© 2012 Jackson Lewis LLP
© 2012
Jackson Lewis
LLP general information regarding its subject and explicitly may not be construed as
This
presentation
provides
This
presentation
provides
generalconcerning
information
regarding
its subject and
explicitly
may not
be concerning
construed as
providing any individualized advice
particular
circumstances.
Persons
needing
advice
providing
any individualized
advicecounsel
concerning
particular
circumstances.
needing advice concerning
11
particular
circumstances
must consult
concerning
those
circumstances.Persons
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particular circumstances must consult counsel concerning those circumstances. www.jacksonlewis.com
Integral part of your communications strategy
Connect with your customers/clients or field
offices; exchange ideas
Sharing content allows you to reach new people
inexpensively
Expected in today’s market
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Attract Employees – through FaceBook®
presence or advertising, LinkedIn®
discussion board or YouTube®
Source – Twitter®, LinkedIn®
Engage – gather information from target
employees for profiles
Screen – look at profiles (be careful)
Close the deal – welcome through
conversations on social network
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3
In one survey by CareerBuilder.com, 37%
of participating employers said they use
social networking sites to research job
candidates.
–
–
–
–
Present professionally - 65%
Good Fit - 51%
Qualifications - 45%
Why not to hire – 12%
Promotion
Source: CareerBuilder Survey dated April 18, 2012
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Of this group, 34% rejected potential job
candidates because of content they found on
social media.
–
–
–
–
Provocative/inappropriate photos – 49%
Drinking or using drugs – 45%
Discriminatory comments – 28%
Bad mouthed previous employer – 33%
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• Largest growth not by teenagers but by
25 to 54-year-olds
• Most active users aged 18-34
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How many working hours are lost to social
networking?
Facebook has over 1 billion active users
52% of Facebook users log on every day; 36% Twitter
53 million minutes per year on FB
22% of employees visit social networking sites 5
or more times per week; many admit to logging
in while at work
Over 175 million Twitter registered users
Texting at Work
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• Education History • Vacation Photos
• Work History
• Party Photos
• Career Interests
• Family Information
• Hobbies
• Links to Profiles of
Friends
• Favorite Music
• Favorite Movies
• Links to Blogs
• Political Views
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•
Negligent hiring/supervision
•
Legal constraints on employee discipline
•
Discrimination/Harassment/Retaliation
•
Reputational harm to employees
•
Reputational harm to employers
•
Personal privacy pitfalls
•
Information, trade secrets or proprietary
information
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Yes, so long as the employer does not violate state or
federal discrimination laws, or other state statutes which
prohibit the use of certain kinds of information.
There is no prohibition against using information that an
applicant places in the public domain. However, use of
protected demographic information such as, race, gender,
national origin, age, and pregnancy among others, is
prohibited in hiring decisions.
Risks?
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10
•
An employer may be held liable for an
employee’s wrongful acts if the employer
knew or had reason to know of the risk the
employment created
–
Doe v. XYC Corp., N.J. Super. 122
(2005)(Court found employer held
employer had duty to investigate and
respond in case of alleged negligent
supervision of employee who was
criminally charged with child pornography
using workplace computer)
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•
National Labor Relations Act- Section 7 of
the NLRA guarantees employees the right
to “self-organization to form, join, or
assist labor organizations, to bargain
collectively through representatives of
their own choosing, and to engage in other
concerted activities for purpose of
collective bargaining or other mutual aid
or protection.”
•
Applies to both union and non-union
employees
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© 2012 Jackson Lewis LLP
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• NLRB has filed complaints in all 50 states
concerning social media or electronic
communications policies.
• Employees fired for making disparaging remarks
about managers or companies. NLRB contends the
statements are protected concerted activity under
labor laws.
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© 2012 Jackson Lewis LLP
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Acting General Counsel Reports
– May 30, 2012
– January 24, 2012
– August 18, 2011
• Rules that are ambiguous as to their application to Section 7 activity and
contain no limiting language or context that would clarify to employees that
the rule does not restrict Section 7 rights, are unlawful.
• Prohibiting employees from expressing their personal opinions to the
public regarding the work place, work satisfaction, or dissatisfaction, wages,
hours or work conditions.”
• Prohibiting employees from posting photos, music, videos, and the quotes
and personal information of others without obtaining the owner’s
permission and ensuring that the content can be legally shared, and from
using employer’s logos and trademarks.
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Acting General Counsel Reports
• Prohibiting offensive, demeaning,
abusive or inappropriate remarks
– Too ambiguous’
• No savings clause
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Some states have laws that prohibit employers
from considering off-duty conduct when
making adverse employment decisions
– A number of states, have statutes known as
“lifestyle discrimination” laws, which ban
discrimination based on legal off-duty
recreational behavior.
An employer could arguably violate these laws
by terminating an employee after discovering
from social media that, for example, the
employee was drinking the night before.
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•
Expression of political opinions (e.g. New Jersey)
•
Wrongful termination in violation of public policy
(arrests, convictions, bankruptcy, workers’
compensation history)
•
Whistleblowing
•
Potential discrimination/harassment/
retaliation claims
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Employer viewing of applicant’s personal
information on social networking/blogging site may
trigger protections of anti-discrimination laws.
Sites may contain information regarding age, race,
national origin, disabilities, sexual orientation
religion and other protected characteristics (Genetic
or Medical Information).
Difficult for employer to prove it did not rely upon
personal information.
Even if not unlawful, risk of relying on inaccurate or
outdated information.
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Electronic communications
provide employees with an
opportunity for misuse and
can be used as evidence to
support a harassment or
discrimination claim
Knew or should have
known standard applies
Blakely v. Continental
Airlines, Inc., 164 N.J. 38
(2000)(Company has duty
to take effective measure
to stop harassment via
“Crew Member Forum”
once it knew or should
have known harassment
was taking place)
What about off-duty
conduct?
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Ohio Police Officer disciplined for tailgating incident—Viewed
over 300,000 times on YouTube
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20
particular circumstances must consult counsel concerning those circumstances. www.jacksonlewis.com
© 2012 Jackson Lewis LLP
This presentation provides general information regarding its subject and explicitly may not be construed as
providing any individualized advice concerning particular circumstances. Persons needing advice concerning
21
particular circumstances must consult counsel concerning those circumstances. www.jacksonlewis.com
© 2012 Jackson Lewis LLP
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providing any individualized advice concerning particular circumstances. Persons needing advice concerning
22
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•
Defamation - Plaintiff must prove the defendant
published a false statement concerning the plaintiff
that tends to harm the plaintiff’s reputation.
•
Employer can be liable if the employee had apparent
authority to speak on its behalf – Beware of personal
references!!
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•
Blogs and other electronic communications also
may have dramatic negative consequences for
employers:
–
Employees posted video/photographs harming company image
–
California jury awarded employer $775,000 in compensatory
and punitive damages against former employees for
“cybersmearing” of employer. Varian Medical Systems, Inc. v.
Delfino, Santa Clara Super. Ct. No. CV780187 (Dec. 18, 2001)
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Employee Monitoring of
Communication and Privacy Issues
The key question: Did the employee have a
reasonable expectation of privacy in the electronic
communication?
Employers should ensure monitoring is based on
legitimate needs and limited in scope to achieve
those needs.
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Courts will be more inclined to rule in favor of
the employer if:
–
Employer owns the “System” (computer, e-mail, etc.)
–
Employee voluntarily uses an employer’s network
–
Employee has consented to be monitored (usually
based in written personnel policy)
–
Stengart v. Loving Care Agency
–
Quon
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Monitoring – Preventive Steps
•
Develop a specific, written policy:
–
Establish information systems are the property of the employer – BE
SPECIFIC
–
Reserve the right to monitor
–
Prohibit inappropriate use
–
Include penalties for policy violations
•
Train/educate employees and others – temps, I/Cs, etc.
•
Keep the monitoring work-related
•
Permit reasonable personal use
•
Consider additional steps – desktop statement, posting in common area,
written consent/ acknowledgement . . .
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Pietrylo v. Hillstone Rest. Group d/b/a
Houston’s, 2009 U.S. Dist. LEXIS 88702 (D.N.J.
2009).
– Employer viewed former employees' internet
discussion group critical of the employer by
coercing another employee to provide the
password.
– Jury found violation of Federal Stored
Communications Act which prohibits
intentional access of stored electronic
communications without proper authorization.
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EEOC v. Simply Storage Management S.D. Indiana
No. 1:09-cv-1223 (2010)
– The Equal Employment Opportunity Commission brought suit
on behalf of plaintiffs and other similarly situated employees
who claimed their employers were liable for a supervisor’s
alleged sexual harassment. The EEOC requested a discovery
conference because counsel for the parties disagreed as to
whether the two named plaintiffs must produce the Internet
social networking site profiles, including postings, pictures,
blogs, messages, personal information, lists of “friends,” and of
causes joined that the user has placed or created online.
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– According to the court, limiting discovery to posts that
specifically referenced the mental issues and harassment
alleged by the plaintiffs would be too narrow, while
admitting the full profiles would include likely irrelevantand potentially inflammatory-content. The court held, “It
is reasonable to expect severe emotional or mental injury to
manifest itself in some SNS content, and an examination of
that content might reveal whether onset occurred, when,
and the degree of distress. Further, information that
evidences other stressors that could have produced the
alleged emotional distress is also relevant.”
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– Defined the relevant scope of discovery as including
“any profiles, postings, or messages (including
status updates, wall comments, causes joined,
groups joined, activity streams, blog entries)… that
reveal, refer, or relate to any emotion, feeling, or
mental state, as well as communications that reveal,
refer, or relate to events that could reasonably be
expected to produce a significant emotion, feeling,
or mental state.”
– Discovery
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Develop policy on whether HR/Hiring Managers can access
social networking sites for job applicants/employees.
HR/IT personnel responsible for monitoring/using electronic
information are properly trained to avoid improper access and
to screen out information that cannot be lawfully considered
in the application and/or disciplinary decision-making
process
Consider prohibiting access to private password social
networking sites without proper authorization. Do not allow
third party to “friend” an applicant to gain access to site.
Ensure appropriate employment decisions are made based on
lawful verified information.
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32
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Consider whether to block employee access to social
networking sites through company computers or to limit
access during working hours.
Consider restriction on professional references via
LinkedIn.
Investigate complaints of discrimination/harassment
stemming from posts on social networking/blogs.
Ensure security of employer sponsored blogs.
Provide guidelines on appropriate “Terms of Use” of
employer sponsored sites/blogs.
Implement a social networking/blogging policy which
explains diminished right to privacy.
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33
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•
Consider Company philosophy – business.
•
No expectation of privacy when using company equipment.
•
Employees must abide by non-disclosure and confidentiality
agreements/policies.
•
Only individuals officially designated may speak on behalf of the
Company – FTC Endorsement
•
“Bloggers Beware” - Require a disclaimer:
“The views expressed in this blog are my personal views
and opinions and do not necessarily represent the views or
opinions of my employer.”
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•
Company policies governing corporate logos, branding, and
identity apply to all electronic communications. – Examples!
•
Employees are prohibited from making defamatory comments
when discussing the employer, superiors, co-workers,
products, services and/or competitors. – Examples!
•
Employees must comply with company policies with respect to
their electronic communications, such as policies prohibiting
harassment and standards of conduct.
•
Company reserves the right to take disciplinary action if the
employee's communications violate company policy.
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35
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Do not prohibit employees from discussing terms
and conditions of employment --- NLRA
If allowed at work, time spent social
networking/blogging/texting should not
interfere with job duties.
Remind employees that off-duty conversations
can have significant workplace affects.
Avoid “Big Brother” image while protecting the
Company and its employees.
Get a signed acknowledgment of the policy.
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36
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Take Aways
•
Monitor Legal Developments
•
Don’t Be Left Without A Good Story to
Tell!
Visit our blog:
http://www.workplaceprivacyreport.com
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particular circumstances must consult counsel concerning those circumstances. www.jacksonlewis.com
© 2012 Jackson Lewis LLP
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38
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Effective on April 25, 2012, when the EEOC
published its Enforcement Guidance on the
Consideration of Arrest and Conviction Records
in Employment Decisions under Title VII of the
Civil Rights Act of 1964
Replaced (1) 1987 EEOC Policy Statement
regarding Conviction Records and (2) 1990 Policy
Guidance on the Consideration of Arrest Records
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What does this
mean for
employers?
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In most cases, before disqualifying an
individual with a criminal record from
employment, employers should engage in
an individualized assessment involving a
dialogue with that individual. Employers
should also implement a policy of
targeted screening.
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41
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Employers who use criminal
background checks on a regular
basis and have a “one size
fits all” criminal background
check policy need to pay
particular attention to the
new Guidance.
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Can lead to liability under Title VII
(disparate impact - where a facially
neutral policy may disproportionately
impact a protected
group under Title VII)
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Disparate Impact Refresher
Burden-Shifting Framework:
Plaintiff (or EEOC) must demonstrate the employer’s facially
neutral policy has a statistically significant disparate impact on a
protected group
Burden then shifts to employer to demonstrate the policy is jobrelated and consistent with business necessity (and consistently
applied)
Even if the employer proves business necessity, the plaintiff (or
EEOC) may prevail by showing the employer refused to adopt an
alternative practice that would satisfy the employer’s legitimate
interests without having a disparate impact on a protected class.
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EEOC will seek to make out a prima facie
case of disparate impact through
statistical analyses of the employer’s
applicant, workforce, and/or third-party
background check history.
Therefore, expect the EEOC to request
applicant and background check data
during investigations!
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45
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And remember….
the EEOC can expand an
individual charge into a systemic
investigation even if the charge does
not challenge a criminal background
practice or allege hiring
discrimination
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Under the 1987 Policy, employers could
demonstrate “business necessity” by showing it
considered 3 factors in making its decision:
– The nature and gravity of the criminal offense
– The time that has passed since the conviction and/or
completion of the sentence
– The nature of the job held or sought
(the “Green Factors”, from Green v. Missouri Pacific
Railroad, 549 F.2d 1158 (8th Cir. 1977))
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Now, under the new Guidance, an employer may
satisfy its Title VII obligations by showing that its
internal policy on criminal background checks is
“narrowly tailored”, meaning having a
“demonstrably tight nexus to the position in
question.”
Best practice for employers now is targeted
screening based on the Green factors plus
individualized assessment for those people
identified by the screening.
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9 Areas to Consider in the individualized
Assessment:
- The facts and circumstances surrounding the
offense
- The number of offenses for which the individual
was convicted
- Age at time of conviction or release from prison
- Criminal record may be inaccurate
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- Evidence that the individual performed the same
type of work, post-conviction, with the same or a
different employer, without incidents of criminal
conduct
- The length and consistency of employment history
before and after the offense
- Risk of recidivism
- Employment or character references; other
information regarding the individual’s fitness
- Whether the individual is bonded
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Guidance prefers notice to the individual under
scrutiny
Allow the applicant/employee to explain the
circumstances of the conviction
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51
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If the applicant/employee does not respond to
the employer’s inquiries regarding the 9 factors,
the employer may make its decision without the
information.
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52
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EXAMPLE
John (White) and Robert (African American) are
both recent graduates of State University, have
similar educational backgrounds, skills, and work
experience.
Each previously pled guilty to charges of
possessing and distributing marijuana as high
school students. No subsequent contact with
criminal justice system.
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EXAMPLE (continued)
Both apply for employment with Office
Jobs, Inc. and are interviewed.
Office Jobs, Inc. obtains consent to
conduct background checks on both
applicants.
Background checks reveal past drug
convictions.
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EXAMPLE (continued)
Office Jobs, Inc. representative decides not to call
back Robert for a second interview
– Remarked to co-worker, “Office Jobs cannot afford to refer
‘these drug dealer types’ to client companies.”
Office Jobs, Inc. representative decides to call back
John for a second interview.
– Remarked to co-worker that youth at the time of conviction
and no subsequent contact with criminal justice system
Has Title VII been violated?
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EXAMPLE (continued)
Can Robert/EEOC establish evidence of intentional
discrimination?
– EEOC says YES
Why?
– Statement evidencing bias
– Inconsistency in treatment of similarly-situated applicants
– These factors evidence discriminatory intent.
Look for inconsistencies in your hiring processes,
and across decision makers!
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Arrests Distinguished From Convictions:
Arrest record standing alone may not be used to
deny an employment opportunity
The fact an arrest occurred does not establish that
criminal conduct occurred. Therefore, an exclusion
based on an arrest cannot be job-related and
consistent with business necessity.
© 2012 Jackson Lewis LLP
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Arrests Distinguished From Convictions
(continued):
However, an employer may make an
employment decision based on the conduct
underlying the arrest if the individual would be
unfit for the position because of the conduct.
Must investigate circumstances leading to
arrest.
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Persons Subject to Federal Prohibitions or
Restrictions
• Federal laws and regulations prohibit the employment
of persons with records of certain crimes in particular
positions, for example:
» Child care workers
» Bank employees
» Port workers
• Employers may obtain a waiver from these restrictions.
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Persons Subject to State or Local Prohibitions or
Restrictions
• Not the case!
• The EEOC’s refusal to allow employers to establish
business necessity by pointing to state or local laws
or regulations means that the employer must abide
by the new Guidance (targeted screening plus
individualized assessment).
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• “Ban the Box” Legislation
– City of Newark & Atlantic City
– Limits an employer's right to
inquire into a job applicant's
criminal history
• “Ban the box" movement and has been gaining
momentum nationwide. Similar legislation in
Philadelphia, Baltimore, Chicago, Atlanta, Seattle, and
Detroit.
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Developments expected in 2013:
• Federal
– “Ban the Box Act of 2012” (H.R. 6220) introduced in House
of Representatives and Referred to Committee
• New Jersey
– A2300 referred to Assembly Law and Public Safety
Committee earlier this year.
• Neither expected to pass this year, but new Ban the Box
Bills are expected in 2013.
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Practical Tips
Document thought process if developing general disqualifications
(business purpose, past experiences, etc)
Use targeted screens
– If possible, use different standards for different positions
Adopt policy of individualized assessment
– Avoid policies that include automatic exclusions
– “ABC Corp. believes the following crimes are job-related, and
applicants with these offenses will be subject to individualized
assessment…”
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Practical Tips (continued)
Disqualifiers mandated by state law
– Crime must precisely meet state exclusion
– To be safe, perform individualized assessment
Train HR and decision-makers
Self-Audit
When responding to EEOC charges unrelated to this
issue, avoid providing criminal background practice and
policy information in exhibits
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QUESTIONS?
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10 million independent contractors
7% of total employment
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Up to 30% of employers misclassify workers.
3.4 million workers are contractors, when they
should be employees.
Revenue loss to U.S. Treasury is $3.4 billion,
annually:
–
–
–
–
Income tax.
Social Security.
Medicare.
Unemployment Insurance Trust Fund.
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129 FTEs for multi-agency audit and enforcement.
Wage and Hour Division hires 107 new investigators for
targeted industry investigations.
FY 2012 budget includes $15 million for the hiring of new
personnel within DOL’s Wage and Hour Division to
investigate misclassification.
FY 2012 budget makes $25 million available to states to
enhance their mechanisms for conducting
misclassification audits.
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OFCCP allocates $3.6 million and 11 FTEs to address
misclassification in government contract operation.
Office of the Solicitor allocates $1.4 million and 7
FTEs to bring multi-state litigation against large
employers determined to “abuse” independent
contractor status.
OSHA adds 2 FTEs to train inspectors on worker
classification issues.
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Today we will be covering:
Definition of independent contractor:
– Understand and recognize the factors that differentiate between “contractors”
and “employees;”
– Review the various laws that are impacted by improper classification of workers;
– Review the consequences of misclassification.
Joint/co-employment issues.
Practical takeaways.
National Labor Relations Act initiatives regarding union organizing
and quickie elections.
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“We’ve always done so.”
“Our business model requires it to remain
competitive.”
“That is what these workers prefer.”
Reality check: The reasons are totally irrelevant to the
legitimate (legal) reasons that support a valid independent
contractor classification.
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Common Law Right to Control Test.
IRS Category Test (replaced IRS “20-Factor”
Test).
FLSA “Economic Realities” Test.
“ABC” Test.
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Hiring party’s control over
details of the work
Duration of the relationship
Worker’s occupation and
skill
Method of payment
Relevance of work to
company’s business
Taxes, employee benefits
Worker’s investment,
materials and tools
Control of work hours
Right to hire assistants
Parties’ intentions
Location of work
Most critical issue
who controls the manner and means of work.
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Instructions
Oral or Written Reports
Training
Payment by Hour, Week, Month
Integration
Payment of Business/Traveling Expenses
Services Rendered Personally
Furnishing Tools and Materials
Hiring, Supervising, Paying Assistants
Significant Investment
Continuing Relationship
Realization of Profit or Loss
Set Hours of Work
Working for More than One Business at a
Time
Full-Time Required
Working on Business Premises
Order or Sequence Set
Making Services Available to the General
Public
Company’s Right to Discharge
Worker’s Right to Terminate
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Behavioral control: Amount of control of
where, when and how the job is done.
Financial control: Worker’s pay, business
expenses, and facility investment.
Type of relationship of the parties: Written
agreements, benefits, length of relationship.
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“Economic reality” rather than “technical concepts.”
The U.S. Supreme Court has held that it is the total activity or
situation that controls. Significant factors:
– The extent to which the services rendered are an integral part of the principal’s
business.
– The permanency of the relationship.
– The amount of the alleged contractor’s investment in facilities and equipment.
– The nature and degree of control by the principal.
– The alleged contractor’s opportunities for profit and loss.
– The amount of initiative, judgment, or foresight in open market competition with
others required for the success of the claimed independent contractor.
– The degree of independent business organization and operation.
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Under the “ABC” test, used in New Jersey to
determine unemployment eligibility as well as
wage hour coverage, a worker is an employee
unless:
A.
B.
C.
The worker is free from control and direction in performing the services
(by contract and in fact);
The service is performed outside the usual course of the company’s
business or outside places where such service is performed; and
The worker is customarily engaged in an independently established
trade, occupation, profession or business of the same nature as that
involved in the service performed.
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A. “Freedom from Control”
“Free from control and direction in connection with the
performance of the service, both under the contract for the
performance of service and in fact.”
Employment contract/job description indicating that individual is
free from supervisory direction of control is insufficient.
Look at actual activities and duties, which should be carried out
with minimal instruction.
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B. “Service Outside Usual Course of Employer’s
Business”
If the worker’s services form a regular and continuing part of
employer’s business, then individual is considered
employee.
Almost impossible to meet in many cases.
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C. Independent Trade, Occupation, Profession
or Business
The worker has to be engaged in independent trade or
business.
The worker can sell his services to a number of entities in
community.
Worker cannot be dedicated to one employer.
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Irrelevant Factors Under “ABC” Test:
Failure to withhold taxes;
Contribute to unemployment compensation;
Provide workers’ compensation;
Employer’s belief/employee’s belief.
– Strict liability statute.
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New Jersey:
– ABC Test – Unemployment (NJ Rev. Stat. Sec. 43:2119(i)(6)(A)(B)(C)) and Worker’s Compensation (NJ Rev. Stat. Sec.
34-21-25 et seq).
– Presumption of Construction Workers as Employees under the
Construction Industry Independent Contractor Act (N.J.S.A.
34:20-4) for purposes of:
• the "New Jersey Prevailing Wage Act," P.L.1963, c.150 (C.34:11-56.25 et
seq.),
• the "unemployment compensation law," R.S.43:21-1 et seq.,
• the "Temporary Disability Benefits Law,” P.L.1948, c.110 (C.43:21-25 et
seq.),
• the "New Jersey Gross Income Tax Act," N.J.S.54A:1-1 et seq.,
• the "New Jersey State Wage and Hour Law," P.L.1966, c.113 (C.34:11-56a
et seq.)
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NJ Assembly Bill 1578 (Trucking):
– Presumption of employment relationship for work done by individuals
in drayage trucking or parcel delivery trucking industries.
– Subject to ABC test to overcome presumption of employment.
– Violators subject to criminal penalties; employers not allowed to
request or require individuals to enter into an agreement that would
misclassify them.
NJ Assembly Bill No. 3310:
– Would require prompt full payment of independent contractors for
their services, and mandate additional record keeping requirements
for ALL businesses and non-profits that use certain independent
contractors.
– Authorizes DOL to investigate, mediate and prosecute claims.
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Each Statute and Enforcement Agency Has Slightly Different Tests for
Determining Independent Contractor Status:
IRS: U.S. Tax Code (federal income tax withholding).
U.S. Department of Labor:
–
FLSA (Fair Labor Standards Act – minimum wage and overtime);
–
FMLA (Family and Medical Leave Act);
–
ERISA (Employee Retirement Income Security Act).
State Unemployment Laws/Agencies.
State Workers’ Compensation Laws/Agencies.
State Income Tax Withholding.
Federal Anti-Discrimination Laws (Title VII, ADA).
State and Local Anti-Discrimination Laws.
NLRA (National Labor Relations Act).
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FLSA Liability: Consequences
Retroactive entitlement to overtime pay by the contractor for two to
three years.
Employer likely has not kept accurate time records, leading to inability
to defend claims.
Liquidated (double) damages are applied; attorney’s fees can be
awarded.
DOL audits and investigations can result.
Class actions can result in exorbitant costs and settlements.
Liability for overtime.
Joint and several liability.
–
If team with staffing agency, must be “completely disassociated with respect to the
employment of a particular employee.”
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State Laws:
Possibility the employee’s share of taxes, which should have been
withheld, plus penalties and interest.
State tax liability often will trigger investigation into unpaid workers’
compensation and unemployment benefits. This also can result
conversely when contractors apply for such benefits after termination.
Suspension or revocation of incorporation or limited liability status,
commissioner can revoke “licenses” for repeat offenders, and business
subject to subsequent audits thereafter (See S.2773)
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State Laws (cont’d):
Criminal sanctions and administrative penalties, including debarment
from public contract and stop work order under New Jersey
Construction Industry Independent Contractor Act (CIICA), and
significant financial penalties that are subject to increase if found to be
knowing misclassification (See N.J.S.A. 34:20-5)
Responsible for underpaid wages, overtime, benefits or taxes on behalf
of misclassified workers under CIICA
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ERISA Liability:
Class actions.
Retroactive entitlement to benefits by the contractor.
Plan may fail coverage or discrimination tests, or may
be deemed to violate minimum participation
standards.
Plan may be liable for wrongful denial of benefits
and breach of fiduciary duty claims.
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EEOC Enforcement Guidance: Application of EEO
Laws to Contingent Workers Placed by Temporary
Employment Agencies and Other Staffing Firms:
– Covers temporary employees, leased employees and project management.
– Staffing firms must hire and make job assignments in a non-discriminatory
manner.
– Both staffing firms and their clients share EEO responsibilities.
– Both client and staffing company are considered employers if they have the right
to control the work and have the statutory minimum number of employees.
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Litigation – FLSA/Wage & Hour.
Eligibility for benefits.
Unknown employment issues:
– Discrimination;
– Harassment;
– Immigration;
– Retaliation.
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The National Labor Relations Act applies only to
employees. A common tactic of labor unions seeking
to organize workers is to challenge the independentcontractor status of a group of workers that perform a
certain function for companies in a particular industry.
The unions then seek a court determination that the
workers are employees entitled to the right to organize
and bargain for the terms and conditions of their work.
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Title VII:
Risk of liability based on joint employment.
ADA – Inquiries and Medical Examinations:
“Pre-Offer” stage or “employment” stage?
EEOC: “Offer” occurs when assignment is given.
Family and Medical Leave Act:
“Primary employer” (staffing company): Authority to hire and
fire, assign and place, make payroll, provide benefits?
Responsible for notice, leave benefits, and job restoration.
“Secondary employer” (on-site employer): Must accept
returning employee; may not retaliate.
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Determine who are legally independent
contractors:
– Do they meet the criteria of the tests?
– Review written agreements.
– Examine the facts on the ground – actual job duties.
– Train managers in how to deal properly with contractors.
– Know the legal risks.
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Virtually any independent contractor
classification could come under scrutiny if:
The work is part of the company’s normal business;
The company exerts significant control over the manner in
which the work is performed, as opposed to the quality of
the goods or service provided;
The worker cannot or does not work for other clients or
customers; and/or
The worker cannot subcontract the work.
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Consider whether to terminate all
independent contractor agreements and
rehire as employees.
Consider hiring independent contractors
through temporary agency or other company.
Loosen restrictions and control; allow
subcontracting or work for other clients.
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1.
Do not negotiate pay rates.
2.
Do not provide training.
3.
Do not negotiate vacation days or personal days off.
4.
Do not provide performance evaluations or career
guidance.
5.
Do not issue business cards with firm name or logo.
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6.
Do not permit use of facilities or recreational activities.
7.
Do not regularly include in departmental social
functions.
8.
Do not directly investigate allegations of harassment,
discrimination, or related issues.
9.
Do not discipline or terminate.
10.
Do not provide severance payments or employee
benefits.
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11. Do not provide tools, equipment, uniforms.
12.
13.
14.
15.
Do not pay business expenses of contractors.
Do not allow contractors to perform the same
functions of the company’s business.
Do not enter into non-compete and exclusivity
arrangements that limit the control of work for
other clients.
Do not enter into unlimited engagements with no
regular end to the term of the contract.
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Make the agreement with the staffing company, not the
contingent worker.
Clearly designate the responsibilities and services of each party
— hiring, firing, training, assigning work, making work rules, etc.
Specify job descriptions.
Indicate situations under which employer may terminate the
contract.
Delineate all confidentiality requirements.
Source: U.S. Chamber of Commerce Small Business Nation
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Stipulate which party is responsible for payroll,
withholding, and payment of taxes for the individuals.
Clarify who has primary responsibility for paying and
providing workers’ compensation insurance.
Indicate the extent to which employee benefits will be
provided by the staffing company and the employees’ level
of contribution.
Source: U.S. Chamber of Commerce Small Business Nation
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Rich Cino
Jackson Lewis LLP
Managing Partner – Morristown Office
(973) 538-6890
cinor@jacksonlewis.com
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Patricia Smith was confirmed as Solicitor on February 4,
2010 (by 60-37 vote).
So far, there have been two nominees for Administrator of
the Wage and Hour Division: Lorelei Boylan and Leon
Rodriguez. Both nominations have been withdrawn, and
there is currently no nominee.
Since 2008, WHD has been run by a political Deputy
Administrator, Nancy Leppink.
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The Wage and Hour Division has received
significant increases in funding and personnel
under this Administration.
Fiscal Year
Appropriations
Authorized FTE
2008
$175,658,000
1,208
2009
$193,092,000
1,283
2010
$227,606,000
1,538
2011
$227,491,000
1,658
2012
$227,061,000
1,759
2013 (requested)
$237,730,000
1,839
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These figures represent increases of > 35% in
appropriations and > 52% in agency headcount in just five
years.
Investigator headcount has already risen from around 750
at the start of 2009 to between 1,000 and 1,100 now.
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FY2013 DOL budget request:
– Seeks $10.2 million to fund 72 new FTE for WHD to
focus on FLSA and FMLA issues, as well as independent
contractor misclassification.
– Proposes cutting $2.0 million and 12 FTE devoted to
toll-free call center, including for employer compliance
assistance.
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March 2010: Announcement that WHD is
abandoning opinion letters in favor of
Administrator Interpretations:
– “Guidance in this form will be useful in clarifying the law as it
relates to an entire industry, a category of employees, or to all
employees.”
– First two AIs overturned recent opinion letters from the Bush era
regarding the administrative exemption in the financial services
industry and the status of PPE as clothing under FLSA section 3(o).
– No new AIs since June 2010.
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Solicitor’s office far more active in trying to
change the law and to affect pending
litigation:
– Amicus briefs regarding pharmaceutical sales
representatives, definition of “commissions” under
FLSA section 7(i), tipped employees, and hybrid opt-in
/ opt-out cases.
– Amicus briefs have been uniformly pro-worker.
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December 2010: “Bridge to Justice” program:
– WHD and the American Bar Association announced “an
unprecedented collaboration providing for an Attorney
Referral System” to pursue litigation against employers.
– When FLSA or FMLA complainants receive a section 16(b)
letter, they also receive a toll-free number to contact the
ABA’s referral hotline.
– It remains unclear what information WHD will provide to
claimants and their attorneys and when. This raises the
stakes for cooperating in an ordinary WHD investigation.
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May 2011: WHD announces release of timekeeping
application for smartphones:
– Encourages workers to keep their own records of hours worked.
– Allows workers to forward their time records directly to WHD in
electronic form.
– Investigators may approach investigations with a presumption that
workers’ time records are accurate if there are discrepancies
between those records and the employer’s records.
– Employers need to understand this and to address the possibility of
multiple sets of time records.
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September 2011: DOL signs MOU with IRS
regarding misclassification issues.
Throughout 2011 and 2012: DOL signs MOU
with 13 states regarding misclassification:
– California Colorado, Connecticut, Hawaii, Illinois,
Louisiana, Maryland, Massachusetts, Minnesota,
Missouri, Montana, Utah, and Washington.
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April 2011 FLSA Final Rule:
– States in preamble that additional non-salary and non-overtime
compensation is inconsistent with payment on a fluctuating
workweek basis.
– Clarifies that there is no limit on the amount of allowable mandatory
employee tip pool contributions.
– Embodies in regulations WHD’s enforcement position since 1974
that tips are the property of employees and thus that regardless of
tip credit, employers cannot retain employee tips.
– Imposes significant new record-keeping obligations in connection
with tipped employees.
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The Fall 2011 semi-annual Regulatory Agenda,
published on January 20, 2012, lists several
contemplated rulemakings for WHD:
– FLSA Child Labor Hazardous Occupations Order No. 7
(operation of power-driver hoisting apparatus)  anticipates a
request for information in February 2012 (not yet issued).
– FMLA  anticipates an NPRM in January 2012 (issued
January 30, 2012, and comment period closed on April 30).
– FLSA Domestic Service exemption  NPRM published
December 27, 2011 (comment period closed on March 21).
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Fall 2011 semi-annual Regulatory Agenda
(cont’d):
– FLSA Child Labor regulations involving agricultural employment 
NPRM published on September 2, 2011; comment period closed on
December 1, 2011; and final rule expected in August 2012 (NPRM
withdrawn on April 26, 2012).
– FLSA Right to Know regulation  DOL has gone from anticipating an
NPRM in April 2011 to now listing the status as “Next Action
Undetermined” and providing no date at all.
– SCA Nondisplacement of Qualified Workers  final rule issued on
August 29, 2011.
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First year of wage and hour enforcement under the
Obama Administration: all about the American
Recovery and Reinvestment Act (i.e., stimulus
money and prevailing wages on government
contracts).
Since then: focus has been on looking more broadly
at the notion of the employment relationship:
– Independent contractor versus employee classification.
– “Fissured” industries: sub-contracting, third-party
management, franchising, and independent contracting.
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Main targets of current enforcement efforts:
o Construction;
o Meat and poultry processing;
o Janitorial (FY2013 national
initiative);
o Hotel / motel (FY2012
national initiative);
o Home health care;
o Restaurants;
o Child care;
o Personnel services;
o Transportation and
warehousing;
o Agriculture;
o Car washes.
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“Liquidated damages are the new normal.”
Expansion of donning / doffing beyond poultry and
meatpacking industries.
Heavy focus on pre-shift and post-shift activities such as
computer boot-up and power-down, shift exchanges, and
safety meetings.
WHD is instructing investigators to impose CMPs in first
investigations if criteria for willful violation can be
established, as well as in virtually all “repeat” violation
scenarios.
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Investigators are insisting on retroactive tolling
agreements.
– Be very careful about the tolling language.
– SOL has been unwilling to negotiate a single word in the
tolling agreements.
Much more aggressive use of the MODO procedure to press
for company-wide self-audits, even for non-systemic
violations. DOL now wants remedies and relief on an
enterprise-wide basis whenever possible. Investigations are
increasingly non establishment-focused.
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Patient Protection and Affordable Care Act, signed on
March 23, 2010, creates FLSA section 7(r)(1) requiring
reasonable unpaid breaks for mothers to express
breast milk for infants up to one year old.
Employee Misclassification Prevention Act,
reintroduced October 13, 2011:
– Requires records reflecting accurate classification of
employees versus independent contractors.
– Double liquidated damages.
– Penalties of up to $5,000 per employee.
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Includes:
1.
2.
3.
4.
Time spent in primary work activities;
Idle or stand-by time controlled or requested by
employer;
Time spent by an employee outside normal hours
“suffered or permitted” by employer that benefits
the employer.
Work we know or have reason to know was
performed is work “suffered or permitted.”
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Unauthorized Working Time
1.
2.
3.
Employers must compensate employees for
unauthorized work when an employer “suffers or
permits” employee to work;
An employer suffers or permits an employee to
work where the employer knew or had reason to
believe the employee was performing work;
Employers are free to discipline employees for
unauthorized work.
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Rest Periods and Diet Coke Breaks
1.
2.
Rest periods/coffee breaks up to 20 minutes
are compensable working time.
Employers are not required by federal law to
provide rest periods or coffee breaks, but
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Meal Periods
1. Meal periods are considered non-working time only if:
a. They are at least 30 minutes in duration; and
b. The employee is completely relieved of duties –
ensure the employee DOES NOT WORK.
2. Generally, the employee must be allowed to leave the
premises.
3. Meal periods are compensable, if the employee is
frequently interrupted to perform work.
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124
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Rest and Meal Periods: Rest periods of short duration,
usually 20 minutes or less, are common in industry (and
promote the efficiency of the employee) and are
customarily paid for as working time. These short periods
must be counted as hours worked. Unauthorized
extensions of authorized work breaks need not be counted
as hours worked when the employer has expressly and
unambiguously communicated to the employee that the
authorized break may only last for a specific length of
time, that any extension of the break is contrary to the
employer's rules, and any extension of the break will be
punished.
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Bona fide meal periods (typically 30 minutes
or more) generally need not be compensated
as work time. The employee must be
completely relieved from duty for the purpose
of eating regular meals. The employee is not
relieved if he/she is required to perform any
duties, whether active or inactive, while
eating.
– Rest period between 20 and 30 minutes
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Compensable Working Time
Travel
Travel between home and work is not work time, even if
the employee has no fixed work location.
- Travel to first job site locally is not work time
Travel to first job site in a distant market is work time
after deducting average travel time from home to sites
in local market area (generally up to an hour’s travel)
 Travel between job sites during the normal work day is work
time.

© 2012 Jackson Lewis LLP
This regarding
presentation
its subject
provides
and
general
explicitly
information
may not be
regarding
construed
itsassubject
providing
andany
explicitly
individualized
may notadvice
be construed
concerning
as
providing any
particular
circumstances.
individualized
Persons
advice
needing
concerning
advice
particular
concerning
circumstances.
particular circumstances
Persons needing
must
advice
consult
concerning
counsel
127
particular circumstances
concerning
those circumstances.
must consult
www.jacksonlewis.compresentation
counsel concerning those circumstances.
provides general
www.jacksonlewis.com
information
Compensable Working Time
Business Travel
Travel for overnight trip: compensable for portion during
employee’s normal working hours, even on days the
employee does not ordinarily work
 Actual work performed while traveling
is compensable
© 2012 Jackson Lewis LLP
This regarding
presentation
its subject
provides
and
general
explicitly
information
may not be
regarding
construed
itsassubject
providing
andany
explicitly
individualized
may notadvice
be construed
concerning
as
providing any
particular
circumstances.
individualized
Persons
advice
needing
concerning
advice
particular
concerning
circumstances.
particular circumstances
Persons needing
must
advice
consult
concerning
counsel
128
particular circumstances
concerning
those circumstances.
must consult
www.jacksonlewis.compresentation
counsel concerning those circumstances.
provides general
www.jacksonlewis.com
information
Travel Time Example
 A construction company requires its crews to report to the main
office before the shift begins to pick up tools and to drive in a
company vehicle to the first job site.
 The employees then travel to two other job sites during the day.
 At the end of the day, the employer requires that they return to
the main office to drop off their tools.
 The employer pays for all time spent at the job sites.
The employer failed to compensate employees for the time spent traveling from the
office to the first job site and from the last job site to the office
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129
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Compensable Working Time
Training and Meeting Time

On-the job training is work time
Meeting and training programs are not work time if:
- Meetings are held outside of regular work hours
- Attendance is truly voluntary
- Training is not directly related to the employee’s job,
AND
- The employee does not perform any productive work while
attending the course or meeting

Voluntary attendance at an educational facility after hours is
not
work
time
© 2012
Jackson Lewis
LLPeven if related to employee’s job

© 2012
Jackson Lewis
LLP general information regarding its subject and explicitly may not be construed as
This
presentation
provides
This regarding
its subject andadvice
explicitly
may not particular
be construed
as providing any
individualized
adviceconcerning
concerning
providing
any individualized
concerning
circumstances.
Persons
needing advice
particular
circumstances.
Persons
needing
advice
concerning
particular
circumstances
must
consult
particular circumstances must consult counsel concerning those circumstances. www.jacksonlewis.com counsel
130
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Compensable Working Time
“On Call” Time
Time spent answering work-related phone calls in response
to “trouble” calls is work time

Time that employees spend “waiting to be engaged” is not
work time as long as:

Employee can effectively use on-call time for
his/her own purposes
© 2012 Jackson Lewis LLP
This regarding
presentation
its subject
provides
and
general
explicitly
information
may not be
regarding
construed
itsassubject
providing
andany
explicitly
individualized
may notadvice
be construed
concerning
as
providing any
particular
circumstances.
individualized
Persons
advice
needing
concerning
advice
particular
concerning
circumstances.
particular circumstances
Persons needing
must
advice
consult
concerning
counsel
131
particular circumstances
concerning
those circumstances.
must consult
www.jacksonlewis.compresentation
counsel concerning those circumstances.
provides general
www.jacksonlewis.com
information
On-Call Time
Factors Include:
 Requirement to remain on the employer’s premises
 Excessive geographical restrictions on the employer’s premises
 Frequency of calls is unduly restrictive
 Fixed response time is unduly restrictive
 Employee ability to easily trade his or her on-call responsibilities
with another employee
Extent to which employee is able to engage in personal activities
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Non-exempt Employees
No FLSA problem. Employees only paid for time
worked.
Exempt Employees Subject to the Salary Basis Test
Where Employer Closes the Office
Can force employees to use PTO.
Cannot deduct from pay if no PTO available
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SNOW DAYS/STATE OF EMERGENCY
Q. Am I required to pay employees for "snow
days" or other days when they are unable to
work due to "State of Emergencies" declared
by municipal, county or state officials?
A. No. Employers are not required to pay
employees for time not actually worked.
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Decide whether you want to pay
– Full days
– Partial days
Decide whether to allow employees to use
PTO
– Sick days
– Vacation days
Reserve the right to decide on an ad hoc basis
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INCLEMENT WEATHER
If you are a non-exempt employee and are late or absent from work due
to adverse weather conditions, and the Company has not closed the
office or announced a delayed opening, you will not receive
compensation [you may not use paid time off] for time lost.
In the event of a delayed opening, closure or early closure, the Company
will decide whether employees will be paid for lost time depending
upon the circumstances.
If an employee is already out on authorized paid absences, such as
vacation or personal days, you will not receive an additional day of pay
or time off if opening is delayed or the office is officially closed due to
inclement weather.
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Relatively recent changes:
New Rounding Regulations
Adoption of Federal White Collar Exemptions
New Posting Requirement
Bill to Increase Minimum Wage
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History of Rounding:
Prior to 2010, general assumption--rounding is
permissible under NJ as long as practice follows federal
regulations on rounding.
Beginning of 2010 – NJDOL takes position that rounding
is not permissible under NJ wage and hour law.
December 2010 – New Regulations issued by NJDOL
adopting federal regulations on permissible rounding
policies.
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New Regulation Adopted by NJDOL:
12:56-5.8 Use of time clocks
(a) Differences between clock records and actual hours worked. Time clocks are not
required. In those cases where time clocks are used, employees who voluntarily come in
before their regular starting time or remain after their closing time, do not have to be paid
for such periods provided, of course, that they do not engage in any work. Their early or late
clock punching may be disregarded. Minor differences between the clock records and actual
hours worked cannot ordinarily be avoided, but major discrepancies should be discouraged
since they raise a doubt as to the accuracy of the records of the hours actually worked.
(b) "Rounding" practices. It has been found that in some industries, particularly where time
clocks are used, there has been the practice for many years of recording the employees'
starting time and stopping time to the nearest 5 minutes, or to the nearest 1/10 or quarter of
an hour. Presumably, this arrangement averages out, so that the employees are fully
compensated for all the time they actually work. For enforcement purposes this practice of
computing working time will be accepted, provided that it is used in such a manner that it
will not result, over a period of time, in failure to compensate the employees properly for all
the time they have actually worked.
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Permissible Rounding Practices Under
Federal/New Jersey Law
– Appropriate timeframe (nearest 5, 6 or 15
minutes)
– Over period of time employees should be
compensated for all time actually worked.
– Give and take – no policy/practice which skews
results for the benefit of the employer
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140
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History of Exemptions:
New Jersey regulations on exemptions initially modeled after
federal overtime exemptions.
August 2004 – Federal overtime exemptions revised. New Jersey
does not change regulations.
March 2011 – NJDOL issues regulations proposing to repeal
existing rules on exemptions (executive, administrative,
professional and outside sales employees) and replace with
federal overtime exemptions under 29 CFR Part 541.
September 2011 – NJDOL issues final regulation adopting by
reference most provisions in 20 CFR Part 541.
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Impact of New Regulations:
Eliminates 20% Rule (40% for retail employees)
Eliminates differences between federal and State
exemption requirements
Employers can now look to federal decisions for
guidance/persuasive authority
Inadvertent exclusion of exemption under NJ
law regarding Administrative/Inside Sales
Exemption
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“Inside Sales” Exemption:
The DLWD has corrected its error, and on February 21, 2012, the
exemption was fully restored. The regulation now defines
“administrative” employee to include an employee whose: (1)
primary duty is sales; (2) total compensation is comprised of at
least 50% commissions; and (3) total compensation is $400 or
more per week.
Notably, the restored New Jersey “inside sales” exemption differs
from the exemptions available under federal law. As a result,
employers should carefully analyze whether their commissioned
sales employees qualify as exempt under both state and federal
law.
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July 13, 2010 – new law enacted regarding
employers’ obligation to maintain and report
every record regarding wages, benefits and
taxes, including requirement to post and
distribute notice to employees.
July 18, 2011 – NJDOL issues proposed
regulations including a sample notice.
November 4, 2011 – NJDOL issues final
regulations and notice.
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Employers must:
1.
Ensure the notice is posted in
workplace
2.
Provide new hires a written
copy of the notice at the time of hire.
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Legal and Practical Impact of Law:
Need more space to post notices.
Possible NJDOL audits for failing to maintain and
report records and failing to pay employees in
accordance with such laws.
Suspension or revocation of license(s) held by
employers.
Punitive Damages (2x lost wages and benefits) for
discharging or discriminating against employee for
making inquiry or complaint or cooperating in an
investigation.
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New Jersey’s minimum wage rate is $7.25/hour, the same as
the federal standard.
However, in May 2012, the New Jersey Assembly voted to give
the state's minimum wage employees a $1.25-per-hour raise to
$8.50/hour, which would increase their weekly wage by $50 to
$340, for full-time workers.
The 46-33 vote occurred along party lines, with Democrats
supporting the bill and Republicans opposing it. The Senate
has a similar bill pending in its budget committee.
Republican Gov. Chris Christie has voiced skepticism, but
has not taken a position on the measure.
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FMLA Basics.
Intermittent Leave Basics and “Triggers.”
Common Intermittent Leave Challenges.
Strategies for Managing Intermittent Leave.
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The Family and Medical Leave Act (FMLA) of
1993 allows employees to take job-protected
leave for certain family and medical reasons.
It also allows leave in conjunction with the
military service of family members.
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“Eligible” employees may take 12 weeks of
unpaid leave in a 12-month period.
Continuation of health insurance benefits for
the employee during the leave period.
Restoration of the employee to the same or
equivalent position upon timely return from
the leave.
– State Law equivalents (e.g. District of Columbia FMLA).
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An employee must be employed by a covered
employer:
– For at least 12 months (can include prior service);
– For at least 1,250 hours in the 12 months immediately
preceding the leave;
– At a worksite having 50 or more employees within 75 miles
of that worksite.
• Special rules for joint employers.
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The birth of a child and in
order to care for such child.
The placement of a child
with the employee for
adoption or foster care and
to care for the newly placed
child.
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To care for a spouse,
son, daughter, or parent
with a serious health
condition.
Employee’s own serious
health condition which
renders the employee
unable to perform the
functions of his/her job.
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Employees must request or put employer on notice of
need for leave, but need not say “magic words,” such
as “FMLA.”
Situations that may indicate a need for FMLA leave
include:
– Time off due to surgery or hospitalization;
– Any absence due to pregnancy, including morning sickness,
prenatal visits;
– Frequent absences or tardiness due to employee’s or family
member’s health issues;
– Absences due to a family-member’s call-up to active duty or
service-related injury; and
– Any health-related absence lasting more than three calendar days.
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Medical leave need not be taken in a large or continuous
block.
FMLA can be taken intermittently in days, hourly
increments or fractions of hours.
FMLA can also be taken on a “reduced schedule” basis.
Frequent absenteeism for medical reasons can be legally
protected.
Intermittent leave may be taken for a serious health
condition of the employee or for care of a family
member.
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“A central defining theme in the comments involves an
area that may not have been fully anticipated: the
prevalence with which unscheduled intermittent FMLA
leave would be taken in certain workplaces or work
settings by individuals who have chronic health
conditions. This is the single most serious area of
friction between employers and employees seeking to
use FMLA leave.”
Family and Medical Leave Act Regulations: A Report on the Department of Labor’s
Request for Information -- 2007 Update
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Obligations Also May Exist under the Americans with Disabilities
Act (ADA) even if FMLA is Unavailable or Exhausted.
– Under the ADA, leave, medical leave, flexible schedules and parttime work arrangements may be a reasonable accommodation (if
they do not pose undue hardship).
– Use “interactive process” to explore potential accommodations.
– The ADA Amendments Act (ADAAA) dramatically expanded the
ADA’s definition of “disability.” Many temporary conditions will now
trigger accommodation obligations.
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General notice: Poster,
handbook policy.
Specific notice: send
“Eligibility and Notice
of Rights and
Responsibilities” form
within five business
days of learning of the
need for leave.
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Employees must provide medical information to
support ADA or FMLA medical leave within
fifteen calendar days of an employer’s request.
The information that can be requested is strictly
limited. Use the DOL’s forms.
When the information provided is incomplete,
the law provides strict protocols for obtaining
complete, unambiguous medical information.
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Review medical certifications carefully.
– Insist on complete and sufficient medical certifications.
– Request clarification and authentication if necessary.
– Request second or third opinions if necessary.
Send written notice to employee, communicating what
employee must do to obtain FMLA protections, as well
as consequences for failing to timely comply.
Extend time reasonably for employee to return
complete and sufficient medical certifications.
Deny FMLA leave if medical certifications are not
returned without sufficient reason for delay.
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Managers should have
little or no contact with an
employee’s physician’s
office. This should be
handled by HR. All
communications should
be in writing, except in
extraordinary
circumstances.
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Intermittent leave must be medically necessary.
Initial medical certifications should support the medical
necessity of intermittent FMLA leave.
Verify that the anticipated frequency and duration of the
episodes of incapacity also are medically necessary.
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Once appropriate medical certification is
received, the leave must be “designated” as
FMLA leave within five business days.
Failing to properly designate the leave as
FMLA leave can result in the employee taking
more leave than he/she is entitled to.
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Objectives:
– Administer FMLA leave with precision while respecting FMLA
rights.
– Curb potential abuses, BUT
– Do not discourage individuals from exercising FMLA rights.
– All communications and interactions should be professional,
respectful. Avoid hostility, frustration.
– To administer FMLA leave aggressively, we must be error-free in
fulfilling the employer’s FMLA requirements.
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Carefully Review Eligibility—Be sure the
employee:
– Has worked for at least one year (including non-consecutive
periods of employment occurring within the past seven
years);
– Has worked 1250 hours during the previous 12 months, and
– Works at a location where 50 or more employees are
employed within a 75-mile radius.
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Consider retroactive designation:
– Permissible if no harm or injury to employee, or if it
was not employer’s “fault;”
– Employer and employee also can mutually agree to
retroactive designation;
– Employer’s failure to comply with the notice
requirements could support an interference claim.
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Properly record all FMLA leave:
– Ask reasons for leave and record all FMLA leave against
the employee’s 12-week entitlement;
– “Dock” paid leave bank as appropriate;
– “Dock” pay if paid leave is exhausted. During FMLA
leave, partial-day docking is ok for exempt employees.
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Consider shifting employee’s hours:
– Consider whether the employee’s hours might be
shifted to minimize the amount of FMLA intermittent
absences needed.
– This issue should always be approached diplomatically
– an employee should never feel forced, intimidated, or
coerced to take more or less FMLA leave than he/she
needs.
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Consider whether to allow “make up” time:
– Employers need not allow an employee taking
FMLA intermittent leave to "make up" the time if this
does not serve the organization’s needs.
– Treat the employee the same as others.
– If you have allowed employees to make up time in the
past, any change in this practice could be viewed as
retaliatory.
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Usual and Customary Notice Requirements;
Scheduling:
– An employee must comply with the employer’s usual
and customary notice and procedural requirements for
requesting leave, absent unusual circumstances.
– An employee absent for doctor's appointments or other
treatment is required, whenever possible, to schedule
these treatments in a manner so as not to unduly
disrupt the employer's operations.
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Enforce Paid Leave Requirements:
– Employer can place restrictions on use of paid leave,
including notice, certification, increments.
– Employees can be required to comply with these
requirements if they want the benefit of paid leave.
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Transfer to Alternative Position that Better Accommodates Need
for Leave:
– For planned medical treatment only.
– Same hourly pay and benefits (including health benefits)
– The position can have different duties.
– The employee must be restored to his or her original position when
the need for intermittent leave is over.
– An employee cannot be transferred to another position in order to
discourage the employee from taking FMLA or to work a hardship on
the employee.
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Adopt effective call-in procedures:
– Require employees to confirm the reasons they are absent, and
document/memorialize those statements.
– Compare the reasons and anticipated leave frequency/duration with leave
documentation on file.
– Request new certification and/or recertification if intermittent leave
requests are not supported by existing leave certifications.
– It is no longer a best practice not to ask why employees are absent from
work.
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Consider New Technologies:
– Most leave management systems focus on whether leave is
paid or unpaid.
– Consider integrated systems showing whether leave is
protected or unprotected to track FMLA.
– More vendors are offering leave administration using new
technologies.
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Leave under NJ FLA only available for an employee
to care for a covered relation with a serious health
condition or to bond with a newborn or a child
placed with the employee in adoption.
Leave not available for the employee’s own serious
health condition.
Because leave is not available for the employee’s
own serious health condition, the issue of
intermittent leave rarely is raised under NJ FLA.
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However, intermittent and reduced schedule leave is available
under the NJ FLA to employees caring for covered relations with a
serious health condition.
Under NJFLA, employees requesting intermittent leave must take
intermittent leave in increments of at least one workweek within
a consecutive 12 month period. Employees requesting reduced
leave must take such leave in increments of at least one workday
but less than one workweek at a time unless otherwise agreed to
by the employer and the employee. Employees may not take a
reduced leave schedule for a period exceeding 24 consecutive
weeks
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© 2012 Jackson Lewis LLP
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179
concerning those circumstances. www.jacksonlewis.compresentation provides general information
© 2012 Jackson Lewis LLP
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providing any individualized advice concerning particular circumstances. Persons needing advice concerning
180
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