I was fortunate enough to be asked to contribute to this month’s edition of the NJ Business Magazine. The link to the digital version of the magazine can be found here. My article entitled “Retaining and Attracting Staff Without Using Big Dollars” can be found on page 20. http://digital.njbmagazine.com/publication/?i=156119
“No Ugly People” Policy? No Problem Under the LAD!
Posted in GeneralRecently, Abercrombie & Fitch CEO Mike Jeffries has come under fire for what some may call the company’s “no ugly chicks” approach to marketing and retail.
Jeffries’ remarks from an interview with Business Insider were published on the elitedaily.com website, which has also questioned whether Jeffries is “the worst CEO in the world” based on “The 13 Most Ridiculous Things Mike Jeffries … Has Said.”
While Jeffries “anti-fat” and pro-“cool kid” comments may be insensitive –and even bigoted – towards those that who do not meet the traditional American standard of beauty, employers, such as Jeffries, who display a “beauty bias” in their employment-related decisions cannot automatically be accused of illegal discrimination.
The New Jersey Law Against Discrimination (LAD) prohibits discrimination on the basis of “race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectational or sexual orientation, genetic information, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer.”
Notably absent from the LAD’s comprehensive list of protected statuses and/or characteristics is appearance and appearance-related attributes like height, weight, and hair or eye color. This is because employers have a “valid interest in regulating the image that its employees present to the public.” Marrero v. Camden County Bd. of Soc. Servs., 164 F.Supp.2d 455, 477 (D.N.J. 2001). Thus, employers cannot reject applicants or make employment decisions on the basis of a protected or immutable characteristic such as race or age, but they can do so based on subjective ideals of beauty.
Therefore, if an employer makes a particular employment decision on based on what it believes to be an individual’s “attractiveness,” and it has a legitimate, non-discriminatory business reason for doing so, the LAD does not permit an individual who was negatively impacted by that decision to pursue a claim for “appearance discrimination.”
While so-called “appearance discrimination” claims have been on the rise in recent years – particularly against the hospitality and casino industry – it does not appear that New Jersey Courts (or the Legislature) are particularly interested in expanding what is already one of the most inclusive anti-discrimination statutes in the nation.
So Mike Jeffries can relax – Abercrombie’s “beauty bias” is (for now) legal discrimination under the LAD.
NJ Legislature to Take On Enforcement of Non-Competes
Posted in Employment PoliciesI would like to thank Ian D. Meklinsky, Esq. for his guest contribution to the blog for this entry.
On April 4, 2013, Assembly Bill 3970 was introduced in the NJ Legislature. The bill would invalidate any covenant, contract, or agreement not to compete, not to disclose, or not to solicit, entered into by any individual with the individual’s most recent employer, if the individual is found to be eligible for unemployment compensation benefits. The bill would not, however, apply to any covenant, contract, or agreement entered into before the effective date of the law should it be enacted.
The text of the bill can be found at http://www.njleg.state.nj.us/2012/Bills/A4000/3970_I1.HTM.
This bill, if enacted, would cause significant issues for employers in NJ. By way of example, employers would lose any contractual ability to prevent an employee from being employed by a direct competitor. Additionally, by the explicit language of the bill, an employer would not be able to enforce – at least by contract – any confidential information non-disclosure clause. Furthermore, the bill does not make any distinction in the enforcement of covenants in the case where employees are terminated for bad acts.
The enforceability of these types of agreements has, in NJ, been determined by the courts based upon a number of factors all judged against the backdrop of an employer’s attempt to protect its legitimate business interests. The standards established by the courts are not unique or troublesome and have been fleshed out over the years through a well-defined body of case law. To shift the forum for litigating the enforcement of these types of agreements to the unemployment compensation arena – an arena where there is little, if any, discovery and the presumption is that the employee is entitled to benefits – will force employers not only to litigate the benefit eligibility before the administrative agency but to potentially appeal all the way to the appellate courts. This is simply a bad idea.
While some employers may not view the bill as directly impacting their businesses today, they might feel differently in the future especially if an employee is promoted to a more critical position within the organization with access to the “secret formula” or a critical business plan. In order to provide for the most protection in the future, should the bill be enacted, employers should consult today with legal counsel and put in place a plan to have as many employees enter into these types of agreements now so they are enforceable in light of the fact that the bill does not apply retroactively.
Ian was recently quoted in the NJBIZ article on this topic, “Heated discussion as attorneys debate merits of noncompete bill.”
Should you have any questions, please contact Ian D. Meklinsky at imeklinsky@foxrothschild.com.
A New Law that Employers may not “Like”
Posted in Employment Policies
The New Jersey legislature recently passed a bill that would prevent employers from requiring prospective or current employees to provide their login information for social media websites as a precondition to employment. This so-called “Facebook Law” is currently awaiting the Governor’s signature and is expected to be signed.
In addition to prohibiting employers from asking for login information, the law would also prevent employers from even asking if the employee or applicant has a profile on a social networking site. This added restriction makes the New Jersey law broader than similar laws that have been passed in other states.
However, employers should be aware that the new law would allow employers to investigate claims of “cyber bullying” through social networking sites and makes some exceptions for what employers can do in that instance. Another caveat is that the social networking profile must be a “personal account” which means that profiles set up for business purposes of the employer are not covered by the legislation.
Fortunately, if and when the Governor signs this bill into law, the effective date is pushed back to allow employers to update their social media policies to be consistent with law. Should employers need assistance in updating these policies, please do not hesitate to contact one of us!
Beware of Sharks: May an Employer Discipline an Employee Who Vacations During FMLA Leave?
Posted in TerminationsA story circulating through British newspapers presents food-for-thought for New Jersey employers. 62-year-old Paul Marshallsea made headlines last week when a video surfaced of Marshallsea wrestling a 6-foot shark away from a group of swimming children in Brisbane, Australia. The tragedy in this otherwise heroic story? Because Marshallsea’s act of bravery — and vacation — occured while he was on a stress-related leave of absence from work, when Marshallsea’s employer saw the video, the employer terminated his employment.
Said Marshallsea’s employer, in support of the termination:
Whilst unfit to work, you were well enough to travel to Australia and, according to recent news footage of yourself in Queensland, you allegedly grabbed a shark by the tail and narrowly missed being bitten by quickly jumping out of the way; the photographs and footage appearing in newspapers and television broadcasts.
The story has led some to wonder whether the termination of Marshellsea’s employment would pass muster under the FMLA. The answer: it depends.
Courts have made clear that employers do not violate the FMLA by promulgating sick leave policies that require employees who are out of work to “remain in the immediate vicinity of their home during the period of such a leave.” See Pellegrino v. Communications Workers of Am.
Courts have also upheld as lawful terminations of employees whose employers have demonstrated that the employee lied about needing FMLA leave in order to take an otherwise unapproved vacation. See Robbins v. U.S. Foodservice, Inc.
However, employers must consider the nature of an employee’s leave before disciplining that employee for vacationing during leave. Particularly when an employee’s leave is related to stress or anxiety, leisure activities and even full-blown vacations may not necessarily constitute FMLA fraud. For example, one court recently held that an employee who was on stress-related leave did not abuse her leave when she used the leave time to “go out for lunch, get a haircut, attend a holiday party, and have dinner and drinks with a friend.” Hyldahl v. AT&T.
The employee’s physician, who had certified to the employer that the employee’s stress prevented her from performing the functions of her position, had nevertheless approved such leisure activities as “coping” strategies. Accordingly, holding that the employer had violated the FMLA when the employer, citing the employee’s leisure activities, terminated the employee’s position for “FMLA fraud,” the Court awarded the employee liquidated damages.
The lesson? Before disciplining an employee for FMLA abuse, make sure that the activities you perceive as abuse are indeed inconsistent with the employee’s leave. Moran v. Redford Union School District.
Communication is key. It is not illegal for an employer to require an employee to notify the employer when he or she intends to travel during FMLA leave. Require certifications from the physicians of leave-taking employees. And if an employee does something during her leave that raises a red flag, before disciplining her, clarify with the employee or her physician that although the employee cannot perform the functions of her job, she can engage in the questionable activity.
It may turn out that, while work is out of the question, shark-wrestling is perfectly acceptable.
New I-9 Form Released – Valid for Immediate Use
Posted in GeneralThis post was authored by Alka Bahal, Partner in Fox Rothschild’s Roseland, NJ office. It originally appeared on Fox Rothschild’s Immigration View blog.
On March 8, 2013, U.S. Citizenship and Immigration Services (USCIS) published a revised Employment Eligibility Verification Form I-9 for immediate use. The Department of Homeland Security (“DHS”) published a Notice in the Federal Register informing employers of the new Form I-9. This form replaces all other forms and should be used from today forward for all new hires and reverifications. The previous editions of the Form (with an OMB control number expiration date of August 31, 2012) are valid for 60 days. Thereafter, only the new edition of the form is acceptable.
Improvements to Form I-9 include new data fields, a revised format that expands the form to two pages, and clearer instructions to both employees and employers.
All U.S. employers are required to complete a Form I-9 for every employee hired in order to verify that the individual is authorized for employment in the United States under the Immigration Reform and Control Act of 1986 (IRCA). Beginning May 7, 2013, employers must use the new version of the Form for all new hires and for re-verifying current employees with expiring employment authorization documentation. [Employers should not complete new Forms for existing employees who do not require re-verification.] A best practice would be for employers to begin using the new edition of the form immediately.
The new Form I-9 and List of Acceptable Documents is available on USCIS’ website in English and in Spanish. (Note, however, that the Spanish version of the Form may only be executed by employer’s in Puerto Rico; Employers in the 50 states, Washington, D.C., and other U.S. territories may use the Spanish version of the Form as a translation guide, only, but must complete the English version of the Form.)
The NFL (reportedly) demonstrates how NOT to conduct an employment interview
Posted in Hiring
Thanks NFL: we always appreciate an easy opportunity to help employers with examples of basic employment law-101 “no-no’s.” When interviewing a male candidate for employment, is it ok to ask him if he has a girlfriend; is married; likes girls? Apparently some National Football League team representatives think it is, as former University of Colorado tight end Nick Casa has reported he was asked these questions during a recent scouting combine. But for all of you who know it is a good idea to operate your business believing no employer is above the law, the answer is obvious — it is NOT ok to ask these questions.
In fact, these are the typical interview questions that land employers in hot water as a practical matter (as all of the press surrounding this incident makes clear); and in employment discrimination lawsuits as a legal matter. And with questions like these, we employment attorneys would be compelled to advise the client-employer, especially in New Jersey where sexual orientation is a protected category, that avoiding liability from such a lawsuit may likely be an uphill battle.
To be clear, trying to find out about an employment candidate’s sexual preferences in an employment interview is NEVER a good idea.
Unemployment Overpayment Crackdown!
Posted in General
Three new bills were recently introduced in the Assembly that seek to prevent and/or crackdown on the overpayment of unemployment benefits. The first bill aims to prevent overpayments by requiring more frequent wage reporting by employers. After an audit was conducted by the Unemployment Insurance Services division of the Department of Labor and Workforce Development, it was determined that the lengthy delays in wage reporting results in payments being made to individuals who are no longer unemployed. By increasing the frequency with which employers report wages, the Department of Labor will be better informed about when an individual who collects benefits obtains a new job. Currently, employers are required to report wages within 30 days of the end of each quarter. Under the proposed bill, the reporting requirement will be modified to be within 10 days of the end of each month.
The next proposed bill would require the Department of Treasury to recoup overpayments. Under this proposed legislation, the Department of Labor would notify the Treasury when an individual has failed to return an overpayment and the Treasury would then pursue the individual for the amount owed. If the Treasury is unable to collect, the bill would give them power for garnish their wages.
Finally, a third proposed bill would allow the Department of Labor to better keep track of individuals who are deceased or become incarcerated while collecting unemployment. This bill would require the state registrar and the Department of Corrections to provide information about newly deceased or incarcerated individuals so that they can be cross-checked against those collecting unemployment.
Check back here for any futher developments!
COMMON HR MISTAKES TO AVOID
Posted in GeneralAs our New Jersey Human Resources Blog continues to attract more followers, we also continue to receive requests from guest bloggers … which we certainly welcome!
This week we received a request from Denielle Fisher to publish her post addressing common HR mistakes. Certainly a worthwhile read for anyone in the HR field.
Thank you Denielle for the post!
The Biggest Mistakes of Your HR Career
No one in Human Resources is immune from making mistakes. However, having the right training will help one avoid the pitfalls. A Masters in HR will go a long way to ensuring a trouble free career in the Human Resources industry.
Most Human Resources matters involve the possibility of making mistakes, some silly and avoidable with the proper training. So what are the biggest mistakes a Human Resources manager can make during his or her career?
Lack of Communication
A common problem is the lack of communication from senior management and the Human Resources department. This can cause many problems in particular with disciplinary matters. It is important for HR managers to meet with senior management on a regular basis to discuss overall policy regarding employee matters.
Without the proper communication the Human Resources department can develop a lack of understanding of manpower plans and projections. This could lead to over staffing and therefore unnecessary issuing of redundancies, or on the other hand under staffing which can cause the loss of orders and confidence of clients in the company.
Communication is also key for understanding what the managers are looking for in potential employees. If the HR department doesn’t know what to look for, it leads to a lot of wasted time due to inadequate sifting and sorting of resumes, and interviewing of unqualified candidates.
Insufficient Education
A huge problem with some HR departments is the staff lack formal education regarding human resource matters. Some have members of their staff who have only read a couple of books on HR matters. Ideally, all human resources managers should have a Masters in HR, or at the very least some formal training in the Human Resources field. This industry requires detailed knowledge of employment practices and current employment law, knowledge of payroll systems, disciplinary practices and company policy. All of this can be very difficult to learn on your own.
Failing to Correct HR Misconceptions with Staff
The HR department should not be seen as always on the company’s side. Instead it should seen a neutral department, a go between for management and staff. A good Human Resources department should put time and energy in adopting a good working relationship between the two.
Payroll Mistakes
Payroll mistakes are very common especially regarding overtime payments and mistakes like misidentifying and muddling names and initials of staff members. Mistakes of this type can take hours of valuable time to correct and alienate staff. It’s always best to be extra cautious when handling payroll.
Lack of Focus
A badly focused HR department isn’t going to be beneficial for anyone. Human Resources should be focused on the bigger picture and constantly evaluating working practices. This should include turnover, overtime, benefits and overall performance. A dynamic Human Resources department is a department on top of an ever changing environment, able to cope with changes in employment law and company policy.
Inconsistency
Failing to follow strict procedures regarding disciplinary verbal and written warning to staff can cause major problems and disgruntled employees. Letting some staff get away with things other members of staff have been reprimanded for could lead to a successful claim by the employee against the company if the matter goes before a tribunal for unfair dismissal.
Breaching Confidentiality
Divulging employee information including payroll are breaches of the data protection act. This does much to undermine the Human Resources department and can leave the company open to unwanted litigation. All human resources staff should be made aware and be compliant of the company and national confidentiality policies.
A career in Human Resources is an excellent and challenging one. To be successful as a HR manager it is advisable to have a Masters in HR to both be properly educated in human resources issues and increase your chances of advancement.
By: Denielle Fisher
NJ MINIMUM WAGE INCREASE
Posted in General
On January 28, 2013, Governor Chris Christie conditionally vetoed a Bill that would have increased the New Jersey Minimum Wage from $7.25 per hour to $8.50 per hour, with additional annual increases that would have been tied to the Consumer Price Index.
Instead of the increases as proposed in the Bill, the Governor’s conditional veto provides for a $1.00 per hour increase that will be phased in over time so as not to create an undue burden for employers.
If approved by the Legislature, the increase schedule will be:
March 1, 2013 – $ .25 increase
March 1, 2014 – $ .50 increase
March 1, 2015 – $ .25 increase
The Governor’s conditional veto demonstrates a balanced approach that addresses the concerns of low income wage earners while also taking into consideration the economic realities of small businesses in the State.