Publications — Page 44 of 47 — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

EEOC Outlines New Guidance on Religious Garb and Grooming in the Workplace

Published on: April 4, 2014 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

By: Sergio D. Simoes

On March 6, 2014, the Equal Employment Opportunity Commission (the “EEOC”) released new guidelines on how federal employment discrimination law, specifically Title VII of the Civil Rights Act of 1964, applies to religious dress and grooming practices, and what steps employers can take to meet their legal responsibilities in this area. Examples of religious dress and grooming practices include wearing religious clothing or articles, observing a religious prohibition against wearing certain garments, or adhering to shaving or hair length observances. In most instances, employers are required by federal law to make exceptions to their usual rules or preferences to allow employees to observe religious dress and grooming practices.

The EEOC has not created any additional obligations with its new guidelines. They are intended merely to clarify questions concerning the application of Title VII to religious issues in the workplace. The guidelines remind employers that unless it would result in an undue hardship, employers must consider accommodating an employee’s request to wear religious garb or engage in sincerely held religious practices at work. To that end, the guidelines state the following:

Gender Equality in The Payment of Wages in New Jersey

Published on: January 9, 2014 | by John H. Schmidt, Jr.

In September of 2012, Governor Christie signed a new law requiring every employer in New Jersey that employs 50 or more employees to post a notice that was prepared by the New Jersey Department of Labor and Workforce Development and that addresses gender equality in the payment of wages and other forms of compensation and benefits. The new law also requires every employer to whom the law applies to give a copy of that same written notice to every employee. The written notice must immediately be distributed to every employee (as the law is newly enacted) and hereafter must be distributed annually to every employee on or before December 31. Every new employee must also be given a copy of the written notice when hired, and when the employee specifically requests a copy of the written notice.

The annual distribution of the written notice can be accomplished by a paycheck insert, by a flyer distributed at an employee meeting, by email delivery, or through an internet or intranet website, if the website is for the exclusive use of the employees, can be accessed by all employees and the employer provides notice to the employees of the posting. It is important to note that the written notice to employees must be acknowledged by the employee; the acknowledgement must indicate that the employee has read the written notice and understands its terms. The employee acknowledgement can be a written document signed by each employee or an electronic acknowledgement returned to the employer within 30 days of each employee’s receipt of the written notice.

For you convenience we have attached the Written Notice that was prepared by the New Jersey Department of Labor and Workforce Development. The Written Notice is printed in both English and Spanish. If you employ more than 50 employees, the Written Notice should be posted together with the other postings required by law. If you employ more than 50 employees, the attached Written Notice should also be distributed to all employees as promptly as possible and every year into the future. As an employer subject to this new law, you must post and distribute the Written Notice prepared by the New Jersey Department of Labor and Workforce Development in both English and Spanish.

IRS Adopts a Uniform Policy: All Legal Same-Sex Marriages Recognized for Federal Tax Purposes

Published on: September 18, 2013 | by James McGlew, II

In the wake of the U.S. Supreme Court’s recent landmark decision in , the U.S. Department of the Treasury and the Internal Revenue Service (“IRS”) ruled that same-sex marriages will be recognized for federal tax purposes, even if the married couple is domiciled in a state that does not recognize same-sex marriage. For example, lawfully married same-sex couples in New York will be treated as married for federal tax purposes, even if they permanently relocated to New Jersey or Florida, states that currently do not recognize same-sex marriage.

The decision struck down Section 3 of the 1996 Defense of Marriage Act (which excluded same-sex couples from the federal definitions of “marriage” and “spouse”) as unconstitutional. Yet the Court’s decision raised the issue of whether federal benefits would extend to same-sex married couples domiciled in states that do not recognize same-sex marriage.

For federal tax purposes, the terms “spouse,” “husband and wife,” “husband,” and “wife” include an individual married to a person of the same sex if the individuals are lawfully married under state (including any foreign jurisdiction having the legal authority to sanction marriages) law, and the term “marriage” includes such a marriage between individuals of the same sex, regardless of an individual’s place of domicile. Significantly, however, these terms do not cover registered domestic partnerships, civil unions, or other similar formal relationships recognized under state law for federal tax purposes.

Withdrawal Liability Primer

Published on: September 1, 2013 | by James K. Estabrook and Elizabeth Engert Manzo

What is Withdrawal Liability?

Withdrawal liability only accrues when the employer has contributed to a defined benefit (DB) plan and the DB plan is not fully funded.
It is equal to the employer’s share of a DB plan’s Unfunded Vested Benefits (UVB).

New Jersey Becomes the Latest State to Extend Additional Leave Rights to Victims of Domestic Violence and Their Families

Published on: August 29, 2013 | by Kathleen M. Connelly

Employment Law Newsletter

For several decades New Jersey employers with 50 or more employees have been grappling with the administration of employee leave rights – 12 weeks in any 12- or 24- month period – under the federal Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA). The administrative challenges were heightened when the New Jersey Paid Family Leave Law – applicable to all employers regardless of size – was added to the mix. Well, things are about to become even more complicated. Effective October 1, 2013, New Jersey employers of 25 or more employees are required to provide 20 days of unpaid protected leave for eligible victims of domestic or sexual violence under the New Jersey Security and Financial Security Act (the NJ SAFE Act).

Who is eligible for leave under the NJ SAFE Act? Like the eligibility requirements under the NJFLA, employees must have worked for the employer for at least 12 months and for at least 1,000 hours in the immediately preceding 12-month period. In comparison, employees must have one year of service and 1,250 hours of work to qualify for benefits under the FMLA.

The Supreme Court Eases Burden for Retaliation Claims Under the LAD

Published on: August 2, 2013 | by Kathleen M. Connelly

By: Kathleen M. Connelly

By unanimous decision in the recent case of (July 17, 2012), the New Jersey Supreme Court extended greater protection to employees blowing the whistle on suspected violations of law in the workplace. While the decision may have some positive implications for employers, several aspects of the ruling may well spawn increased litigation.

Siding with employees, the court ruled that in actions under the New Jersey Law Against Discrimination (LAD), an employee alleging unlawful retaliation for having complained of discriminatory behavior in the workplace need only show that he/she had a good faith belief that the alleged conduct violated the LAD. The employee is not required to point to an actual victim of discrimination, and the fact that the employee was wrong and complained of conduct that was in fact entirely lawful will not bar a retaliation claim. This holding could significantly expand the number of employees eligible to pursue unlawful retaliation claims in response to a termination or other adverse employment action.

Proposed Legislation Could Change the Competitive Playing Field in New Jersey

Published on: April 12, 2013 | by Kathleen M. Connelly

New Jersey Courts have consistently enforced covenants not to compete (also known as restrictive covenants) contained within an employment agreement. Those covenants have traditionally been used by an employer to prevent an employee from leaving his/her employ and immediately soliciting the employer’s customers and/or clients – – many of whom the employee would not have known except as a result of working for that particular employer. Those covenants have also been used to prevent an employee from leaving his/her employment and using the employer’s confidential information (such as information about the employer’s pricing, margins, profits, etc.) to gain an unfair advantage in competition with the former employer. Provided that the covenants were reasonable and not simply intended to thwart fair competition, employers could be assured that their customer/client relationships and their confidential information would be protected.

Introduced on April 4, 2013, Assembly Bill No. 3970 could potentially change that competitive landscape in New Jersey. Assembly Bill No. 3970 is designated as “an act concerning certain employment contracts and unemployment compensation” and consists of only 2 paragraphs. It specifically states:

1.An unemployed individual found to be eligible to receive benefits pursuant to the “unemployment compensation law,” R.S. 43:21-1 et seq, shall not be bound by any covenant, contract, or agreement, entered into with the individual’s most recent employer, not to compete, not to disclose, or not to solicit. This section shall not be construed to apply to any covenant, contract, or agreement in effect on or before the date of enactment …

DOL Issues New FMLA Forms and Poster

Published on: March 7, 2013 | by Kathleen M. Connelly

Employment Law Newsletter

As illustrated in a related article in this issue, employers who fail to comply with the FMLA’s various notice requirements may land an employer in court. Although employers are free to craft their own notices so long as they are compliant with regulatory requirements, the DOL has issued standard forms containing all of the required components which the prudent employer should certainly utilize when administering FMLA requests. The DOL has recently issued updated FMLA forms that are available though the DOL website, http://webapps.dol.gov/libraryforms or can be downloaded in a PDF by clicking here. Employers should note that the updated forms do not include the Military Caregiver Leave form due to recent changes in those requirements that will presumably result in an revised form in the near future.

In addition, in conjunction with the new rule addressing Military Caregiver Leave, the DOL has issued a new FMLA poster that employers must prominently display in the workplace. A copy of the poster is likewise available on the DOL website.

Appeals Court Silences Teacher’s Claim That Her Facebook Post Referring to Students as “Future Criminals” was a Violation of Her First Amendment Rights

Published on: March 7, 2013 | by Kathleen M. Connelly

Employment Law Newsletter

In , the Appellate Division of the New Jersey Superior Court recently upheld Jennifer O’Brien’s termination for conduct unbecoming a teacher by posting the following comments on Facebook: “I’m not a teacher – I’m a warden for future criminals!” and “They had a scared straight program in school – why couldn’t [I] bring [first] graders?” First, the court agreed with the finding below that O’Brien was not commenting on a matter of public concern, namely student behavior in the classroom, in which case the comments may have been protected by the First Amendment. Rather, the court reasoned that O’Brien was making personal statement driven by her dissatisfaction with her job and her students’ conduct. Finally, the court observed that even if the comments were on a matter of public concern, O’Brien’s First Amendment rights to make such comments was outweighed by the school district’s interest in the efficient operations of its schools.

Although this decision has limited application outside of the public sector because First Amendment rights do not extend to private sector employment, it nonetheless serves as a heartening sign that under the right circumstances the courts will uphold the termination of an employee who makes damaging comments about the workplace on social media. While this decision did not involve a challenge of O’Brien’s communications as commentary about workplace conditions protected by Section 7 of the NLRA, it would be interesting to see how far the NLRB would push the boundaries of protected activity under these circumstances.

DOL Clarifies Leave Rights Under the FMLA

Published on: March 7, 2013 | by Kathleen M. Connelly

Employment Law Newsletter

Twenty years after its passage, most employers are aware that the Family and Medical Leave Act (FMLA) provides qualifying employees with up to 12 weeks of job-protected leave for varying circumstances. However, employers may not be aware that the U.S. Department of Labor recently issued new rules and an Interpretive Guidance that will likely expand the number of employees eligible for leave under the FMLA. Employer personnel responsible for handling leave requests must be aware of these developments to ensure proper administration of employee leave rights under the FMLA.

DOL Guidance Clarifies Leave Rights to Care for Adult Children: Among the circumstances where eligible employees may invoke FMLA rights is a leave to care for a son or daughter with a serious medical condition. The FMLA’s definition of “son or daughter” includes an child who is “incapable of self-care because of a mental or physical disability.” One of the unresolved issues under this definition was whether the age of the child when the disability began could be considered when making eligibility determinations for the parent. On January 14, 2013, the DOL issued interpretive guidelines clarifying that the age of the son or daughter at the onset of the disability is not relevant, and thus a qualifying parent is entitled to leave regardless of the age of the child or when the disability arose.