To read the full article, click here.

Kathryn Pereda, a former employee at Brookdale’s senior living facility in Pompano Beach, sued the company claiming interference and retaliation under the FMLA.  Pereda began working for the facility on October 5, 2008.  In June 2009, Pereda notified her employer that she was pregnant and would request FMLA leave after the birth of her child anticipated on or about November 30, 2009.  Thus, at the time Pereda put in her request to take FMLA leave, she had not yet been employed for 12 months, an FMLA eligibility requirement. In September 2009, just shy of her 1-year anniversary of employment with the company, Pereda’s employment was terminated.

The district court granted the employer’s motion to dismiss finding: (1) that there could be no interference with FMLA rights because Pereda was not entitled to FMLA leave at the time she requested it; and (2) because Pereda was not eligible for FMLA leave she could not have engaged in protected activity, and her employer could not have retaliated against her.  The 11^th Circuit reversed on appeal.

Concerned that the district court’s ruling would “create a loophole” allowing an employer total freedom to terminate an employee before ever becoming eligible, the 11^th Circuit held that because the FMLA requires notice in advance of future leave, employees are protected from interference even prior to the occurrence of the triggering event, such as the birth of a child.  Based on its finding that the FMLA protects a pre-eligibility request for post-eligibility leave to care for a newborn child, the 11^th Circuit found that Pereda could also state a claim for retaliation because that “pre-eligibility request for post-eligibility leave is protected activity.”  Thus, pursuant to the 11^th Circuit’s ruling an employee who announces on the first day of work an anticipated need for FMLA leave 364 days later may allege a valid cause of action under the FMLA.  The determination as to whether Pereda’s employer actually engaged in interference and/or retaliation in violation of the FMLA will be decided by the district court on remand.

Is the 11^th Circuit’s rationale the start of a trend that will influence other jurisdictions to reach the same determination?  This remains to be seen.  In the interim, employers should be sensitive to the possibility that employees who announce a need for leave under the FMLA in the future prior to becoming eligible may avail themselves of the protections afforded by the FMLA while keeping in mind the well-settled principle that regardless of their FMLA status, employees may be terminated for legitimate reasons.

Myron Cowher, a former truck driver for Carson & Roberts Site Construction & Engineering Inc., sued the company and three supervisors after he allegedly was the target of anti-Semitic remarks for more than a year, upon the mistaken belief that he was Jewish. The comments included remarks that, “only a Jew would argue over his hours” and “if you were a German, we would burn you in the oven.”

The appeals court considered only whether he has standing to bring the claim, being that he is not Jewish. The suit had already been dismissed by the trial court on that same basis. The Appellate Division reversed the dismissal, holding that if Cowher can prove the discrimination “would not have occurred but for the perception that he was Jewish,” his claim can proceed.

The “proper question” in this case, the court said, is what effect the supervisors’ allegedly derogatory comments would have on “a reasonable Jew,” rather than on a person of Cowher’s actual background. This decision is significant because it expands the scope of who can bring a discrimination claim under the New Jersey Law Against Discrimination, by allowing a person to pursue a claim for discrimination based upon a protected characteristic not actually possessed by the person bringing the claim.
This decision shows just how broadly courts in New Jersey are willing to interpret the state anti-discrimination laws. The burden on employers to regulate conduct among co-workers is now higher than ever before.

The NLRA generally applies only to private sector employers. Federal and State government employers, labor organizations (except when acting as employers), and other entities over which the NLRB has been found not to have jurisdiction are not considered “employers” for purposes of the NLRA, and accordingly are excepted from the posting requirement.

Covered private sector employers must post the notice by April 30, 2012. Posters must be at least 11 inches by 17 inches in size, and placed where they can be readily accessed by employees. For employers who communicate with employees through an intranet or internet site, they must also post the notice electronically in a prominent place. This can be achieved by downloading a copy of the poster onto the employer website, or by providing a link to the Board’s web site, where the poster can be found. If the employer chooses to provide a link to the Board’s website, the link must read “Employee Rights under The National Labor Relations Act.”

In addition, where 20 percent or more of an employer’s workforce speaks a language other than English, the notice must be posted in the other language as well. Further, where there are two or more groups of employees who speak different languages and similarly comprise at least 20 percent of the workforce, the employer has the option to either post the notice in each language, or post the notice in the language spoken by the largest group of employees and provide written copies of the appropriate notice to employees in the other language groups.

According to the final rule, failure to post this notice will result in an order directing the employer to cease and desist from unlawful conduct and post the required notice. Thus far, one U.S. district court has upheld the posting requirement itself, but found invalid as a matter of law provisions of the final rule stating that failure to comply may be deemed an unfair labor practice, and result in a tolling of the statute of limitations for filing of an unfair labor practice charge.

Additional challenges to the final rule are pending. In the meantime, employers should plan on posting the required notice in the workplace by April 30. Posters can be obtained at https://www.nlrb.gov/poster.

*The text of the NLRB’s final rule is set forth in Chapter 1, Part 104 of Volume 29 of the Code of Federal Regulations (CFR).

If anyone has been on various social media sites, such as Facebook, LinkedIn, My Space, You Tube and Twitter, you would know that there is a lot of information that one may learn about another.  Whether it is one’s taste in music or food, where one likes to vacation, to the sports one likes to play.  You may see some very interesting photos.   You can learn about one’s family, one’s religious, cultural or political beliefs, as well as one’s age, sexual preference and/or racial makeup.  You could learn that the applicant may suffer from some disability, based on the information or photos contained therein.  You also may learn the identity of the friends, organizations or other affiliations and connections one may have.

Does an employer have a right to all of this information?  Will some or all of this information assist an employer in determining whether the applicant will be a productive member of the workforce and a good hire, or will the disclosure of this information cause one to judge, leading to potential discrimination and other legal claims should the applicant not get hired, based on something that the employer read or saw online?

We all know that an employer has the right to set the terms and conditions of employment, and if an applicant does not like any one of those terms or conditions, the applicant can withdraw his/her candidacy and apply elsewhere.  We also know that a job is a privilege, not an entitlement.  But does applying for a job, mean that one agrees to waive all rights to privacy?

And if employers are allowed to dive into the private social media lives of applicants, can administrators do the same for students applying for college or graduate school admission?  Shouldn’t a school have a right to know what kind of student it may be accepting, other than what appears on a transcript or an SAT score?  What about clubs and organizations–can a swim club or book club for that matter, decide who will or will not be a member, based on what was on an applicant’s social media site?

Undoubtedly, this issue will continue to get more and more coverage as the the dispute rages on.  There are plenty of legislators across the country tackling the issue as we speak.  You have certainly not heard the end of this controversy.

Please reply to this blog with your comment, thought or suggestion on the issue–from both the employer, and the applicant’s point of view.

Keep your company and your employees out of hot water and your workforce engaged. Join a prestigious panel of professionals from employment law, employee benefits and risk management as they share:

• The six key employment challenges of the New Year, including recent case law rulings that will impact employers and their employees, both current and former.
• How to proactively plan for, address and resolve these challenges and be in compliance with state and/or federal law.
• Best practices for financially protecting your company from an employment lawsuit.
• Strategies and trends for engaging your employees, boosting morale and creating a cohesive, harmonious work environment in 2012.

When: Tuesday, March 13, 2012; 8:30 a.m. – 9:00 a.m. registration, breakfast and networking; 9:00 a.m. – 11:30 a.m. seminar

Where:  Hilton Woodbridge; 120 Wood Avenue South Iselin, NJ 08830-2709

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The event and breakfast are complimentary.

Social media use permeates the workplace now more than ever. Regulating employees’ active presence on social media platforms such as Facebook, Twitter, LinkedIn, and even You Tube is a hot topic for debate due to the many questions and few easy answers. Recently, the National Labor Relations Board (NLRB) thrust the use of social media into the public spotlight. On August 18, 2011, the NLRB Acting General Counsel Lafe E. Solomon issued a memorandum concerning recent social media cases purportedly to provide guidance to employers when addressing and responding to social media activity by employees. Office of the General Counsel, Nat’l Labor Relations Bd., Mem. OM 11-74, Report of the Acting General Counsel Concerning Social Media Cases (Aug. 18, 2011), available at https://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases (last visited Dec. 2, 2011). To keep pace, employers must revisit their social media policies to attempt to walk the fine line between controlling inappropriate employee conduct and unlawfully restricting employees’ rights.

To read the full article, click here.

Download New Jersey Department of Labor’s Employee Poster Packet

If an employer has an internet or intranet site for the exclusive use by its employees, and to which all employees have access, publication of the notice on that site will satisfy the posting requirement. In addition to the posting requirement, employers must distribute a written copy of the notice to all employees by December 7, 2011. Effective immediately, employers must provide a written copy of the notice at the time of any new employee’s hiring. Employers may choose to circulate the notice by e-mail to employees to satisfy the distribution requirement. Importantly, this notice does not eliminate any other posting requirements already in place under state and federal law.
For more information regarding the new workplace poster or for any of your labor and employment questions, please feel free to contact Curtis G. Fox, Esq..

The amended New Jersey regulation expressly adopts the federal provisions of 29 CFR Part 541.  However, the FLSA exemptions listed in Part 541, known as the “white collar” exemptions, include only the administrative, executive, professional, and outside sales exemptions.  Conspicuously absent from Section 541 is the FLSA’s version of the commissioned salesperson exemption, which is set forth separately, in Section 7(i) of the Act.

New Jersey’s regulations previously contained a commissioned salesperson exemption which allowed employers to exempt from overtime any “employee whose primary duty consists of sales activity and who receives at least 50 percent of his or her total compensation from commissions and a total compensation of not less than $400.00 per week.”   This exemption has been relied on by countless employers in classifying qualifying sales persons as exempt from overtime.  However, because the newly amended regulations do not adopt Section 7(i) of the FLSA, New Jersey law as it currently stands does not recognize any commissioned salesperson exemption from minimum and overtime requirements.

The result: New Jersey employers who have properly classified employees as exempt under the commissioned salesperson exemption in the past must now reconsider these employees’ exempt status.  While the omission of Section 7(i) from the amended regulations appears to have been a mistake, New Jersey employers who continue to rely on the commissioned salesperson exemption run the risk of violating New Jersey’s current minimum wage and overtime provisions. For more detailed information concerning these changes, please contact Sarah Somerset at ssomerset@ghclaw.com.