June 11, 2013 | Comments Off
Posted by Ari Burd
For most employers, the most important part of the Patient Protection and Affordable Care Act (commonly referred to as the “ACA” or “Obamacare”) will be the section known as the employer shared responsibility provision. Many media outlets continue to incorrectly suggest that this provision requires employers to provide health insurance to all of their employees. This is not actually the case. Instead, this provision subjects employers to taxes or penalties if they fail to offer “adequate” and “affordable” health insurance to their employees. Another fact commonly misunderstood is that for now, the only employers who need to be concerned about this issue are those who employ 50 or more “full time” employees (the ACA uses a very specific formula to determine who is considered full time) or those who employ under 25 employees and are looking to take advantage of the small business tax credit.
The employer shared responsibility provision goes into effect on Jan 1, 2014. In most cases, in order to determine who is a full time employee, the employer reviews each employee’s full time status by “looking back” at a past employment period of between three (3) and twelve (12) months. As a result, it is critically important that employers start thinking about their obligations under the ACA right now so they can be prepared for January 1, 2014.
Determining who is considered a full time employee under the ACA can be complex. Under the ACA, a full time employee is someone who works 30 or more hours per week, on average. Also taken into consideration are full time equivalent employees (“FTE”). The number FTE employees are determined by adding up the total number of hours worked in a given month by part time employees and dividing than number by 120. So for example, 10 part time employees working 60 hours per month would be counted as 5 FTE employees (10×60 = 600; 600/120=5). Special rules also apply for seasonal employees, temporary employees, etc.
For those employers who have 50 or more full time employees under the ACA, the employer shared responsibility provision leaves the employer with several options:
Option 1- Provide health care coverage that is both “adequate” and “affordable” under the ACA. Determining if coverage meets these requirements requires analysis of the costs of the plan to full time employees and the number of full time employees eligible under the plan. The employer must also determine if providing coverage is more costly than the fines it would be subject to if it chose not to provide coverage.
Option 2 – Do nothing and provide no coverage to the employees, potentially subjecting the employer to a $2000 fine per employee. Rather than simply rejecting this option of out of hand, the employer needs to determine the potential fine it faces and whether or not certain exemptions are applicable that could greatly reduce, if not eliminate the fine entirely.
Option 3 – Provide coverage that is not considered “affordable” under the ACA, subjecting the employer to a $3000 fine for each employee who chooses not to partake in the employer offered health plan and who instead purchases coverage through an insurance exchange and receives a tax credit or subsidy. Before taking this route, an employer must carefully consider whether it believes its employees will seek coverage through an exchange and whether the savings it will gain from not paying its portion of the employee’s health care coverage will offset any potential penalty.
This is merely a summary review of the ACA. Numerous provisions and exceptions contained in the ACA may affect your decision. For consultation and advice regarding the ACA provisions that will best serve your employment situation, please contact Ari G. Burd, Esq.
May 28, 2013 | Comments Off
Posted by Sabrina Sandhu
Last week the full New Jersey General Assembly granted final legislative approval for bill A-2919/S-2177, known as the “New Jersey Security and Financial Empowerment Act” or “NJ SAFE Act”. If signed into law by the Governor, the Act would allow eligible employees who are victims or whose family members are victims of domestic abuse or sexual assault to take up to 20 days of job protected leave per year to handle issues related to the abuse or assault. Specifically, the Act provides that leave may be taken to seek medical attention for injuries, obtain services from a victim services organization, obtain counseling, participate in safety planning, relocate or engage in other activities to ensure the safety of the employee or employee’s family member, seek legal assistance, and participate in legal proceedings.
Eligible employees under the Act would be required to take their leave within 1 year of the incident. Eligible employees are defined as those employees who have been employed for at least 12 months, and for at least 1,000 hours during the immediately preceding 12 month period. Prior to approving the leave of an eligible employee, an employer would be permitted to request documentation of the basis for the leave. Additionally, employers may request that eligible employees first exhaust any accrued paid leave provided by the employer, or leave afforded by the Family Leave Act and federal Family and Medical Leave Act. Employers with less than 25 employees are exempt from this proposed legislation.
Importantly, the Act provides for a civil cause of action against employers in alleged violation of its provisions. Should this legislation become law, the effective date will be the first day of the third month following enactment, and employers will be required to display a conspicuous notice of employee rights and obligations under the Act. Please check back periodically for updates about this legislation.
April 3, 2013 | Comments Off
Posted by Sabrina Sandhu
On March 21, the New Jersey General Assembly granted final legislative approval for bill A2878/S1915, commonly referred to as the “Facebook Bill”. If it becomes law, the Facebook Bill will prohibit employers from asking prospective or current employees to disclose their user name, password, or other means for accessing social networking websites.
Prior to the General Assembly’s final approval of this bill, significant floor amendments were adopted that will prove helpful to employers if it becomes law. These amendments ensure that if enacted, the Facebook Bill would allow employers to investigate social networking sites when necessary to comply with state and federal anti-discrimination laws. The amendments also safeguard employers that need to implement policies regarding the use of company issued electronic devices. Additionally, the term “personal account” for purposes of this legislation was clarified and defined to specifically exclude from its meaning those accounts that are maintained, used, or accessed for business purposes or business related communications.
Nevertheless, these amendments do not protect the employer from exposure to lawsuits by prospective, current, and former employees alleging violations of the Facebook Bill’s provisions. Given that a companion bill prohibiting higher education institutions from demanding social media information from job applicants was recently passed into law by Governor Christie in December 2012, employers should actively monitor the Facebook Bill’s status and prepare for potential changes to their social media policies. Should this legislation become law, the effective date will be the first day of the fourth month following enactment. Please check back periodically for updates about this legislation.
March 11, 2013 | Comments Off
Posted by Ari Burd
Daniyal Enterprises LLC, the owner of 72 gas stations in New Jersey, recently entered into a settlement with the United States Department of Labor (”DOL”) wherein it agreed to pay almost 3.1 million dollars in overtime back wages and penalties. Attendants at gas stations owned by Daniyal (Roadway Fuel, Ali Fuel, Green Fuel) worked up to 84 hours per week, but did not receive overtime pay. In an apparent effort to hide the amount of hours actually worked by its employees, Daniyal failed to maintain accurate records of the hours worked by its employees and even paid some wages off the books and in cash.
As a result of the settlement, not only must Daniyal pay over three million dollars for overtime violations, but it must also install biometric time clocks, provide a notice to workers regarding the terms of the compliance agreement, provide Fair Labor Standards Act training for all employees in English and other languages, an anti-kickback protection clause to ensure that all workers are paid any back wages due and provide a toll-free telephone number for workers to report future violations to a Federal monitor.
The DOL conducted more than 100 investigations involving gas stations in 2012 and is clearly making an effort to protect employees in the industry. Gas station owners should take note and expect that the DOL will continue to aggressively police overtime practices in the industry.
March 4, 2013 | Comments Off
Posted by Ari Burd
The U.S. Department of Labor has recently issued a new Family and Medical Leave Act (”FMLA”) poster which must be displayed by all employers covered under the FMLA by March 8, 2013. All employers with 50 or more employees are subject to this requirement. As was the case with previous postings, the poster must be displayed in “a conspicuous place where employees and applicants for employment can see it.” As long as your organization is covered by the law, a poster must be displayed at all locations, even if there are no eligible employees.
The revisions contained in the poster relate to rights involving military family leave, military caregiver leave and also include changes to FMLA eligibility for airline flight crews and flight attendants. A free copy of the poster is available online here:
One of the most noticeable changes referenced in the poster is the expansion of the number of families of veterans covered. Specifically, the definition of a covered service member now includes veterans discharged under conditions other than dishonorable within the past five years. As a result, military caregiver leave can be taken up to five years after the service member leaves the military. The FMLA provides these caregivers with the same job-protected FMLA leave rights that are currently available to families of military service members. The Department of Labor has prepared a side-by-side comparison of the changes for easy reference:
For more information regarding the new workplace poster or for any of your labor and employment questions, please feel free to contact Ari G. Burd, Esq. or Jay S. Becker, Esq.
February 26, 2013 | Comments Off
Posted by Frank R. Ciesla
Below is a link to the Department of Labor’s website in regard to its proposed regulations expanding whistleblower protection to individuals who complain about the actions taken under the Affordable Care Act.
The difficulty for the employers in this situation is the fact that they are looking at an Act that covers almost 2,000 pages and has thousands of pages of implementing regulations. There is no question that this is and will continue to be a complex area of the law, particularly as the various government agencies continue to issue implementing regulations. Employers, insurers, and health care providers all have to pay attention to both the statute and its implementing regulations so as not to cause an inadvertent violation that can form the basis of a whistleblower suit. Read more
February 19, 2013 | Comments Off
Posted by Ryan Carlson
Studies often show that attractive workers tend to get hired sooner, get promotions more quickly, and are paid more handsomely than their less-attractive co-workers. But can good looks get you fired without any job protection? According to a unanimous decision by the Iowa Supreme Court, they can.
In Nelson v. Knight, the Iowa Supreme Court considered whether a female employee could be lawfully terminated because her boss believed that she was an irresistible attraction and keeping her employed was a threat to his marriage. Nelson, the terminated employee, had worked for Knight’s dental practice for ten years along with Knight’s wife. Ultimately, Knight’s wife became jealous and demanded that Knight terminate Nelson. Knight too believed that if Nelson remained employed he would likely have (or attempt to have) an affair with her. Consequently, Knight notified Nelson that she was terminated because she was too irresistible and a threat to his marriage. Nelson then brought a cause of action against Knight alleging that she was terminated because of her gender in violation of the Iowa Civil Rights Act. Nelson did not allege at any time that Knight sexually harassed her.
The Iowa Supreme Court upheld Nelson’s termination. In doing so, the Court drew an important distinction between an isolated employment decision based on personal relationship issues (which is lawful in most cases) and an employment decision based strictly on one’s gender (which is unlawful in most cases). The court reasoned that this case fell under the first scenario in which Knight terminated Nelson because of personal relationship issues and not because of her gender. Therefore, the court found that Nelson’s termination was lawful under the Iowa Civil Rights Act.
Although this may seem like a novel decision, it should not be a surprise. In New Jersey, it is well-established that physical attractiveness is not a protected class under the New Jersey Law Against Discrimination. It is also well established that an employee can be terminated because of relationship issues stemming from a consensual workplace relationship with his or her employer absent sexual harassment. In applying these principles, it is fair to conclude that a similar decision might have been rendered by a court in New Jersey. On the other hand, Nelson was a threat to Knight’s marriage only because she is a woman; thus, it is not difficult to imagine that a court in New Jersey might have gone the other way.
January 16, 2013 | Comments Off
Posted by Ari Burd
The facts may change but the story remains the same. Employee posts derogatory statements on Facebook. Employee gets fired.
The most recent example of this occurred in Paterson, New Jersey and involved a first grade teacher. The teacher posted the following status updates on her Facebook page:
- I’m not a teacher – I’m a warden for future criminals!
- They had a scared straight program in school – why couldn’t [I] bring [first] graders?
Viewers of these posts included one of the teacher’s colleagues, who forwarded the posts to her school principal. The teacher was immediately suspended with pay pending further investigation. As news leaked regarding her comments, the school received a least a dozen irate phone calls, a protest of 20-25 persons took place outside the school and camera crews from major news organizations descended upon the school.
Tenure charges were then brought against the teacher by the school district. The teacher argued that her statements were protected by the First Amendment. The Administrative Law Judge (”ALJ”) assigned to the case rejected this defense. He noted that her remarks were not a matter of public concern, but rather, merely an expression of dissatisfaction with her job. The ALJ found that comments, such as those made by the teacher, make it “impossible for parents to cooperate with or have faith in a teacher who insults their children and trivializes legitimate education concerns on the internet.”
The teacher pointed to her spotless employment record as well as her almost thirteen years of service and argued that termination was inappropriate for a mere “momentary lapse in judgment.” Again the ALJ disagreed. He found her comments “showed a disturbing lack of self-restraint, violated any notion of good behavior and [acted in a matter that was] inimical to her roles as a professional educator.” The ALJ’s decision appears to have been based, in large part, on the teacher’s response to the charges. The ALJ noted that he had expected the teacher to be contrite and express regret over her actions. Instead, she merely appeared “befuddled by the commotion she had created” and continued to deny that her conduct was inappropriate. Finding that her actions were grossly inappropriate and her relationship with the Paterson school community “irreparably damaged,” the ALJ concluded the teacher was unfit to continue her duties and dismissed her from her teaching position. The ALJ opinion was then upheld by the New Jersey Appellate Division for the reasons expressed in the ALJ opinion.
January 9, 2013 | Comments Off
Posted by Ari Burd
Under the Fair Labor Standards Act (”FLSA”), non-exempt employees eligible to receive overtime are entitled to receive one and a half times their regular rate of pay for each hour worked over 40 hours during any work week. On an oil rig maintained by Redland Energy Services (”Redland”), employees were receiving over 40 hours of overtime per week. By simply changing when the workweek was deemed to start and stop, Redland managed to cut this overtime pay obligation in half. Although Redland’s change to the start and end date of the workweek was challenged by the employees, the change was ultimately upheld by the Eighth Circuit Court of Appeals in the matter, Abshire, et al., v. Redland Energy Services, LLC, 695 F.3d 792 (2012).
The plaintiffs in this matter worked as operators of oil rigs maintained by Redland. They regularly worked 12 hour shifts from Tuesday to Monday seven days straight (84 hours per week), followed by a week off. Although the workweek had initially been calculated using the same Tuesday to Monday schedule regularly worked by the oil rig employees, Redland changed the workweek designation to Sunday to Saturday, the same designation used for all other employees at Redland. As a result, the oil rig employees now worked no more than 60 hours in any designated workweek. The Eight Circuit Court of Appeals upheld a challenge to Redland’s workweek change, noting that so long as the change to the workweek is “intended to be permanent, and it is implemented in accordance with the FLSA, the employer’s reasons for adopting the change are irrelevant.” Id. at 796.
While most employers will not find themselves regularly paying their employees overtime to the extent found in the Redland matter, the costs of overtime can certainly add up for any business. By being creative and reviewing and revising all workplace policies, such as how the workweek is scheduled or how the work week and pay period are defined, it is often possible for an employer to limit significant overtime exposure. If you have questions or would like to discuss your business policies, please feel free to contact us to discuss your situation.
January 2, 2013 | Comments Off
Posted by Ari Burd
In light of recent mass-shootings, questions have been raised regarding firearms in the workplace. New Jersey already has some of the strictest firearms laws in the United States. Presently it is illegal to own or possess ammunition magazines in New Jersey that hold more than 15 rounds. Concealed carry permits are issued in extremely limited situations and only when the individual can show a “justifiable need.” Unlike several other states, employers in New Jersey are free to create policies preventing employees from bringing firearms onto the employer’s place of business. This limitation can extend to areas such as parking lots, thereby preventing employees from keeping weapons in their car. For more information or for workplace policies on the subject, please contact our office.keep looking »