orders designed to limit workplace discrimination.  The first prohibits federal contractors from retaliating against workers who discuss their salaries with one another, while the second instructs the Department of Labor to establish new regulations requiring federal contractors to submit summary data on compensation paid to their employees, including breaking down the data by gender and race.

The protections offered by the anti-retaliation Order overlap with many already existing under state and federal law.  For example, the NLRA protects employees’ right to engage in “concerted activities” and thus already prohibits employer discipline against employees who discuss their wages.  Further, some state laws, such as California Labor Code §232, already preclude an employer from disciplining an employee who discloses the amount of his or her wages.  Nonetheless, the Order may add to these protections, such as by expanding them to management employees (who are not protected by the NLRA), and providing an alternative option for bringing retaliation claims (i.e., through the Office of Federal Contract Compliance Programs rather than the NLRB).

The effects of the Order requiring the collection of compensation data will be unclear until the regulations themselves are formulated.  Based on the Order’s mandate to “avoid new record-keeping requirements and rely on existing reporting frameworks to collect the summary data” and to develop regulations that “minimize, to the extent possible, the burden on Federal contractors and subcontractors,” it is possible that the federal government will require that the data be submitted along with a federal contractors’ annual EEO-1 Report.

The President’s signing of these Orders appears to tie into the White House’s previously announced plans to accelerate change in areas it believes are within the authority of the Executive Branch, without the need for legislation.  Indeed, the Orders’ provisions mirror parts of the Paycheck Fairness Act (“PFA”), a proposed piece of legislation that would add procedural protections to the EPA and the FLSA to address male–female income disparity.  (The PFA came up for a vote in the U.S. Senate on April 9, 2014, where it was blocked by a Republican filibuster).  Similarly, in February 2014, President Obama issued an Order raising the minimum wage for federal contractors, at a time when Sen. Tom Harkin (D-Iowa) and Rep. George Miller (D-Calif.) were urging a bill to raise the federal minimum wage to $10.10 per hour and index it to inflation.  Then, in March 2014, President Obama directed the Labor Department to revamp regulations governing which types of employees business may classify as overtime-exempt “executives” or “professionals.”  With regard to the Order requiring the collection of compensation data, the OFCCP has been working internally on releasing a proposed compensation data collection tool for the past three years.  See http://www.dol.gov/ofccp/Presentation/Compensation_Data_Collection_Tool.htm (publicizing the OFCCP’s August 10, 2011 Advance Notice of Proposed Rulemaking regarding a new compensation data collection tool).

The high profile nature of the Orders provides yet another impetus for employers to evaluate their existing policies, and plan for the future.

Philadelphia Pregnancy Accommodation Law: Notice Requirement Begins on April 20, 2014

On January 20, 2014, Philadelphia Mayor Michael Nutter signed into effect an amendment to the city’s Fair Practices Ordinance: Protections Against Unlawful Discrimination that expressly includes pregnancy, childbirth, or a related medical condition among those categories protected from unlawful discrimination.

The city law covers employers who do business in Philadelphia through employees or who employ one or more employees.  Before this amendment, employers’ obligations under city, state, and federal antidiscrimination laws only required them to treat employees with pregnancy-related issues no worse than any other disabled employee with respect to accommodations.  Now employers are not only prohibited from denying or interfering with an individual’s employment opportunities on the basis of pregnancy, childbirth, or related medical conditions, but employers also are required to make reasonable accommodations on these bases to an employee who requests it.  The legislation’s non-exhaustive examples of reasonable accommodations include restroom breaks, periodic rest for those who stand for long periods of time, assistance with manual labor, leave for a period of disability arising from childbirth, reassignment to a vacant position, and job restructuring.  Employers have an affirmative defense under the law for failing to accommodate an employee if such accommodations would cause an undue hardship.

Employers should take note that this law increases the burden on them to provide reasonable accommodations, since examples like reassignment and job restructuring have traditionally not been required under similar federal and state laws that mandate accommodations for individuals with disabilities.  Thus, employers should review their policies and other written materials regarding employee accommodations to ensure that they reflect the increased protections afforded by the amendment.  Employers were required to provide written notice to its employees of the protections under this amendment by April 20th or post the notice conspicuously at its place of business in an area accessible to employees.  The Philadelphia Commission on Human Relations has provided a model notice to employees, which can be found at: http://www.phila.gov/HumanRelations/PDF/pregnancy_poster.pdf.

Proposed California Paid Sick Leave Law Will Require Employers to Provide Paid Sick Leave to Employees

Are you a California employer currently providing paid sick leave to your employees?  You may soon have to!  California Assemblywoman Lorena Gonzalez (D-San Diego) recently introduced legislation (Bill AB1522) approved by the Assembly Labor and Employment Committee requiring employers in the State of California to provide their employees with paid sick leave.

This bill would enact the Healthy Workplaces, Healthy Families Act of 2014 to provide, among other things, that an employee who works in California for 7 or more days in a calendar year is entitled to paid sick days to be accrued at a rate of no less than one hour for every 30 hours worked.  An employee would be entitled to use accrued sick days beginning on the 90th calendar day of employment.  And employers would be subject to statutory penalties as well as lawsuits, including the recovery of attorneys fees by the aggrieved employee against employers, for alleged violations.

It is important to note that this type of bill is not new in California, as the San Francisco Paid Sick Leave Ordinance became effective on February 5, 2007 and all employers must provide paid sick leave to each employee — including temporary and part-time employees — who performs work in San Francisco.

The California Chamber of Commerce as well as other employer groups are opposed to this bill and view it as a job killer.

Stay tuned….

 

New Jersey Expands Protections Against Pregnancy-Based Discrimination By Employers And Other Entities

Update 1/23/14 – On Wednesday, January 22, 2014, Governor Christie signed  S2995 into law.  LaborSphere’s original post on the legislation appears below. 

New Jersey is on the precipice of expanding anti-discrimination protections to both pregnant women and new mothers and those recovering from childbirth.  The State Senate and now the State Assembly have passed identical measures with only one dissenting vote in either legislative body.  The expansive legislation now awaits the signature of Governor Chris Christie in order to become law. 

Amendments to New Jersey Law Against Discrimination

In order to address the perceived vulnerability of pregnant women in the workplace as well as to foster the goal of healthier pregnancies and recovery from childbirth, the legislation passed by New Jersey’s legislature expands the anti-discrimination and anti-retaliation protections of New Jersey’s Law Against Discrimination (“NJLAD”).  Should it pass, both pregnant women but also those who have recently given birth or have medical conditions related to pregnancy will be statutorily protected against disparate treatment and retaliation by employers, labor organizations, landlords, lending institutions as well as an array of other entities that offer public accommodations.

Further, not only does the pending legislation add “pregnancy” to the array of protected categories covered by the NJLAD.  It also specifically requires employers to provide “reasonable accommodations,” such as bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring, modified work schedules and temporary transfers to less strenuous or hazardous work.

The legislation implied but does not specifically state that any such requested accommodations will likely need to be based on the advice of a physician.  As such, it appears that pregnant women and those who have recently given birth cannot merely demand that an accommodation is “reasonable” and necessary absent some input from her physician.

Further, employers are not obligated to agree to any requested accommodation, even if it is supported by a physician’s recommendation, if such an accommodation would impose an “undue burden” as defined by the statute.  The proposed legislation provides specific factors to be utilized in determining whether an accommodation would impose undue hardship on the operation of an employer’s business.  These include:

  • overall size of the employer’ business with respect to the number of employees;
  • number and type of facilities;
  • size of budget;
  • the type of the employer’s operations, including the composition and structure of the employer’s workforce;
  • the nature and cost of the accommodation needed, taking into consideration the availability of tax credits, tax deductions and outside funding; and
  • the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.

New Protection To Employees Seeking Information About Claims

Perhaps the start of a new trend, among the proposed amendments to the NJLAD is also a provision that protects any employee against reprisals by employers for asking coworkers or former coworkers for information that is part of an investigation or in furtherance of a possible claim under the NJLAD.  Such information may include requests for data regarding pay, compensation, bonuses or benefits.  Significantly, this new protection extends beyond pregnant women and those who have recently given birth. 

Impact of Amendments

If enacted, the amendments to the NJLAD would override the New Jersey Supreme Court’s 2005 ruling in Gerety v. Atlantic City Hilton Casino Resort, 184 N.J. 391 (2005).  In that case, New Jersey’s highest court held that the NJLAD does not protect against the firing of a female worker who exceeded the leave available under state and federal as well as the defendant-employer’s policy.  Under the proposed amendments, it is likely that the accommodations requested in the Gerety case, by a plaintiff who had a difficult pregnancy with twins, would be considered reasonable and covered under the NJLAD.

More broadly, while the federal Family Medical Leave Act and New Jersey Family Leave Act each allow for a maximum of twelve weeks of pregnancy-related leave, under the proposed amendments, the amount of leave available to a woman who is pregnant or recovering from childbirth is not as clearly defined.  To the extent a women seeks an accommodation – including additional leave or a reduced work schedule – because of pregnancy and childbirth-related conditions, an employer has, at the very least, an obligation to review and consider such requests.

Should the proposed amendments to the NJLAD be passed, we recommend a review of leave policies as well as training for managers to identify requests for accommodations.  Each request for accommodation must be considered carefully and should it appear to impose an undue burden, then the statutorily defined factors must be taken into account.

New Jersey Gender Equity in Pay – Notice and Posting Requirements Effective January 6, 2014

By: Marion B. Cooper

Governor Chris Christie signed Assembly Bill 2647 (the “Gender Equity Notice and Posting Law,” N.J.S.A. 34:11-56.12) into law, effective November 21, 2012 requiring New Jersey employers with 50 or more employees to conspicuously post a notice, where it would be accessible to all workers in each of the employer’s workplaces, informing employees of their “right to be free of gender inequity or bias in pay, compensation, benefits, or other terms or conditions of employment” under the New Jersey Law Against Discrimination, other New Jersey State law, Title VII of the Civil Rights Act of 1964 and the federal Equal Pay Act of 1963.  (http://www.njleg.state.nj.us/2012/Bills/PL12/57_.PDF)

Under the Gender Equity Notice and Posting Law, employers have 30 days from December 9, 2013, the date the New Jersey Division of Labor and Workforce Development (“NJDLWD”) issued the “notice” to comply.  The gender equity notice is now available for download from the NJDLWD at: http://lwd.state.nj.us/labor/forms_pdfs/EmployerPosterPacket/genderequityposter.pdf

Here is what “covered” employers (those employers with 50 or more employees, whether they work inside or outside of New Jersey) must do:

  1. Beginning January 6, 2014, conspicuously post the gender equity notice where it is accessible to all employees in each of the employer’s workplaces.  If the covered employer has an internet or intranet site for its employees’ exclusive use to which all employees have access, posting of the notice on such a site will satisfy the conspicuous posting requirement.
  2. By February 5, 2014, provide each employee hired on or before January 6, 2014 with a written copy of the gender equity notice.
  3. After January 6, 2014, provide each employee with a written copy of the gender equity notice at the time of the employee’s hiring.
  4. Beginning January 6, 2014, and on or before December 31 of each subsequent year, provide each employee a written copy of the gender equity notice.
  5. At any time, upon the first request of the worker, provide each employee a written copy of the gender equity notice.

Covered employers may distribute the gender equity notice as follows:

  1. By email;
  2. Via printed materials, including, but not limited to, a paycheck insert, brochure or similar informational packet provided to new hires, an attachment to an employee manual or policy book, or flyer distributed at an employee meeting; or
  3. By way of an internet or intranet site, so long as it is accessible by all employees, for employees’ exclusive use and the employer provides notice to workers of its posting.

Covered employers must ensure that the gender equity notice contains an acknowledgment, indicating that the worker has received the notification and has read and understands its terms.  The acknowledgment must be signed by the employee, in writing or electronically verified form, and returned to the employer within 30 days of receipt.  The notice must be posted in English, Spanish, and any other language the employer reasonably believes is the first language of a significant number of workers in the covered employer’s workforce, provided that the NJDLWD has issued a form notice in that language.

New Jersey employers (with 10 employees or more) are reminded of the similar, annual posting and distribution requirements of the New Jersey Conscientious Employee Protection Act (“CEPA”) and of the new posting requirement of the New Jersey SAFE Act, which provides unpaid leave for victims of domestic violence.  As the end of 2013 rapidly approaches, New Jersey employers are encouraged to take time out to make sure that all postings are current for the new year, that all distribution requirements are or will be satisfied, and that handbooks are updated to reflect these new laws.

Jersey City Passes Paid Sick Leave Law

Following the lead of its neighbor across the Hudson River [see our earlier coverage of New York’s paid sick leave law here], New Jersey’s second most populated city, Jersey City, has passed an ordinance to require employers with ten or more employees to offer as many as five paid sick days a year.  The bill is sweeping in its application, impacting all businesses employing workers who work at least 80 hours a calendar year in Jersey City.  However, employee headcount is critical to determining employers’ obligations under the law:

10 Or More Employees In Jersey City:  5 Paid Sick Days
Fewer Than 10 Employees In Jersey City:  5 Unpaid Sick Days

Counting Employees:  Full-time, part-time and temporary workers all count toward the total number of employees for purposes of this new law.  Further, if an employer’s workforce fluctuates, the number of employees will be calculated based on the average number of employees who worked for compensation during the calendar year.

Accrual and Carry Over:  Accrual of paid sick leave is not automatic.  Rather, workers earn one hour of sick time, paid or unpaid, for each 30 hours worked, accruing a maximum of 40 hours per year.  New workers can only begin to use sick time on the 90th calendar day of employment.  Employees may carry over up to 40 hours of sick time into a new calendar year but may not use more than 40 hours of paid sick time in any year.  Further, if an employee is separated from employment but later re-hired within six months, the previously accrued but unused sick time must be reinstated.  However, the law makes clear that employers need not pay out accrued but unused sick time at separation.

Using Sick Time:  Likely inconsistent with many employers’ policies, employees can use sick time in hourly increments or the smallest unit of time the employer uses to account for absences or other time off.  Like FMLA leave, Jersey City sick time covers more than an employee’s own illness.  It can be used to care for the mental or physical illness, injury or health condition, treatment, medical diagnosis, or preventative care of the employee’s family members.  It can also be used due to an employee’s need to care for a child whose school or place of care has been closed by order of a public official due to a public health.  The Jersey City leave law is more broad than federal or New Jersey family leave laws, covered family members include a wide range of relations, including, but not limited to, biological, adopted, foster or step child, legal ward, domestic partner, civil union partner, grandparents and spouses.

Requesting Sick Time:  Employees need only make a verbal request and must only provide notice “as soon as practicable.”  Employers may ask for reasonable documentation if the employee requests more than three consecutive days of sick time.  However, employers may not, as a condition of an employee’s taking sick time, require that an employee search for or find a replacement worked to cover the hours during which the employee is absent.

Notices  Covered employers must provide employees with written notice of the law at the commencement of their employment.  Additionally, notice of the law must be posted in an accessible place.  Violation of the notice and posting requirements carries a civil fine of up to $100 per employee and $500 per establishment.

Record-Keeping:  Employers must retain records showing the hours worked and paid sick leave taken by all employees for a period of three years.  Records must be made available to the Department of Health and Human Services.  Under the law, a failure to maintain adequate records creates a rebuttable presumption that the employer has violated the ordinance.

Enforcement and Audits:  The Jersey City Department of Health and Human Services is vested with the power to enforce the ordinance, adjudicate complaints, provide information about paid sick leave, create posters and notices and conduct audits.  Audits and investigations may include private interviews of employees and former employees.  Violations carry fines up to $1,250 and/or a period of community service not to exceed 90 days.

Anti-Retaliation and Private Right of Action:  The ordinance also creates a private right of civil action without the need to first file a complaint to the Jersey City Department of Health and Human Services.  Further, employers may not retaliate against employees for exercising their rights under the law, including any employee’s request for using sick time or filing a complaint about a violation.  The ordinance specifically creates a rebuttable presumption of unlawful retaliation if the employer takes adverse action against an employee within 90 days of filing a complaint, informing any person about an alleged violation, cooperating in the investigation or prosecution of any alleged violation, opposing any policy or practice made unlawful by the law or informing any person of their rights available under the ordinance.

No Duplication of Leave:  If an employer already provides a paid leave policy (i.e., paid time off or “PTO”) which provides leave equal to or in excess of what is required under the law, then there is no need to provide additional leave because of this law.

A link to a copy of City Ordinance 13.097 may be found by clicking here: Jersey City Paid Leave Law.