Many state legislatures spent 2017 tinkering with post-employment covenants. Given the growing trend to legislate locally and the employee mobility issues that seem to nag every employer, we thought the New Year would be a perfect time to review and revisit your post-employment covenants. So for our multi-jurisdictional employers (which seems to be everyone these days), how do your post-employment covenants legally measure up?
This past year, a growing number of states and municipalities banished the Ghost of Christmas Past from haunting job applicants. As a result, employers in those jurisdictions must resolve now to bid auld lang syne to asking applicants about their salary and criminal histories. Employers should take a fresh look at their job applications, and hiring practices, policies and procedures and update them now to remain in compliance in the New Year.
Trick or Treat! This month’s Bubbler is a cauldron full of hot new developments in employment law … the NYC Salary History law is now in effect … California followed suit and its salary history law will take effect on January 1, 2018, just after Delaware and just before Massachusetts … Employers in New York are preparing to implement the new Paid Family Leave law, joining California, New Jersey and Rhode Island as the fourth state to provide this paid leave through employee-paid payroll taxes … The Supreme Court heard oral arguments in the class action waiver case … the NYC Council passed a bill to expand the Earned Sick Time Act … and the Third Circuit cited to a Harry Potter novel in an FLSA decision.
Last summer the Second Circuit issued an important decision that identified the proper test for determining whether an employer properly classified an individual as an unpaid intern. The decision was a victory for employers because the nature of the test required courts to utilize a highly-individualized analysis of each intern’s experience, and therefore, it did not necessarily lend itself to class action treatment. On rehearing, the Second Circuit has now amended this decision to clarify that the test is highly context-specific rather than dependent on the individualized experiences of each intern.
In a case reminiscent of the Curb Your Enthusiasm episode where Cheryl leaves Larry, forcing their friends to choose post-split allegiances (to Larry’s dismay, Ted Danson, the Funkhousers (Super Dave Osborne and Blossom) and even restauranteur Primo, all chose Cheryl), an employer, upon hearing of co-worker spouses’ impending divorce, felt compelled to choose sides and terminated the husband’s employment while retaining the wife.
That case, Smith v. Millville Rescue Squad, in which the plaintiff husband alleges that he was a victim of unlawful marital status-based discrimination under New Jersey’s Law Against Discrimination (LAD), is currently before the New Jersey Supreme Court, which heard oral argument last week. The facts of the case are fascinating and worth a read, but let’s focus on the salient legal issue: how to define “marital status” under the LAD.
Is passing gas now protected by our anti-discrimination laws? Over the past several years, we have written extensively (here, here, here and here) about the possibility of obesity discrimination lawsuits becoming the next wave of disability discrimination litigation, and now we have a new test case in New Jersey, and this time with a unique twist or two: a terminated employee claiming that his “extreme gas,” symptomatic of surgery related to his “disability” of obesity, led to his alleged unlawful termination, and the employee’s wife (who also happens to be his co-worker) claiming in a federal lawsuit that she was constructively discharged because of her association with her obese husband. Continue Reading Something is Rotten at the Pork Roll Company … and it’s not the Pork Rolls: Flatulent Employee (and his Wife) Bring Claims for Disability Discrimination
Earlier this month, the New Jersey Appellate Division ruled that employee arbitration agreements, to be enforceable, must contain a “clear and unmistakable” waiver of an employee’s right to a trial in court. In Milloul v. Knight Capital Group, the court, finding no distinction between an employee arbitration agreement and a consumer arbitration agreement, extended an earlier 2014 New Jersey Supreme Court decision requiring express right-to-sue waivers in consumer arbitration agreements.
In Aguas v. State of New Jersey, the New Jersey Supreme Court recently adopted an affirmative defense—available under federal law since 1998—allowing employers to use their anti-harassment policies to limit vicarious liability under the New Jersey’s Law Against Discrimination (LAD) to the employer for a supervisor’s harassment. At the same time, however, the Court adopted the more expansive definition of “supervisor” used by the EEOC as opposed to the narrower definition adopted by the U.S. Supreme Court in 2013.
Recently, in Hargrove v. Sleepy’s, LLC, the New Jersey Court issued a unanimous decision raising the bar for New Jersey employers seeking to classify individuals as independent contractors under New Jersey’s Wage Payment Law (governing time and mode of wage payments) and New Jersey’s Wage and Hour Law (governing minimum wage and overtime). The court adopted the so-called “ABC” test; a test derived from New Jersey’s Unemployment Compensation Act and arguably the most stringent test for employers to uphold independent contractor classifications.
So it’s going to snow a lot today and tomorrow. A lot. A potential blizzard. Some say this could be one of the biggest snowstorms ever to hit the East Coast. More than a foot of snow is expected in Manhattan, up to two feet out on Long Island, and maybe more than two feet in and around Boston. This means closed schools, downed power lines, impassable streets, and even travel bans, which also means that employers will have to decide whether to close their doors early this evening and whether to open up their doors tomorrow (and/or Wednesday). As we’ve written about before, in making those decisions, employers must account for their obligations to comply with federal, state, and local wage and hour laws.