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.

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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.

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What does this mean for employers?  Employers can now be assured that they are not powerless to take action against employees for postings on Facebook or other social media pages.    However, employers should take care to have a clearly defined social media policy before taking such action.

The U.S. Department of Labor (”DOL”) recently launched its first smart phone app, which acts as an electronic time-sheet, allowing employees to track their work hours and pay. Employees can input an hourly rate and hours worked, and the app will calculate the wages due, including overtime. Employees can even send their records to the DOL directly from their phones.

According to the DOL, the records “could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.” This means the records may be considered evidence of hours worked where an employer has failed to maintain records as required by law. Significantly, the app does not account for lawful rounding practices, and permits the start and end times to be easily manipulated by the user.

Employers can protect against misuse of this app by instituting record-keeping policies, and requiring hourly employees to clock in and out, and verify their hours each week.

New Jersey joins 15 other states and the District of Columbia in the legalization of marijuana for medicinal use, although it appears that New Jersey’s law may be the strictest in the nation, namely because it controls how much of the active ingredient THC may be in the drug.  After going through so much scrutiny in NJ, particularly with Gov. Christie, a former federal prosecutor, it is believed that many other states that currently do not allow the use of medical marijuana, may now reconsider.

How long it will take to put the law into effect needs to be seen, but for thousands of people in NJ suffering with painful ailments, it appears that relief  is finally on the way.

Stay tuned for updates on this important law, and how it may impact the employment arena.

In Alexander v. Seton Hall University, et al., three female tenured professors at Seton Hall University (SHU), claimed they were paid less than younger and/or male employees, in violation of the LAD. The plaintiffs alleged they did not discover the basis for an actionable unequal wage LAD claim until 2005, when they obtained a copy of an internal 2004–2005 SHU annual report that detailed the salaries of its full-time faculty members by college, gender, rank and salary. Their complaint sought damages back to their dates of initial hire 29, 25 and 20 years ago, respectively.

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While the court below concluded that UMDNJ was entitled to judgment because it had an “anti-harassment policy”, and it promptly addressed plaintiff’s complaint, the Appellate Division disagreed finding genuine factual disputes as to whether UMDNJ’s policy meets the standards necessary to defeat plaintiff’s claims.  With respect to UMDNJ’s policy, the Appellate Division found factual disputes existed as to: (1) publication – specifically whether the policy was made known to the plaintiff; (2) training – the plaintiff received none and the alleged harasser who was regularly trained was not familiar with the content of the policy; and, (3) monitoring and sensing mechanisms – not only was there no evidence of effective monitoring and sensing mechanisms, but there was evidence suggesting that any mechanisms were ineffective.  Accordingly, it is not enough to merely have a policy in place; rather, the employer must be able to prove that it has promulgated and supported an “active anti-harassment policy” that extends beyond the distribution of a policy set forth in writing.

This decision emphasizes that the mere existence of anti-harassment policies will not automatically shield employers from liability.  It serves as a reminder to New Jersey employers that additional steps need be taken to ensure that company policies are effective and up to date, including anti-harassment training and effective monitoring and sensing mechanisms.  While a company’s overall approach to its employment-related policies (including but not limited to an effective written policy), can in some instances provide it a safe haven from discrimination claims, a minimalist approach focusing only on the mere existence of a written policy is not enough in light of the New Jersey Appellate Division’s recent ruling in Allen v. Adecco, Inc.