This Employment Law This Week® Monthly Rundown discusses the most important developments for employers in July 2019. Both the video and the extended audio podcast are now available.

This episode includes:

  • State Legislation Heats Up
  • NLRB Overturns Another Long-Standing Precedent
  • SCOTUS October Term 2018 Wraps Up
  • Tip of the Week: How inclusion and trust can increase innovation in the workplace

See below to watch the full episode – click here for story details, the video, and the extended audio podcast.

Stay tuned: Sign-up for email notifications and subscribe to the extended podcast edition on your preferred platform – Apple PodcastsGoogle Play, OvercastSoundcloudSpotifyStitcher.

Our colleagues 

Following is an excerpt:

On July 2, 2019, New Jersey joined Illinois, Nevada, New Mexico, New York City, and Oklahoma in enacting employment protections for authorized users of medical cannabis. New Jersey’s new medical cannabis law (“Law”), which became effective upon signing by Governor Phil Murphy, amends the state’s Compassionate Use Medical Cannabis Act (“CUMCA”),[1] N.J.S.A. 24:61-2, et seq. Among other measures, the Law prohibits employers from taking an adverse employment action against a current or prospective employee based on the individual’s status as a registered qualifying user of medical cannabis. Under the Law, an “adverse employment action” means “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.” In addition, the Law requires employers that maintain drug-testing policies to offer applicants and employees the right to respond, in specific ways, to a drug test that comes back positive for cannabis.

Specifically, if an employee or applicant tests positive for cannabis, the Law requires the employer to provide written notice offering the individual the right to provide a “legitimate medical explanation” for the positive test result or to request a retest of the sample. The individual has three days after receiving the notice to (i) provide the explanation, which may include authorization for the use of medical cannabis issued by a health care practitioner, proof of registration with the state’s newly created Cannabis Regulator Commission, or both, or (ii) request a confirmatory retest of the original sample at the individual’s own expense. …

Read the full post here.

In an attempt to protect hotel employees such as housekeepers and room service attendants from violent acts by hotel guests, including sexual assault and harassment, New Jersey recently passed a novel law requiring New Jersey hotels with more than 100 guest rooms to arm hotel employees assigned to work in a guest room alone with a free panic button device. Under the law, hotel employees who activate the button on the reasonable belief there is an ongoing crime, immediate threat of assault or harassment, or other emergency, can immediately leave the guest’s room and await assistance without facing an adverse employment action.

This law also requires covered hotel employers to adhere to the following protocol when a hotel employee utilizes his/her panic button:

  1. Record all accusations by hotel employees regarding an act of violence or other inappropriate conduct by a guest.
  2. Reassign hotel employees who utilize a panic button to a work area away from the guest in question.
  3. Maintain a list of all guests accused of violence/inappropriate conduct for a period of five years from the date of the incident.
  4. Alert all other hotel employees who are assigned to duties of the room in which an alleged incident occurred of the guest in question and provide them the right to service that room with a partner or opt out of servicing that room for the duration of the guest’s stay.
  5. Conduct an internal investigation to determine as much identifying information about an accused guest as reasonably possible and at the conclusion of the investigation, if the victim provides a certified statement of an incident of assault or sexual harassment or if the hotel independently confirms the victim’s description of the incident, ban the guest from the hotel for at least three years. The three-year ban also applies to guests who are convicted of a crime in connection with the incident in question.
  6. Report all incidents of alleged criminal or inappropriate conduct by a guest to law enforcement.

In addition, the law requires covered hotel employers to develop a program that educates its employees about the use of panic button devices and to advise its guests of the presence of such devices (either by including a disclosure in the hotel terms and conditions or placing signs on the interior side of guest room doors).

The law takes effect January 2020. Failure to comply with the law will result in a fine (up to $5,000 for a first violation and $10,000 for each subsequent violation).

In its new podcast series, Employment Law This Week has released an extended Monthly Rundown, discussing some of the most important developments for employers in June 2019.

This episode includes:

  • Worker Classification in the Gig Economy
  • NLRB Announces Rulemaking Agenda
  • National Backlash Builds Against Non-Compete Agreements
  • Tip of the Week: Compliance with New Jersey’s Equal Pay Act

Stay tuned: Listen to the latest episode on our website or on your preferred platform – iTunes, Google Play, Soundcloud, or Spotify – be sure to subscribe!

Our Employee Benefits and Executive Compensation practice now offers on-demand “crash courses” on diverse topics. You can access these courses on your own schedule. Keep up to date with the latest trends in benefits and compensation, or obtain an overview of an important topic addressing your programs.

In each compact, 15-minute installment, a member of our team will guide you through a topic. This on-demand series should be of interest to all employers that sponsor benefits and compensation programs.

In our newest installmentCassandra Labbees, an Associate in the Employee Benefits and Executive Compensation practice, in the New York office, presents on “Hot New Benefits.”

Benefits are a useful and necessary tool in the recruitment and retention of employees. As a result, new benefit options are continuously being developed and offered by employers. This 15-minute crash course will discuss a few of those new benefit options as well as the tax and public policy considerations that may impact which benefits employers choose to offer.

Click here to request complimentary access to the webinar recording and presentation slides.

Our colleagues 

In Diaz, the plaintiff, who asserted she is visually impaired, alleged that the defendant – a supermarket chain based in Ohio – failed to make its website accessible to individuals who were blind. As a result, plaintiff claimed that she was unable to learn about certain products on the site, as well as promotions and coupons.

Defendant sought to dismiss the lawsuit on two grounds: (i) lack of subject matter jurisdiction, because its remediation of the barriers identified in the complaint rendered plaintiff’s claims moot; and (ii) lack of personal jurisdiction, because the Ohio-based defendant does not transact business in New York State, and accordingly, New York’s long-arm statute does not subject it to the court’s review.

Read the full post here.

With warmer weather quickly approaching, many employers are beginning to schedule happy hours, parties, softball games, and other off-site events that employees (and interns) look forward to attending. However, at offsite work events, employees might forget—or might not realize in the first place—that they are still in a workplace setting. This could result in unwelcome behavior, such as sexual harassment, which could leave an employer open to liability.

Under federal law, as well as the law of many states, cities, and municipalities, sexual harassment is considered a type of prohibited gender discrimination. New York City and New York State now require employers to provide their employees with anti-sexual harassment training. States such as California, Connecticut, Delaware, and Maine have similar requirements. Further, even where not required, case law and agency guidance recommend anti-harassment training in several other states. New York does require employers to establish policies against sexual harassment.

Employers should remind their employees that they remain subject to company policies at events outside the workplace.

No matter if harassment occurs at an outside work event or during normal business hours, employers should have clear policies and provide training so that employees are aware of applicable complaint procedures, and can bring any instance of potential sexual harassment to the employer’s attention.

While the summer can be a time for workplace comradery and other off-site events, employers should remember to make sure their employees are aware of their expectations to remain professional and to never engage in discriminatory or harassing behavior.

This tip is featured as Rule #7 in Halting Harassment’s Rules of the Road. Check out the rest of the Rules, and learn more about how Epstein Becker Green’s Halting Harassment e-learning course can help your organization foster a respectful and inclusive environment—both inside and outside the workplace.

Our colleague Maxine Neuhauser at Epstein Becker Green has a post on the Technology Employment Law Blog that will be of interest to our readers in the hospitality industry: “New Jersey Issues Updated Family Leave Act and Family Leave Insurance Act Posters.”

Following is an excerpt:

On February 19, 2019, New Jersey Governor Phil Murphy signed into law A 3975 (“the Law”), which significantly expanded the state’s the Family Leave Act (“NJFLA”), Family Leave Insurance Act (“NJFLI”), and Security and Financial Empowerment Act (“SAFE Act”).  We prepared an Act Now Advisory, summarizing the extensive changes made by the Law, including, among other things, the expanding and making uniform the definition of “family member” for all three laws, and, effective June 1, 2019, extending the NJFLA to employers that have 30 or more employees. …

Read the full post here.

Hospitality remains at the forefront of demanding industries where employers must be ever vigilant in their efforts to ensure full compliance with federal, state, and local employment laws and regulations. We highlight below five new or upcoming areas on which employers should focus.

Jeffrey H. Ruzal

Hospitality Employers May Soon Face a Compliance Challenge: The New Proposed DOL Salary Threshold for “White Collar” Exemptions

Michael S. Kun

The Department of Labor (“DOL”) has proposed a new rule that would increase the salary threshold for most “white collar” exemptions under the Fair Labor Standards Act (“FLSA”) from $23,600 per year ($455 per week) to $35,308 per year ($679 per week). If adopted, as expected, the rule would go into effect on January 1, 2020.

Many hospitality employers employ “white collar” exempt employees who earn more than $23,600 but less than $35,308 per year, and they will face the important and challenging decision of whether to increase some employees’ salaries or convert them to non-exempt status. This decision will directly impact not only employees but also employers’ budgets and compensation structures. Employers should act now to plan ahead for the adoption of the new rule:

  1. Identify employees currently treated as FLSA exempt who are paid less than $35,308 per year, as those are the persons for whom this decision will need to be made.
  2. Confirm that each employee meets the “duties test” for the exemption, as that would not change under the new rule.
  3. Decide whether to increase each identified employee’s salary to the $35,308 threshold or to convert the employee to non-exempt.
  4. If converting an employee from exempt to non-exempt, determine what the employee’s new hourly rate will be.
  5. Prepare to implement changes by January 1, 2020, including coordination with the payroll department or vendor.

States Target Restaurants for Anti-Harassment Training Legislation

Anastasia A. Regne and Adriana S. Kosovych

Harassment prevention in the workplace continues to be top of mind for employers in all industries—particularly in New York and California, which now statutorily require harassment training. Restaurant employers are the current target of proposed legislation in certain states that would require the adoption of sexual harassment policies and periodic mandatory harassment training for their workforce.

In January, the New Jersey Legislature introduced a bill (A4831) that would require restaurants employing 15+ employees to provide, at hire and throughout the employment relationship, interactive sexual harassment training tailored to the restaurant industry, including practical examples and instruction on how to file a sexual harassment complaint. Illinois’ proposed (and broader) Restaurant Anti-Harassment Act similarly would require sexual harassment training for all restaurant employees covering a range of topics, within 90 days of enactment or at hire, and every two years thereafter. Both bills call for separate training for employees and management, each with its own set of requirements. Anything other than strict compliance would carry significant fines for violations, and in New Jersey, even strict compliance would not help the employer avoid sexual harassment liability.

Restaurant employers should be proactive in preparing for the enactment of this and any other legislation. Epstein Becker Green’s Halting Harassment offers compliant training programs to employers in states that currently require such training, and will also develop such programs for other jurisdictions that enact such laws, including New Jersey and Illinois.

DOL Formally Withdraws and Replaces 80/20 Guidance

Paul DeCamp

In 1988, the DOL amended an internal agency handbook to include an interpretation barring employers from taking a tip credit for activities that do not generate tips (tasks such as rolling silverware or cleaning tables, known in the restaurant industry as “side work”) if an employee spends more than 20 percent of his or her working time on those activities. In November 2018, the DOL (re)issued an opinion letter rejecting that interpretation. On February 15, 2019, the DOL followed up on the opinion letter by withdrawing the 1988 handbook interpretation and replacing it with a new standard that does not tie the availability of the tip credit to the amount of side work performed. Under the new guidance, the tip credit is available so long as the employee performs side work contemporaneously with, or within a reasonable time of, tip-generating activities. State law, of course, may vary.

Don’t Be Caught Off Guard This Summer by Your Internship Program

Ann Knuckles Mahoney

With summer right around the corner, internship season is about to kick off. Internship programs can help employers source and develop talent, but they do not come without their pitfalls. For many years, the DOL used the “six-factor test” when determining whether an employee was legally considered an unpaid intern, such that the intern would not be subject to the wage and hour requirements of the FLSA. This changed at the beginning of 2018, when the DOL adopted the “primary beneficiary test” in a move allowing increased flexibility for employers and greater opportunity for unpaid interns to gain valuable industry experience. Employers that fail to follow the requirements to ensure that an intern is properly treated as an unpaid intern, rather than an employee who is entitled to minimum wages and overtime, could face costly wage and hour litigation. Access our recent webinar on what employers need to know to create a legally compliant unpaid internship program and to learn more about practical considerations for both paid and unpaid internship programs.

Are You a Joint Employer? That May Change Under the DOL’s Proposed New Test

Adriana S. Kosovych and Jeffrey H. Ruzal

As announced in an April 1, 2019, Notice of Proposed Rulemaking, the DOL has proposed to substantially revise the standard for determining joint-employer status conferring joint and several liability upon the primary employer and any other joint employers for all wages due to employees under the FLSA. Unlike the current regulations—under which two or more entirely independent entities may be found to jointly employ an employee who performs work in a workweek that simultaneously benefits both of them if they are “not completely disassociated” with respect to that individual’s employment—the proposed new rule would determine joint-employer status by a four-part test assessing whether the potential joint employer actually exercises the power to (1) hire or fire, (2) supervise and control work schedules or conditions of employment, (3) determine the rate and method of payment, and (4) maintain employment records. While additional factors may be considered, the proposed rule explains that an employee’s “economic dependence” on the employer would not be relevant under the new standard, nor would certain business models and practices and contractual agreements be pertinent.

The DOL’s proposal coincides with similar rulemaking activity by the National Labor Relations Board (“NLRB”) in September 2018. Under the NLRB’s proposal, two employers would be considered joint employers only when the putative joint employer possesses and exercises “substantial direct and immediate control over the essential terms and conditions of employment of another employer’s employees in a manner that is not limited and routine.” The period for comments on the NLRB’s proposed rule closed on January 28, 2019, and it is anticipated that the rule will be formally adopted later this year. The comment period in the DOL’s proposed rule is set to close on June 10, 2019. Hospitality owners/operators should stay tuned for further developments on both fronts, as joint-employer status is often a point of dispute when an employee lodges claims against one or more putative employers.

Read the Take 5 on our website.

This Employment Law This Week® Monthly Rundown discusses the most important developments for employers heading into May 2019.

First up this month, the confusion is over for employers. EEO-1 pay data does not need to be submitted to the EEOC by the end of the month. In what may be the final chapter of the EEO-1 pay data reporting issue, a federal judge in Washington, D.C., ruled that the deadline would be postponed until September 30, 2019. Our colleague Robert J. O’Hara shares his insights in this month’s episode.

Watch the full episode below.