New Jersey Employers Archives - Levy Employment Law

7

September, 2023

Workplace Investigations: Gain Clarity as to Meaning

“It’s bullying,” “I’m being harassed,” or “this is creating a hostile work environment.” As a workplace investigator these are phrases that I hear on a daily basis from complainants and their colleagues, and even sometimes from the respondents accused of harassing behavior. “Harassment” and “hostile work environment” are actually legal terms, by which I mean they have been defined in the law and behaviors that meet those legal definitions may create liability for an organization. The definition of “bullying,” as I discussed in a prior post, is less clear under the law, at least in most jurisdictions. Beyond the law, most organizations have their own policies that specifically define harassment, hostile work environment, and often bullying as well. The role of a workplace investigator is to get past the language used by the interviewees, and understand whether behaviors themselves are occurring that violate the organization’s policies.

Gaining Clarity

The only way to effectively determine what behaviors are occurring is by gaining clarity, through interviews, and potentially review of relevant documentation. It requires continually asking for examples and explanations, and never assuming that the investigator has correctly inferred what the interviewee meant.

When a complainant asserts that the complainant is being subjected, for example, to a “hostile work environment“ the investigator needs to ask follow-up questions, such as:

What do you mean by that?
Can you tell me more?
Can you give me some examples?
What does that look like?
What does that sound like?
How often has it occurred?
Is it only directed at you or others as well? And if others, who, what happened with them, can you provide those examples?

Layers of an Onion

We often speak in generalizations, and use idioms, slang, and vague language in our conversation. Perusing my notes from some recent investigation interviews I had conducted presented a range of such terminology, all cited as examples of “harassment” or a “hostile work environment”:

“has me on edge;”
X person “is targeted;”
“bad mouthing me;”
gave “illegal directives;”
it’s “gaslighting.”

With each of these phrases, it was not that I did not understand the literal words being used. But they provided no greater clarity as to the offending behaviors than the initial complaint of “harassment.”

Gaining clarity therefore requires digging deeper, almost like peeling back layers of an onion, to get to what the interviewee is actually experiencing or observing. We need to continuously ask ourselves whether we know what the interviewee means by the words being used or whether we are making inferences and assumptions. If the latter, then we need to peel another layer back, with further questions, to seek specific examples of what the interviewee was experiencing:

What do you mean this person has you “on edge?”
How is this person “targeted”?
“Bad mouthing” you in what way?
What do you mean by “illegal directives?”
I have found people use the term “gaslighting” in different ways. What does that term mean to you?

Sometimes, the response provided to clarify a phrase is exactly consistent with my assumption. But there are plenty of times when it is not. Gaining clarity through further questioning provides an extra layer of detail, which enables the investigator to better understand the underlying behaviors at issue, question others to determine if those behaviors have occurred as initially described, and analyze the context to ultimately reach conclusions as to whether policies were violated.

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In this periodic Workplace Investigations blog series, I will be exploring considerations that arise from our firm’s experience conducting workplace investigations and my work as an educator with Cornell University ILR school’s professional certificate programs on conducting effective workplace investigations.

By Tracey I. Levy

7

August, 2023

Treat Camp Counselors as Employees, Not Campers

Too many camp directors seem to be unaware of their obligations as employers and particularly the restrictions that employment laws place on employer inquiries. Even minors, when they are on payroll and providing services for the camp, must be accorded the full panoply of employment protections. This means that camp directors must familiarize themselves with what information they are permitted or required to gather from and provide to applicants and employees at each stage of the hiring, onboarding and employment process.

Impermissible Inquiries Pre-Hire

When assessing job applicants, employers should be focused on gathering information about how the applicants will perform in the job. Questions about skills and experience, and inquiries designed to gauge such characteristics as empathy, responsiveness, and commitment are all appropriate. Questions that pertain to protected characteristics are not appropriate.

This means that the following are not permissible at the application stage:

Asking an applicant’s age (beyond confirming if the individual has working papers if under age 18);
Asking about physical or mental health limitations (beyond confirming that the individual will be able to perform the essential functions of the job, with or without an accommodation);
Asking about religious practices; and
Asking about citizenship (beyond confirming the individual is legally authorized to work in the United States).

That which cannot be asked directly also cannot be asked indirectly. This means that an applicant cannot be requested to provide (or upload to a portal) documentation like passports, a driver’s license, proof of vaccinations (except where legally required) or other medical information.

Identifying information like the license or passport may be requested after an offer of employment, as options for proof of legal authorization to work. The medical history form that is used for campers is never an appropriate document to be requested of camp counselors.

Withholding Pay

Camp counselors, even if they are minors, are still protected as employees under the wage and hour laws. Many states, including New York, require that employees be paid at regular intervals for their time worked. Employees’ paychecks cannot be held hostage to ensure the employees’ compliance with workplace policies or procedures.

This means, for example, that employers cannot refuse to issue a paycheck to an employee who failed to timely provide documentation in support of an I-9 form or complete requisite tax withholding forms.

The remedy for the incomplete I-9 form is to put the person on unpaid leave or terminate employment. Individuals should not be permitted to work if they have not provided compliant information within three days of hire. Even so, they need to be paid for the first three days to the extent they performed work.

If the tax forms are not timely completed, the IRS and state tax authorities provide guidance for employers on certain default presumptions to be made in calculating tax withholdings. Withholding payment in its entirety is not a permissible option.

Providing a Safe Workplace

Employers are required to provide a safe work environment. All sorts of injuries and mishaps can occur in a camp environment. Counselors should be instructed promptly to report injuries that occur – regardless of the age or status of the individual injured. Camp counselors who experience on the job injuries may need medical treatment. If sufficiently appropriate treatment cannot be provided by the camp’s medical staff, workplace injuries that require more extensive medical attention are usually covered by workers’ compensation insurance. The injuries should be documented as such in the employer’s safety records and counselors should be provided with the appropriate forms and information to submit a claim for workers’ compensation coverage when they seek medical treatment. Counselors should not be expected to cover the cost of treatment through their own or their parents’ health insurance policy.

When in Doubt, Ask

Camps employ large populations of short-term workers, and often are a teenager’s first employer. The vulnerability and inexperience of these workers make them easy targets for workplace law violations. But camp counselors talk, they compare notes on their experiences, and many have parents who are more familiar with employee rights. Camps that shirk their responsibilities as employers risk low morale, poor retention and future hiring challenges, and legal liability. Far better is for camp directors to seek advice, in advance, regarding their obligations to their counselors and how they can operate within the parameters of the law.

By Tracey I. Levy

21

June, 2023

First of Its Kind Temp Workers Bill of Rights Impacts Temp Firms and the Businesses Retaining Their Services

New Jersey employers planning their headcount allocation and staff augmentation for the late summer and fall should be mindful of the significant new employment law protections that temporary workers in the state will have. The New Jersey Temporary Workers’ Bill of Rights, the first of its kind in the country, applies to individuals who are employed and placed by temporary help service firms with third-party clients to perform work in certain occupational categories as classified by the U.S. Department of Labor.

The law has six key components – notice of the terms of the engagement, record keeping for each assignment, guidelines to ensure safe and either free or non-obligatory transportation to the worksite, a right to be offered regular employment by the third-party client, pay standards and disclosures, and a prohibition against retaliation for exercising rights protected by the law. It applies to workers in the occupational categories of: food preparation and serving; building and grounds cleaning and maintenance; personal care and service; construction laborers; helpers in construction trades; installation, maintenance and repairs; production; transportation and material moving; and other protective service.

Requirements of Notice, Clarity and Predictability

For each placement, the law requires the temporary help service firm to provide the temporary employee in English and the employee’s primary language, details of the engagement, including:

contact information for the temporary health service firm, its workers’ compensation carrier, the client, and the Department of Labor and Workforce Development;
details as to what work is to be done, where, for how long and on what schedule;
the amount paid and how paid sick leave will be calculated;
terms of transportation that may be provided;
descriptions of special clothing, protective equipment and training that will be required, and what will be provided by who; and
whether meals are provided, by who and at what cost.

For multi-day assignments, the law additionally requires providing 48-hours’ notice to workers whenever possible before changing the schedule or location. Temporary workers must also be told in advance if they are being sent to the site of a strike, lockout or other labor dispute and notified of their right to refuse the assignment.

While these provisions are specific to the temporary help service firm, effective compliance will likely require that those firms look to their third-party clients for greater clarity with regard to the terms and conditions of work assignments, and may require greater notice and predictability in scheduling.

Obligations Extending to Businesses Hiring Temps

Significantly for businesses retaining temporary workers, the law prohibits those businesses (referred to as the third-party client) from paying a temporary laborer at a rate less than the average rate of pay and benefits for a regular employee of the client who is performing the same or substantially similar work with equal skill, effort, and responsibility, under similar working conditions. In other words, if you are augmenting your workforce with temporary help, you need to pay the temps at the same average wage rates as your regular employees doing that work.

The law also prohibits both temporary help service firms and their third-party clients from retaliating against a temporary worker for exercising any rights granted under the law. The law creates a rebuttable presumption that the termination or discipline of a temporary worker by the temporary help service firm within 90 days after engaging in protected activity is retaliatory. Both the temp firm and the third-party client can be privately sued for a violation of the law, and temporary workers can recover $20,000 in liquidated damages per incident of retaliation, or actual damages if they are greater.

The anti-retaliation provision and the notice provisions related to the terms of the engagement took effect on May 7, 2023. The remaining provisions of the law take effect on August 5, 2023.

By Tracey I. Levy

17

April, 2023

Rethink Employee Confidentiality Clauses as Fed Agency Restricts Scope Nationwide

How do you keep your core business interests and the goings on at your organization confidential when it feels like those strictures are under attack from multiple government entities? It may be time for you to redefine your priorities with respect to confidentiality.

Siege on Confidentiality and Non-Disparagement Clauses

There has, indeed, been something of a siege on confidentiality and non-disparagement clauses in the past five years. Originating with the #MeToo movement and disgust over the behaviors that had been quietly resolved through agreements that ensured the offending conduct would not be discussed with others, legislatures initially at the state, and more recently at the federal, levels have been passing laws prohibiting employers from binding employees to such agreements. As we discussed in our prior articles earlier this year (on federal and New York State confidentiality clause restrictions, multi-state compliance, and contractor agreements), the legislatures have not necessarily limited their restrictions to the types of behaviors reported in #MeToo. Rather the most recent laws go well beyond sexual harassment and sexual assault, to preclude limitations on disclosure of any potentially unlawful workplace behavior.

The myriad variations in these laws can make for cumbersome drafting of confidentiality and non-disparagement clauses, with multiple carve-outs and exceptions. Enter, then, the latest developments in this area, a recent decision by the National Labor Relations Board (the Board) and interpretive guidance issued by the Board’s general counsel, and it may be tempting for some employers to throw their hands in the air.

Recent Board Decision Adds Further Restrictions

In McLaren Macomb, 372 NLRB No. 58 (Feb. 23, 2023), the Board determined that the confidentiality and nondisparagement clauses embodied in an employer’s severance agreements were unlawful because they had a chilling effect on employees’ exercise of their “Section 7 rights” (essentially the right to organize collectively with regard to the terms and conditions of employment as provided under the National Labor Relations Act (NLRA)).

The clauses at issue included:

a provision that the terms of the Agreement should be kept confidential as to third parties and not be disclosed except to a spouse, for tax or legal advice, or as compelled by a court or administrative agency;
a provision that “information, knowledge or materials of a confidential, privileged, or proprietary nature” known to the employee through the employee’s job should be kept confidential; and
a prohibition against statements to employees or the general public that could disparage or harm the image of the employer or any of its affiliated entities and individuals.

The Board determined that the nondisparagement clause had an unlawful chilling effect on employees’ exercise of their Section 7 rights because:

it was not limited to matters regarding past employment with the employer;
it was not limited to criticism of the employer’s product or services;
it applied not simply to the employer but also to affiliated entities and individuals;
it was not time bound;
it was broad enough to preclude employee conduct regarding a legally protected labor issue or terms and conditions of employment; and
employees have a clear legal right to publicize labor disputes provided they do not do so in a manner that is too “disloyal, reckless or maliciously untrue.”

The Board similarly determined that the confidentiality provision was unlawful because it prohibited disclosure to any third person, with limited exceptions. The Board reasoned employees thereby would be inhibited from filing an unfair labor practice charge or assisting a Board investigation into the employer’s use of the severance agreement. The Board also felt the clause would prohibit employees from discussing the agreement with their coworkers or a union, and thereby supporting them with regard to workplace issues.

The Board’s concern about a chilling effect arose from the phrasing of the clauses themselves. The Board therefore held that even if an employer never had or would enforce the clause in a manner that interfered with an employee’s Section 7 rights, the broad words themselves were sufficient to violate the NLRA.

NLRB General Counsel Guidance Expands Restrictions

A month after the McLaren decision, Board General Counsel Jennifer Abruzzo issued interpretive guidance, in which she stated, among other key points:

the Board’s decision would apply retroactively;
most likely, only the unlawful clauses in an agreement would be invalidated, and not the agreement in its entirety;
the Board’s reasoning applies equally to other types of agreements with employees, such as offer letters;
narrowly-tailored confidentiality clauses that restrict the dissemination of proprietary or trade secret information for a period of time may be lawful;
narrowly-tailored non-disparagement clauses that preclude maliciously untrue statements that meet the legal definition of “defamation” may be lawful;
disclaimers or a “savings clause” may be helpful but will not necessarily cure overly broad provisions, and are recommended to enumerate nine specific ways in which employees can exercise their Section 7 rights; and
a range of other clauses, including noncompetition and nonsolicitation clauses, no poaching clauses, broad releases and covenants not to sue that go beyond employment claims, and cooperation clauses also may be suspect, depending on how they impact employees’ ability to exercise their Section 7 rights.

These new developments are immensely broad in their potential application as they invalidate clauses that are so commonly used as almost to be boilerplate language. Also, while the NLRA protects activity by individual contributors, and not supervisors, it is not always clear who qualifies as a supervisory employee, particularly in a nonunion environment. The General Counsel further cautioned that even supervisors are protected from retaliation for NLRA-protected actions. The NLRA additionally is not limited to unionized workplaces but rather covers every non-supervisory employee throughout the country. Finally, the retroactive application of the McLaren decision means that previously-signed agreements with employees are also at risk of being invalidated.

Employers Can Still Protect Their Core Business Information

So where does that leave employers? As a starting point, the new NLRB restrictions and the series of #MeToo-inspired restrictions have one common thread, in that they all recognize employers have a valid interest in protecting their trade secrets and proprietary information. A starting point, therefore, is for employers to reframe their agreements to separately and concisely protect only those legally recognized interests.

To the extent employers additionally want to ensure that employees will not say bad things about them, or recount information about bad things occurring at the organization, they need to get legal advice. As discussed in our prior articles, employers may be restricted from imposing confidentiality requirements as to certain behaviors, or at certain stages of the employment relationship. These restrictions may be outright prohibitions, or they may take the form of requiring disclaimers, consideration periods or additional waiver language.

Critically, since some of these changes are on a federal level, every agreement between an employer and an employee potentially is impacted. One issue to be discussed with legal counsel is whether, and to what extent, the employer wants to include in its agreements a disclaimer as to the types of employee activities that are not subject to a confidentiality or nondisparagement clause. At some point, the exceptions begin to swallow the rule and call into question the efficacy of having broad confidentiality or nondisparagement language.

Revisit Agreements with Legal Advice

The NLRB’s recent pronouncements are not the death knell for confidentiality and non-disparagement agreements. They do, however, necessitate revisiting those agreements, even if they were last reviewed as recently as February 2023, and identifying the information that an employer considers most critical to preserve as confidential, and the information as to which employers may need to tolerate some vulnerability of disclosure. Employers that take no action at this time and keep their current agreements in place run the risk that their confidentiality and non-disparagement clauses will be invalidated in their entirety, leaving the employer with no protection of even its core business interests.

By Tracey I. Levy

14

February, 2023

Workplace Breastfeeding Laws Offer General Consistency with Local Nuance

Breastfeeding protections have gone mainstream. Through the magic of a budget spending bill, nursing employees in workplaces throughout the country now have legal protections that will afford them break time and access to spaces outside of toilet stalls in which to express breastmilk. That is a sea change in many parts of the country, and a more modest shift for employers in the tri-state area of New York, New Jersey and Connecticut, where these protections have been afforded to varying degrees under state and local laws going back nearly a decade.

Amazingly, the new laws are fairly consistent with those already in existence, which makes compliance less burdensome for employers. The laws focus on requiring three things:

suitable space;
sufficient time; and
protected access.

Suitable Space

Make it Private

Nursing a baby often can be done discretely even in public, under cover of a light blanket, shawl or loose garment. Expressing breast milk to be stored in bottles for later use is an entirely different operation and experience, as anyone who has seen or used the various pumping apparatuses well knows. For that reason, the existing and new laws entitling employees to suitable space for expressing breast milk all prioritize that the space offer “privacy.” Often the laws clarify that means the space should be “shielded from view” and “free from intrusion.” And to dispense with the most obviously private but apparently not suitably hygienic option, the laws consistently state that the space cannot be a restroom or toilet stall.

Employers looking to achieve compliance should consider options like a private office or conference room with solid walls, blinds, or filtered glass – and a lock on the door or at least signage advising against entry while the room is in use. Even a storage closet, if appropriately cleared out, may be fit for this purpose.

Consider Proximity

While the federal law only mandates privacy, the state and local laws often also consider accessibility. New York, New Jersey, Connecticut and New York City, for example, all require that the designated space be in close proximity to the employee’s work area. This criterion serves employers’ interests, as well, in that it minimizes the time that the employee needs to spend away from the work area.

Furnish Appropriately

Some of the laws additionally require that the designated space be outfitted appropriately to its purpose. New York State and New York City require that the space be well lit and include a chair and working surface. New York City and Connecticut require access to an electrical outlet, and New York City further requires that employees have nearby access to refrigeration. New York State recognizes greater variability in work locations and therefore requires access to an outlet only if the workplace is supplied with electricity, and access to refrigeration if it is available. Connecticut also requires nearby refrigeration or an employee-provided cold storage unit. The New York state and city versions finally require access to clean running water.

Optimally, therefore, employers looking to achieve compliance should be looking to provide the following furnishings and equipment:

a chair and work surface;
ample light;
an electrical outlet; and
nearby running water and refrigeration.

Employers that incorporate those items will meet their obligations under the current jurisdictional variations in the law.

Undue Hardship Is Considered

Employers with fewer than 50 employees are exempt from the federal PUMP Act if they can demonstrate that compliance would impose an undue hardship. Comparable state and local laws similarly recognize an undue hardship exception, but employers invoking this exception should be prepared to demonstrate that they reasonably explored options for providing suitable space and were unable to do so.

Sufficient Time

Access to a suitable location would be virtually meaningless if employees could only use it on their meal break. The laws therefore additionally require employers to provide “reasonable” break time for employees to express breastmilk. The federal “PUMP Act” grants this right to break time for up to one year after the child’s birth. The New York State version extends the protection to up to three years after childbirth, while other state laws are not specific as to duration.

New York State has issued guidance that employees are entitled to break times of at least 20 minutes in duration in these circumstances, but can use more or less time as needed. The U.S. Department of Labor previously had advised that a break of 15 to 20 minutes to pump, plus some time for set up and clean-up, was most common. The DOL has removed any specific reference to duration in its most current Fact Sheet on break time for nursing employees. Employers generally are not required to pay employees for break time taken to express breast milk, provided the time is actually a break and the employee is not performing work while pumping.

Reasonableness is a Variable Threshold

“Reasonableness” is determined through the same process that employers are expected to follow for accommodating employees for other legally-protected reasons. In New York City, the process is called a “cooperative dialogue,” and the city’s phrasing is indicative of that which is expected of all employers in this context – some degree of discussion, consultation and consideration of the employee’s needs in relation to the nature, size and operations of the employer’s business.

The duration of break time needed for expressing breast milk may include factors beyond the employer’s control, such as the speed of the pump itself, as well as factors that the employer can influence. For example, employers that offer a secure location for employees to store their breast pump in close proximity to the employee’s work space and/or the designated break room can thereby reduce the time needed for set-up and cleanup.

One of my clients was frustrated that an employee was taking hour-long breaks to express breast milk. In speaking with the employee, the employer learned that each break period, the employee would leave the work area, go out to her car in the parking garage to retrieve her breast pump and walk to the designated room (waiting for elevators along the way), and then return her pump to her car before coming back to the work area. A secure storage solution was all that was needed to cut the break time in half. The more comfortable an environment the employer can provide, and the fewer obstacles an employee faces in cleaning and storing needed equipment for pumping, the less time an employee will need to be away from productive work.

Protected Access

All the laws related to nursing employees include an assurance that the break time and designated spaces are legally-protected. This means that employers cannot discriminate or retaliate against employees for requesting or using the time or facilities, or for breastfeeding in the workplace. Some of the laws, including New York State, New York City and Connecticut, additionally require that employees receive notice of their rights with regard to expressing breastmilk. In New York, the state and city laws additionally require employers to have written policies with specifically-delineated provisions.

Compliance with these varied laws is more readily achievable than, for example, many of the paid leave laws. Employers must still, however, note the variations in legal requirements and adjust their workplace practices accordingly.

By Tracey I. Levy