Schwartz Kelly, LLC

A New Jersey business was recently fined $1,000 for posting a hiring advertisement that stated job applicants “must be currently employed.”  The employer challenged the law complaining that the state did not provide sufficient notice of the new law.  The state countered that a public hearing had been conducted and a 60 day  comment period was provided for employers.  This case is the first reported violation under the New Jersey law.

 The law went into effect on June 1, 2011.  It precludes New Jersey employers from discriminating against the unemployed in print and electronic job advertisements. This is the first law of its kind in the United States to address hiring discrimination against individuals who are not currently employed.  A $1,000 fine is the penalty for a first violation.  A second and third violation is met with a $5,000 and $10,000 fine, respectively.  New Jersey employers should review the qualifications listed for any of their job postings and make any necessary changes in order to be fully compliant with the law.

As more employees continue to receive company-issued smartphones from their employers, questions arise concerning the Fair Labor Standards Act and other state wage and hour laws.  Employers should be aware that nonexempt employees using smartphones for work-related activities after normal work hours must be compensated for all work performed outside of the office.  This may include responding to emails or making work-related telephone calls.

If this situation is not addressed by employers, this could result in unreported work hours or even extensive overtime.  To prevent this from occurring, employers should communicate their work expectations to nonexempt employees that are issued smartphones.  If it is necessary for nonexempt employees to work after normal work hours, employers should develop a process that allows employees to accurately account for their time.  This will prevent nonexempt employees from overstating their work hours.  Employers might also consider developing a training program to focus on this area. If you have any questions on how to address this issue please do not hesitate to contact us.

The National Labor Relations Board (NLRB) recently approved a final rule requiring certain private employers to post a notification informing employees of their rights under the National Labor Relations Act (NLRA).  The notice is required to be posted beginning January 31, 2011.  The NLRB believes that many employees are unaware of their rights under the NLRA.  The notice, which should be 11 by 17 inches in size, should be posted in a common area visible to all employees.  The notice should also be posted in all company office locations.  A copy of the notice can be downloaded from the NLRB’s website at https://www.nlrb.gov/poster.

 The final rule does not require that all private employers post this notice.  For example, some small businesses are exempt if they meet certain criteria.  For a full list of exempt employers, please see https://www.nlrb.gov/faq/poster.  While the NLRB does not have enforcement authority to fine noncompliant employers, employees may file an unfair labor practice claim against an employer before the NLRB.  If you have any questions about your
obligations under this new rule please contact us.

Under a newly enacted law (L. 2011, c 87), the New Jersey Department of Labor recently revised Form BC-10 which is used to provide terminated employees with information on how to file a claim for unemployment benefits.  As indicated on the form, employers must provide all separated employees with a completed Form BC-10 at the time of their separation in accordance with Section 6 (a) of the Unemployment Compensation Law of New Jersey and Employment Security Rule N.J.A.C. 12:17-3.1. Separated employees include permanent dismissals as well as temporary departures.  This includes employees that were terminated for a period less than seven days.  Employers should make sure to include on the form the expected date of return for any temporary laid off employee.  Form BC-10 stresses the importance of filing a timely claim as a delay in filing may negatively impact a former employee receiving unemployment benefits.

Employers should accurately fill-out Form BC-10 and review it with a separated employee before providing them with the form.  A copy of Form BC-10 can be found on the New Jersey Department of Labor’s website under Employer Forms at lwd.dol.state.nj.us/labor/ui/content/forms_index.html.  If you need assistance with these procedures, please call us.

The IRS recently announced an amnesty program whereby employers who improperly classified workers as independent contractors may re-classify workers as employees and make a small payment towards back taxes that are consequently due.  Employers sometimes classify workers as independent contractors to avoid payroll taxes, such as Social Security, Medicare, disability and related taxes.  Independent contractors also are not protected by wage and hour laws, overtime and workers compensation insurance, thus saving on premiums.  But making the decision to classify workers as independent contractors is a tricky one and fraught with many perils if the employer gets it wrong.  The justification for classifying workers as independent contractors is based on numerous factors and there is no clear guidance in the tax code.  Thus, it is important to seek the advice of experienced employment counsel in order to make the right decision.   The attorneys at Schwartz Kelly, LLC can help employers navigate this complex decision-making process.

The New Jersey Appellate Division recently affirmed a case involving privacy rights in favor of defendants-respondents Innovative Investigations, Inc. and its principal Richard Leonard.  In Kenneth Villanova v. Innovative Investigations, Inc., et. al., Mr. Villanova brought suit against Innovative Investigations, after he discovered he was being followed by the investigative firm at the request of his wife who suspected her husband of cheating.  Mrs. Villanova also hid a global positioning system (GPS) tracking device in the glove compartment of their jointly-owned vehicle.  The GPS device provided Mrs. Villanova with a report over the internet about her husband’s whereabouts.  Mr. Villanova alleged his privacy rights were violated.

 The Appellate Division ruled that because the tracking of the vehicle by Innovative Investigations occurred while driving on public roadways, an expectation of privacy did not exist.  In addition, nothing in the GPS tracking reports that Mrs. Villanova received identified Mr. Villanova in a private location.  The court held that the defendant would only be held liable for invasion of privacy if the surveillance occurred in a private place.

 The area of privacy law, especially for employers, is changing rapidly.  If you would like assistance in ensuring that your company’s policies do not violate privacy laws or doctrines, please feel free to call.

A new amendment to the Fair Credit Reporting Act (FCRA) went into effect on July 21, 2011.  The changes require employers that use credit scores during the hiring process to disclose to the job applicant that a credit score was used.  The employer must also disclose the credit score, the range of credit scores available, a list of key factors that adversely affected the credit score and the name, address and phone number of the credit reporting agency so that the applicant may dispute any errors.  This information, including a description of the candidate’s rights under the statute, must be provided to the applicant prior to taking an adverse action.  Before the new amendment, employers commonly received only credit reports which did not contain a credit score.  Employers should not forget that they must receive the job applicant’s written consent prior to requesting a credit report on the candidate.

Credit reports and scores are commonly used during the hiring process for employees that manage company assets, have access to cash or have unsupervised customer access.  If you
would like help identifying of your company’s obligations under the new amendment to the FCRA feel free to call us.

On July 6, 2011, Verizon Communications offered to pay $20 million to settle a class action disability discrimination lawsuit filed by the Equal Employment Opportunity Commission (EEOC).  The settlement proposal is currently being considered by the court. The lawsuit argues that Verizon’s attendance policy violated the Americans with Disabilities Act for its failure to accommodate employees with disabilities.  According to the policy, employees that accrued a certain number of “chargeable absences” would result in disciplinary action or even termination.  The EEOC alleged that Verizon failed to take into consideration employees who were absent due to their disabilities.

Companies should be aware of the potential for an increase in future lawsuits brought by the EEOC.  The EEOC is focusing its enforcement efforts on disability discrimination and accommodations.   Employers should have an attendance policy in place that is flexible enough to allow for exceptions for employees with disabilities.  While job attendance is necessary for all employees, employers are required to engage in a dialogue with employees with disabilities and make reasonable accommodations.  In terms of job attendance, this may include allowing an employee with a disability to work from home in a limited fashion or adjusting their work day hours.

The New Jersey Appellate Division affirmed a final decision of the Board of Review finding that an employee and unemployment claimant (Paolini) was correctly disqualified for unemployment benefits for having left work voluntarily without good cause attributable to the work.  As his resignation email made clear, Paolini elected to leave his employment due to a number of personal reasons – the health of his wife, the presence of family as well as another job opportunity in Florida.

In his resignation email, Paolini did not mention that he was leaving his employer, Monarch, for any reason connected with his work, such as his reduction in wages, loss of overtime or financial distress.  Paolini also never discussed his financial circumstances with any of his supervisors at Monarch.  Even if Paolini’s reduced pay may have been a factor in his resignation, it did not compel his leaving Monarch.  Additionally, the wage reduction, amounting to less than a 12 percent pay cut, is not the “substantial reduction” in wages that constitutes good cause attributable to the work.

25-2-2787 Paolini v. Board of Review, App. Div. (per curiam) (8 pp.)