East Coast
The New York State Department of Labor is preparing new wage regulations that will mean significant changes for hospitality employers.
New York Labor Law Section 195.1 requires employers to obtain signed acknowledgements of receipt from newly hired New York employees that those employees have received written notice of their pay rate and pay day and if applicable, their overtime rate, before commencing work.
Following Section 195.1's enactment, the New York State Department of Labor (DoL) issued mandatory Section 195.1 Notice and Acknowledgement forms that raised a host of issues. After receiving feedback from Littler Mendelson and others regarding those issues, the DoL changed course. The DoL now permits employers to create their own Section 195.1 notice and acknowledgement forms. However, it has issued revised Model Notices of Pay Rate and Payday, and Guidelines and Instructions that impose additional requirements on employers not found in the statute. Most importantly, among them, the DoL now requires employers to consider whether newly hired employees may be exempt from overtime pay and to identify the specific overtime exemption(s) on the Notice and Acknowledgement form.
The New Jersey Supreme Court holds that the statute of limitations begins to run under the New Jersey Law Against Discrimination as of the date of the discrete retaliatory act, but a post-discharge retaliatory act may be independently actionable.
The Pennsylvania Human Relations Commission recently proposed guidelines that will apply a presumption of disparate impact discrimination when an employer rejects African American and Hispanic applicants based on a prior criminal conviction.
The District of Columbia Court of Appeals has expanded the reach of the antidiscrimination provisions of the District of Columbia Human Rights Act (DCHRA). The court held that employees located outside of D.C. may bring claims for discrimination under the more protective provisions of the DCHRA so long as the discrimination decision was made in D.C.
Maryland's Department of Labor is preparing to enforce new regulations that will affect businesses in the construction and landscaping industries that use independent contractors and will likely begin to target businesses in other industries, in a push to identify and penalize employers misclassifying employees as independent contractors.
New York City may soon become the fourth city–after San Francisco, Washington D.C. and Milwaukee–to pass legislation requiring employers to provide paid sick leave.
New York has amended its Labor Law to increase the remedies and existing penalties against employers for failing to comply with statutory wage obligations and protecting employees against retaliation.
The Massachusetts Supreme Judicial Court recently issued a ruling that increases the amount of damages a worker can receive if he or she has been misclassified as an independent contractor, as opposed to an employee, under Massachusetts law.
New York Governor David Paterson has signed into law an amendment to New York State's Human Rights Law, prohibiting covered New York employers from discriminating against employees in compensation or other terms of their employment, or from refusing to hire or terminating an individual because she or he is a domestic violence victim.
In July 2009, New York Governor David Paterson signed two bills that amend the state's insurance laws and affect group health plans sponsored by both large and small employers. The new laws lengthen the period that employer-sponsored health insurance coverage is available following termination of employment and expand the availability of health insurance coverage for older children.
The Massachusetts Supreme Judicial Court recently held that state law discrimination claims may be subject to arbitration, provided that the arbitration provision clearly and unmistakably demonstrates the parties' intent to arbitrate such claims.
A recent decision confirms that the rising tide of wage and hour class actions currently affecting employers in Massachusetts is unlikely to abate any time soon. The case also provides guidance on interpreting the recently amended Massachusetts independent contractor statute.
Effective October 26, 2009, New York employers must obtain from all new employees a written acknowledgment that their employer provided them with information about their pay day, pay rate and, if they are nonexempt, their overtime rate.
In a victory for employers with mandatory wellness initiatives, a Massachusetts federal judge in Rodrigues v. EG Systems, Inc. dba Scotts LawnService, dismissed a lawsuit by an employee who had started work, but whose employment, contingent on successful completion of a nicotine screen, was terminated when he tested positive.
Three recent decisions from the First Department of the New York Appellate Division hold that the New York State and City Human Rights Laws apply to, and prohibit, a far broader array of conduct than previously stated.
The New York State Human Rights Law has been amended to permit the imposition of civil fines upon a finding of discriminatory conduct by the Commissioner of the State Division of Human Rights or by a court, in an amount not to exceed $50,000, but up to $100,000 if a discriminatory act is found to be willful, wanton or malicious.
Allegheny County, the county in which Pittsburgh is located, joins other Pennsylvania municipalities and counties in prohibiting businesses and organizations from discriminating on the basis of sexual orientation and gender identity.
Effective October 1, 2009, any retail establishment selling goods or services to the general public in Connecticut must allow customers to use employee-only restrooms if a customer can produce documentation of an eligible medical condition. While the Act seems well intentioned and provides some security protections for retail employers, establishing compliance may prove difficult.
New legislation recently signed into law by the Governor of Maryland amending the Maryland Flexible Leave Act eliminates many of the concerns shared by Maryland employers, and clarifies the effect of the original Act signed into law last year. Other legislation passed by the Maryland General Assembly expands the right of individuals to initiate discrimination litigation, as well as restricts the use of independent contractors in the construction and landscape industries.
The New Jersey Department of Labor and Workforce Development has issued regulations interpreting the state's newly implemented paid family leave law. The regulations provide guidance on important aspects of family leave insurance benefits under the new leave law. Employee contributions under the new law began on January 1, 2009, and eligible employees can take advantage of paid leave benefits beginning July 1, 2009.
Recognizing the dangers of identity theft in the workplace, New York has joined a growing number of states that have enacted laws intended to protect employees from identity theft.
The New Jersey Supreme Court holds that striking employees are entitled to unemployment benefits if there is not a "stoppage of work" resulting in the employer's production being curtailed by at least 20 percent.
A Massachusetts appellate court holds that an employee's objection to a mere proposal is not enough to trigger the protection of the state medical provider whistleblower statute.
The Massachusetts Supreme Judicial Court decides that Massachusetts state law holds employers to a stricter standard than federal law when considering employee requests for religious accommodation exceptions to personal appearance policies.
Beginning February 1, 2009, New York employers must add to their workplace postings and provide information to applicants and employees information regarding the state's law and regulations limiting how criminal convictions may be considered in employment decisions.
Rhode Island has joined the ranks of many states across the country mandating E-Verify usage for its contractors and, following publication of the Rhode Island Department of Administration's emergency regulation in October, contractors and proposed contractors must comply.
New Massachusetts regulations effective January 1, 2009, mandate the development of a "written, comprehensive information security program" to safeguard the personal information of Massachusetts employees and consumers. These new regulations represent a new phase in efforts by states to combat identity theft. They should be a wake-up call to employers and their human resources departments to implement policies and procedures to safeguard employees' personal information.
Effective October 1, 2008, the Maryland Flexible Leave Act (MFLA) entitles employees to use accrued personal paid leave provided by their employer, to care for an ill family member. Essentially, the law seeks to broaden employer policies that permit workers to use a sick or vacation day only for their own illnesses.
Effective February 1, 2009, New York will join the growing number of states that have supplemented federal notification requirements for large layoffs. However, unless technical corrections to the new statute are made, complying with the requirements of NY WARN will be confusing and difficult especially when the requirements of Fed WARN are taken into account.
Rhode Island's new Family Military Leave Act requires Rhode Island employers to provide unpaid leave and reinstatement to qualifying spouses and parents of military servicemembers.
In State v. Lynch, 287 Conn. 464 (2008), the Connecticut Supreme Court upheld the criminal conviction of an employer who failed to pay wages. The court held that an employee's agreement to defer the accrual of wages, until the employer can afford to pay them, does not absolve the employer from criminal liability for wages that are already past due at the time of the agreement. The supreme court drew a distinction between employees' agreements to defer the accrual of future wages, which the court previously held are valid, and agreements to defer the accrual of past due, previously accrued wages, which are invalid because they violate public policy.
Consistent with decisions in other states, the New Jersey Supreme Court rules that a deferred compensation plan with vesting periods and forfeiture provisions does not violate state wage and hour law or public policy.
New York requires employers to provide leave time for employees to donate blood and to provide nursing mothers reasonable break time to express breast milk in the workplace. Guidelines recently issued by the New York State Commissioner of Labor now require covered employers to notify employees of their rights under these laws.
New Connecticut legislation imposes privacy protection obligations upon employers, and threatens steep financial penalties for non-compliance. As of October 1, 2008, Connecticut employers must create, publish and maintain a policy protecting any retained Social Security numbers from disclosure and must take affirmative steps to safeguard a broad spectrum of private information.
Pennsylvania has joined a growing number of states that prohibit smoking in most public places, including workplaces. Affected employers must comply with new obligations under this law by September 11, 2008.
On June 10, 2008 the New York Court of Appeals issued a long-awaited decision confirming that employers may lawfully charge expenses against employee commissions. The court's ruling, in conjunction with the legislature's October 2007 amendment of the commission salesperson provisions of the New York Labor Law, provides employers with a roadmap for how to permissibly structure commission-based compensation arrangements.
The Third Circuit Court of Appeals, in a case of first impression, has extended the protections generally afforded to pregnant women under Title VII and Pregnancy Discrimination Act to women who elect to terminate their pregnancies.
Washington, D.C. becomes the second city to pass a law requiring employers to provide paid leave to employees. Effective November 13, 2008, most employers in D.C. will be required to provide at least three days paid leave for employees absent for their own illness, to care for family members who are ill and for absences when an employee or an employee's family member is a victim of stalking, domestic violence, or sexual abuse.
The Massachusetts Attorney General has issued an advisory opinion that clarifies when a worker is properly classified as an independent contractor under the state's extremely narrow independent contractor statute. With a new law requiring treble damages for all violations of the Massachusetts wage and hour law and the state's stepped-up enforcement activity, employers have even greater incentive to ensure that their workers are properly classified.
In a rare decision on compensation issues, the Connecticut Supreme Court has decided that an employee is not required to repay advances of unearned commissions unless there is an express or implied agreement that requires such repayment. The decision in Ravetto v. Triton Thalassic Technologies, Inc., makes clear that Connecticut employers that pay commissions need to carefully review their commission plans and all documents that describe commission to ensure they are sufficiently clear and specific to require an employee to repay advances of commissions that he or she has failed to earn.
New Jersey is poised to become the third state to provide paid family leave benefits to employees, meaning increased personnel and administrative costs for all New Jersey employers.
Massachusetts becomes the first state in the country to mandate treble damages for all wage violations, regardless of employer intent.
New Jersey's newly enacted plant closing law creates increased obligations and significant exposure to penalties for covered employers.
Beginning December 13, 2007, New York’s Labor Law will require most employers to provide employees leave time annually to donate blood.
On October 16, 2007, employee commission agreements in New York will be subject to new requirements. Employers in New York should pay special attention to this and other upcoming changes to New York's Labor Law to ensure timely compliance.
On August 15, 2007, Governor Spitzer signed into law a bill providing new workplace rights and protections for nursing mothers. The law, which amends the New York Labor Law, requires employers to provide "reasonable" break time so nursing mothers may express breast milk; to make "reasonable efforts" to provide a private place for doing so; and prohibits discrimination "in any way" against an employee who chooses to express breast milk in the workplace.
In a potentially far reaching decision, the New Jersey Supreme Court ruled that professional employees labeled as independent contractors may be covered as "employees" under New Jersey's whistleblower statute. The decision adopts the test used to evaluate independent contractor status under New Jersey's fair employment practices law, the Law Against Discrimination.
All Massachusetts employers, including employers with ERISA plans, have obligations under the state's new health care reform law. The state continues to issue new regulations and forms, with more deadlines on the horizon.
The New Jersey Division on Civil Rights recently amended the regulations that interpret the New Jersey Family Leave Act. By reconciling certain aspects of the state law with the federal Family and Medical Leave Act, these amendments have simplified the family and medical leave obligations of New Jersey employers.
New Jersey Supreme Court holds that an employee's ability to perform essential job functions shapes the employer's duty of reasonable accommodation.
In a case of first impression, the New Jersey Supreme Court ruled that individuals pursuing statutory retaliation claims under the state's fair employment practices law must show they possessed a reasonable good-faith belief for initiating a complaint that triggered an alleged retaliatory employment action. This decision underscores the importance and utility of investigating and documenting employees harassment, discrimination and retaliation complaints.
As the one-year anniversary of Massachusetts' sweeping health care reform law approaches, employers should be taking action to ensure they are prepared to comply with the law's complex requirements, many of which take effect on July 1.
In a case of first impression, a federal district court in New Jersey has ruled that an employee is bound by an agreement with his employer to file any claim in connection with his employment, including any USERRA claim, within six months of termination of his employment. The court held that the plaintiff-employee's USERRA claim was time-barred even though the court held USERRA claims can normally be brought within four years.
New York's highest court holds that departing employees seeking to challenge forfeiture of post-employment compensation for violating a restrictive covenant must satisfy a stringent "constructive discharge" standard.
Massachusetts' child labor law was revised in January, the first significant update in over 50 years. Employers that hire teenagers should review their practices to ensure compliance with the new requirements, which became effective on January 3, 2007.
New Jersey enacts legislation providing state family medical leave to employees in a civil union as well as prohibiting discrimination on the basis of civil union status, gender identity and gender expression.
Attorneys investigating harassment or discrimination claims need to take precautionary steps before, during and after the investigation to avoid claims for negligent misrepresentation based on comments made during the investigation.
The Third Circuit in a case of first impression holds that in certain circumstances an employer can reduce employee bonuses by a pro rata amount to account for employee absences due to FMLA leave. To avoid potential liability, including potential class action liability, employers should ensure their bonus plans are consistent with the Third Circuit’s ruling before making any pro rata bonus reductions.
Massachusetts' sweeping health care reform law will affect every employer in the state and may be a national model for expanding health care.
Effective December 15, 2005, New York employers must obtain and keep on file proof of age for employees between 18 and 25.
Effective April 15, 2006, New Jersey's Smoke-Free Air Act bans smoking generally in all indoor public places and workplaces, with limited exceptions. The Act places requirements on building owners and operators to ensure compliance with the smoking ban, and employers should take steps to minimize the risk of violating the Act.
The Court held that pregnant employees are not entitled to preferential leave treatment under the New Jersey Law Against Discrimination ("LAD"). Employers do not violate LAD as long as they treat pregnant employees no differently than non-pregnant employees who require medical leave.
The Appellate Division defined the circumstances under which an employer may be held liable for damages as a result of providing an inaccurate and/or false employment reference for a former employee. Littler recommends steps to take to minimize the potential for legal exposure.
This ASAP updates the prior ASAP issued in February, 2005, relating to the decision of the Pennsylvania Commonwealth Court prohibiting non-attorneys from appearing as representatives of corporate employers in unemployment compensation proceedings. Effective immediately, a new amendment signed by Governor Rendell restores the prior practice of allowing non-attorney representation.
Substantial increases in the state's minimum wage and the creation of a permanent "New Jersey Minimum Wage Advisory Commission" signal new government proactivity on employee's behalf.
The Court found that corporations may not be represented by non-lawyers at unemployment compensation hearings. Littler details the case and outlines new guidelines presented by the Unemployment Compensation Board of Review.
In December 2004, the New York state legislature voted to increase the minimum wage by 28% over a period of twenty-five months, beginning January 1, 2005. Littler outlines the plan.
Passed in the wake of the Enron and WorldCom scandals, this legislation requires New Jersey businesses employing more than 10 employees to annually distribute to their employees a written or electronic summary of their rights and protections under the state's ?whistleblower? statute.
In a recent State Superior Court ruling, Massachusetts held that employers must not only carefully craft non-competes in order to protect their core assets, they must also consistently maintain them.
The Act expressly amends several state statutes to include domestic partners within their coverage, granting same-sex couples and unmarried opposite-sex couples legal status and many, but not all, of the same rights as legally married couples. Littler reviews the impact on New Jersey employers.