Gov. Christie Vetoes Proposed Equal Pay Act Again as ‘Business Unfriendly’

On May 2, 2016, New Jersey Gov. Chris Christie, for the second time, issued a conditional veto of proposed legislation that would bar gender-based pay discrimination, saying in part that the Bill would go too far beyond federal standards and make New Jersey “very business unfriendly.”

In an effort to address and remediate gender-pay gaps in the state, the New Jersey Senate introduced and passed Senate Bill No. 992 (the “Bill”) in February 2016. The Bill comprised similar terms presented in two separate Senate bills back in 2012, one of which Gov. Christie issued a conditional veto of in March 2012, explaining at the time that his opposition sprang from the bill’s failure to include an explicit statutory limitation on back-pay recoveries for employees. Other provisions of the current Bill that would have required government contractors to report employee gender and compensation information to the New Jersey Department of Labor were also vetoed by Gov. Christie in 2012, who commented back then that the unique gender and pay-data reporting requirements would impose costly burdens on the state’s employers. Continue Reading

Landmark Federal Trade Secrets Legislation on Its Way to President Obama for Signature

As technology accelerates and electronic information theft becomes more difficult to detect and prevent, vigilant companies constantly look for ways to protect the trade secrets they consider their “crown jewels.” The passage of the Defend Trade Secrets Act of 2016 (DTSA) will help company management and counsel sleep better knowing that federal courts will be empowered to provide consistent, uniform trade secret protection across the country.

The House voted yesterday to pass the DTSA, which the Senate had unanimously passed.  President Obama is expected to sign it into law.

The DTSA amends the Economic Espionage Act of 1996 (EEA) by allowing plaintiffs to file civil lawsuits for trade secret misappropriation in federal court.  Thus, the DTSA provides an option to bring claims for misappropriation of trade secrets in federal court when federal jurisdiction would not otherwise exist. It also provides uniformity in the law regarding trade secrets at a federal level, and should result in the development of national case law in an area that is often viewed as patchwork at best. This consistency, along with the benefit of access to federal courts, is one of the main reasons company management strongly supported the DTSA. Continue Reading

San Francisco Becomes the First City to Provide Fully Paid Parental Leave

San Francisco has just given the employees of its resident companies quite the baby shower gift. On April 5, 2016, San Francisco passed its Paid Parental Leave law. The local ordinance will leverage off of the California Paid Family Leave law passed in 2004, which allows employees to take time off to bond with a newborn baby, newly adopted child, or newly placed foster child. California Paid Family Leave currently entitles workers to receive 55 percent of their pay for up to six weeks through payments made by the California State Disability Insurance (SDI) fund, a fund financed by the payroll contributions of workers. San Francisco will now require private employers to make up the remaining 45 percent of the parent’s full pay to ensure they receive 100 percent of their normal wages over the six weeks’ leave period.

Paid parental leave has become a hot topic in U.S. employment law over the past few years, as evidenced by New York’s approval of parental leave legislation just last month. San Francisco’s law gives additional volume to the national conversation by passing a measure that requires employers to provide six weeks of fully paid parental leave for mothers and fathers, including same-sex couples, to spend time at home with their newborns.

Employees, both mothers and fathers, who have been employed for at least 180 days, work as least eight hours a week, and spend at least 40 percent of their workweek in San Francisco, qualify for this benefit. The six weeks off can be taken at any time during the newborn’s first year or the first year following placement of an adopted or foster child.

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California Supreme Court Takes a Stand About Employees Sitting

Earlier this week, the California Supreme Court, in Kilby v. CVS Pharmacy, clarified that the suitable seating requirement in several California wage orders may entitle employees to a seat when their tasks can be accomplished while seated. Specifically, the language states: “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” There has been no interpretation as to what seats are “suitable,” who determines the “nature of the work,” or under what circumstances the “nature of the work” “reasonably permits” suitable seats.

The Ninth Circuit asked the California Supreme Court to weigh-in and interpret this language after its application arose in two federal appeals involving separate industries. In the underlying federal appeals cases, clerks/cashiers at CVS and tellers at a bank alleged that their employers failed to provide them with adequate seating. Continue Reading

California Governor Signs into Law New Bill Raising Minimum Wage to $15 per Hour

Not to be outdone by New York’s pending move to increase its minimum wage to $15.00 per hour for non-exempt employees in the coming years, on April 4, 2016, California Gov. Jerry Brown signed into law a bill that will increase California’s statewide minimum wage to $15.00 per hour by 2022. The bill sets out gradual increases in the California minimum wage, starting with a move up to $10.50 per hour January 1, 2017, for all employees working for an employer of 26 or more employees. Smaller businesses with 25 or fewer employees will follow the same incremental increases as larger employers, but starting a year later, with a move up to $10.50 per hour January 1, 2018.

The incremental increases every January 1 will be as follows: Continue Reading

New York Announces Minimum Wage Increase and Paid Family Leave Program

For any New York employer who thought that the state’s workplace rules and regulations were too easy to comply with, I have good news for you. Empire State lawmakers recently announced an agreement on the 2016-2017 state budget that includes both a complicated, location-specific minimum wage increase, and a comprehensive paid family leave scheme that will take effect in 2018.

Minimum Wage Increase

The new minimum wage increase announced by Governor Andrew Cuomo presents perhaps the most complex wage scheme the state has ever seen. It accounts for regional differences and staggers implementation over as many as five years in parts of the state. Specifically:

  • For workers in New York City employed by large businesses (those with at least 11 employees), the minimum wage would rise to $11/hour at the end of 2016, then another $2 each year after that, eventually reaching $15 on December 31, 2018.
  • For workers in New York City employed by small businesses (those with 10 employees or fewer), the minimum wage would rise to $10.50/hour by the end of 2016, then another $1.50 each year after that, eventually reaching $15 on December 31, 2019.
  • For workers in Nassau, Suffolk, and Westchester Counties, the minimum wage would increase to $10/hour at the end of 2016, then $1 each year after that, reaching $15 on December 31, 2021.
  • For workers in the rest of the state, the minimum wage would increase to $9.70/hour at the end of 2016, then another $0.70 each year after until reaching $12.50 on December 31, 2020, after which it would continue to increase to $15 on an indexed schedule to be set by the director of the Division of Budget (DOB) in consultation with the state Department of Labor.
  • The minimum cash wage for food service workers receiving tips would be two-thirds of the minimum wage rates listed above, depending on the location where the employee works.
  • Finally, beginning in 2019, the DOB would review the economy in each region to determine whether a temporary suspension of the scheduled minimum wage increases is appropriate under the circumstances.

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California’s New Rest Period Requirements for Piece-Rate Workers

California law requires that employers authorize and permit their employees to take rest periods based on the total hours worked in a day. Employers must authorize and permit 10 minutes net rest time for every four hours worked or major fractions of an hour. If the workday is less than three and one-half hours, then no rest period is required. Even though no work is performed, employers must consider rest periods as compensable time worked.

New Rest Period Requirements For Piece-Rate Workers 

Recently, the legislature placed substantial new requirements on employers with employees who are compensated on a piece-rate basis for any work within a pay period. Continue Reading

This Is Not a Prank: California’s New Amended FEHA Regulations Are Effective April 1

California’s Fair Employment and Housing Act (“FEHA”) prohibits harassment and discrimination in the workplace that is based on one or more of the categories commonly protected by local, state and federal discrimination laws. On April 1, 2016, new regulations interpreting and expanding upon the statutory language go into effect. Below, we provide a summary of some of the more notable updates to the regulations.

Counting Employees to Determine Whether an Employer Is Covered

The FEHA covers “[a]ny person or individual engaged in any business or enterprise regularly employing five or more individuals, including individuals performing any service under any appointment, contract of hire or apprenticeship, express or implied, oral or written.”

The regulations explain that employers must count individuals performing work both inside and outside of California. Although individuals who encounter potential discrimination or harassment outside the state of California are not protected themselves, they are counted for the purpose of assessing whether the employer is covered under the statute. Employers must also count all individuals on paid or unpaid leave, even those who are on administrative leave because of disciplinary suspension. No individual on a leave of absence of any kind should be excluded. Continue Reading

Reed Smith to Host a Conversation with the Commission on Human Rights about NYC’s New Background Check Law

On October 27, 2015, New York City adopted a so-called “ban the box” law, titled the Fair Chance Act, that severely restricts what employers can ask during the hiring process. Specifically, the Fair Chance Act prohibits most employers from inquiring about an applicant’s criminal record until after the employer extends a conditional offer of employment. And for employers that intend to rescind a job offer based on a criminal inquiry made after a conditional offer is extended, the Fair Chance Act prescribes a rigorous notice procedure. Because of these arduous requirements, the Fair Chance Act has become one of the most important pieces of local legislation passed in years, especially because non-compliance can have dire consequences.

Against this backdrop, Reed Smith is proud to announce an exclusive training session on the Fair Chance Act presented by the New York City Commission on Human Rights—the agency that enforces the law itself. The program is designed to educate employers and business owners on their obligations under the new law.

For more information, click to view the event invitation.

Date and Time
Tuesday, April 19, 2016
8:30 – 9:00 a.m. Registration and Breakfast
9:00 – 10:00 a.m. Program

Location
Reed Smith LLP
599 Lexington Avenue, 22nd Floor
New York, NY 10022

Program Contact
Alexandria Russo
arusso@reedsmith.com
+1 212 549 0285

Registration
Click here to register. This event is open to the public, subject to seating and capacity availability.

Objective Basis Needed for Psychological Fitness for Duty Exam

In a case of first impression in New Jersey, the Appellate Division cautioned that employers may only require an employee to undergo a mental health fitness-for-duty examination in limited circumstances.  Relying heavily on the EEOC’s Enforcement Guidance, the Court held that such examinations are only permitted when an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.”  In the Matter of Paul Williams, Township of Lakewood, 443 N.J. Super. 532, 120 A.3d 593 (Jan. 25, 2016) (emphasis added).

Case Background

Paul Williams (“Williams”) was a truck driver with the Lakewood Township Public Works Department for nine years when, in March 2013, the Township received an anonymous letter allegedly from a co-worker claiming that several employees who worked with Williams were concerned for their safety.  The letter also baldly alleged that “everyone knows [Williams] has some sort of mental issues” that put all of his co-workers “at risk.”  While citing general statistics of workplace violence and describing Williams as a “time bomb waiting to explode,” the only description of any alleged workplace misconduct contained in the letter was an undetailed assertion of “tirades and outbursts” – some of which were purportedly directed towards the union shop stewards.

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