Labor and Employment Update - Spring 2015

NEW JERSEY EMPLOYERS BEWARE:
A “BAN THE BOX” LAW IS NOW IN EFFECT IN THE GARDEN STATE

On March 1, 2015, New Jersey’s Opportunity to Compete Act, aka the “Ban the Box” law, went into effect, restricting employers’ ability to inquire about an applicant’s criminal background during the initial employment application process.  The Act applies to all New Jersey employers with 15 or more employees.  New Jersey is the sixth state to enact such “ban-the-box” legislation, joining Massachusetts, Hawaii, Minnesota, Rhode Island, and Illinois.  Certain municipalities also have enacted “ban-the-box” legislation, including Philadelphia, Baltimore and San Francisco.  

Pursuant to the Act, New Jersey employers are prohibited from making any oral or written inquiry regarding an applicant’s criminal record during the initial employment application process, including any request for such information on the employment application itself. Employers are also prohibited from including any language in job advertisements/postings which states that it will not consider applicants with a criminal background.  

There are certain exceptions to the Act’s prohibitions on criminal record inquiries.  For example, if an applicant voluntarily discloses any information regarding his or her criminal record during the initial application process, the employer may then make inquiry regarding such record at that time.  In addition, employers are not prohibited from requiring an applicant to disclose information about his or her criminal record where: the position sought is in law enforcement, corrections, the judiciary, homeland security or emergency management; a criminal history record background check is required by law, rule or regulation; or the position is designated as part of a program or systematic effort designed predominantly or exclusively to encourage the employment of persons with arrest or conviction records. Finally, once an interview has been conducted and/or a conditional offer of employment has been made to the applicant, the employer may then inquire about the individual’s criminal history.  
Employers should also be careful to conduct a thorough individualized assessment before disqualifying an applicant solely based on his or her criminal record. For example, employers should consider: the nature and gravity of the offense/charge; the nature of the job or position sought; the amount of time that has passed since the offense/charge/completion of sentence; and any rehabilitation efforts.  Furthermore, employers are prohibited from disqualifying an applicant with a criminal record that has been officially expunged or erased through executive pardon.  

While the Act does not provide for a private right of action, and thus applicants/employees cannot file a law suit against an employer for non-compliance, the Act does provide for significant civil penalties which may be assessed by the New Jersey Department of Labor and Workforce Development. Specifically, a first violation results in a fine of $1,000; a second violation results in a fine of $5,000; and each subsequent violation thereafter results in a fine of $10,000.   

Employers in New Jersey (including any entity that conducts business in New Jersey, employs individuals in New Jersey, or receives applications for employment in New Jersey) should review their recruitment and hiring practices to ensure that they are in compliance with the Act.  Specifically, employers should review their employment application forms to ensure that they do not contain any request for information about an applicant’s criminal record, and should review any job postings/advertisements to ensure that they do not contain any notice that applicants with criminal records will not be considered for employment.  Employers should also train all employees who are responsible for recruitment and hiring to ensure that they refrain from making any prohibited inquiries during the initial application process.  Finally, when in doubt over whether their practices and policies are compliant, employers should contact their labor and employment attorney for counseling and assistance with appropriate revisions to such practices and policies to ensure full compliance with the Act.

PHILADELPHIA EMPLOYERS MUST NOW PROVIDE PAID SICK LEAVE

Below is our summary of the new law.  Some initial points are:

• If an employer already provides sufficient paid leave, it will not have to change its polices, however, it must still post the Notice; and
• the law does not apply to those employees covered by a bona fide Collective Bargaining Agreement (i.e. unionized).

On May 13, 2015, the Philadelphia Ordinance titled Promoting Healthy Families and Workplaces went into effect.  Under the Ordinance, employers with at least ten (10) employees who work in Philadelphia for at least 40 hours per year must implement a policy that will provide those employees with a minimum number of paid sick days.  Also, even employers with less than ten (10) employees must provide the minimum number of sick time off, but it need not be paid.  Employers must provide their Philadelphia employees with notice of their rights in an employee handbook and by displaying the poster that can be located at the following website:

http://www.phila.gov/MDO/Documents/Sick%20leave%20flyer%204%2023%2015.pdf

The notice must be in English and in any other language that is the first language of at least 5% of your workforce.

Under the law, “covered employees” accrue one hour of time off for every 40 hours worked in Philadelphia, up to 40 hours (or five days) a year.  Employees who are exempt will be assumed to work 40 hours per week unless their regular work week is less than that, in which case, their regular work week will be used.

A “covered employee” is one who works at least 40 hours in Philadelphia annually, but excludes, among others, employees hired for a term of less than 6 months and seasonal workers (hired for a temporary period to work less than 16 weeks in a year).

Each covered employee is permitted to use their leave time for:

• the employee’s own mental or physical illness, need for a medical diagnosis or treatment, or need for preventive medical care;
• care for a family member with a mental or physical illness, need for medical diagnosis or treatment, or need for preventive medical care; and
• absence necessary due to domestic abuse, sexual assault, or stalking where the employee wishes to obtain medical attention, services from a victim’s service organization, psychological or other counseling, relocation, or legal services, either for himself or herself or a family member. 

Employees can begin to use accrued leave after 90 days of employment and use it as it accrues thereafter.  However, time begins to accrue on the effective date of the law – May 13, 2015 – for individuals employed on that date.  For those employed thereafter, time begins to accrue on the first day of employment.

An employee may request to use sick time either orally or in writing. When possible, the employee must specify the anticipated duration of his or her absence. For absences of more than two days, the employer may ask for documentation to support the reason for the absence from a medical provider, law enforcement official, or another source, depending on the circumstances. The employer cannot require the employee, however, to provide documentation that explains the nature of the employee’s illness or the events underlying the absence.

All unused time carries over to the next year, unless the employer provides at least 40 hours of sick leave at the beginning of the year.  No employee under this law need be permitted to take more than 40 hours of paid sick leave in a year.  

Any employer who provides paid time off (which can include vacation, sick leave, personal days, floating holidays, short term disability benefits, parental leave, or “PTO”) that meets or exceeds the accrual requirements under the Ordinance and that can be used for the same purposes of this law under the same conditions as required by the law, need not provide more paid leave.

The law does not require employers to pay an employee at termination for any unused sick time.  Employers can loan paid sick time before it has been accrued, but is not required to do so.
Employees may use paid sick time in hourly increments or in as small increments as employer uses to account for absences and other time.  

An anti-retaliation provision of the law prohibits employers from taking action against an employee who exercised his or her rights under it.  Violations of the law must be reported to an agency to be designated by the Mayor. Agency reporting and processing is mandatory before instituting a private action.  There is a rebuttable presumption of retaliation if action is taken within 90 days of protected activity.

Possible remedies for violations of the law include, but are not limited to: reinstatement, back pay, benefits lost, the amount of paid leave to which the employee was entitled but was denied, attorneys’ fees, liquidated damages (up to $2,500), and a fine.  A claim for violation of this law may be brought as a class action.

The law also  has record-keeping and specific notice requirements.  Please let us know if we can assist you in any way with respect to this Ordinance, including evaluating your current paid time-off policies to determine if they already comply with the law and/or drafting or revising your policies to ensure that you are in compliance.

By: Charles A. Ercole
cercole@klehr.com

UPDATE ON TELECOMMUTING AS A REASONABLE ACCOMMODATION UNDER THE ADA

Last summer, I wrote an article about a Sixth Circuit panel decision – EEOC v. Ford Motor Co. — in which the court overturned the trial court’s granting of summary judgment on behalf of Ford on whether Ford failed to provide a reasonable accommodation to the plaintiff, Jane Harris, under the Americans with Disabilities Act (“ADA”) when it refused to allow her to telecommute on an as-needed basis to accommodate her Irritable Bowel Syndrome.  In that decision, the Sixth Circuit made it apparent that in-person attendance is not always an essential function of every position and telecommuting, in this day and age, may be a reasonable accommodation.  My “bottom line” guidance, given this decision, was that employers should not blindly apply their legitimate policies to deny accommodation requests but, instead, consider each request on a case-by-case basis and be able to show that granting the request would cause an undue burden to the company and/or that denying the request serves a legitimate business purpose even given the specific circumstances.  That bottom line guidance remains unchanged today.  

However, a supplement to that article is in order.  Specifically,  on September 2, 2014, the Sixth Circuit granted a rehearing en banc in this case and thereby vacated the Sixth Circuit’s panel decision.  On April 10, 2015, the Sixth Circuit affirmed summary judgment for Ford in an 8-5 decision.  In several respects, this decision now can be seen as a blessing to employers.  

First, in answering whether regular and predictable on-site job attendance was an essential function of Harris’s job, the court made broad statements that “as a general rule, . . . with few exceptions, ‘an employee who does not come to work cannot perform any of his job functions, essential or otherwise;’” and “most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.”  To eight Sixth Circuit Judges, this was “common sense.”  Indeed, the court rejected the EEOC’s primarily unsupported position that it is “self-evident” that “technology has advanced” so much that employees can perform “at least some essential functions” at home. 

Second, the court gave more ammunition to employers when it stressed that courts: should not allow employees “to define the essential functions of their positions based solely on their personal viewpoint and experience;” that the ADA is not intended to “second-guess” an employer’s business judgment concerning production standards; and that the ADA does not require employers to relieve an employee of her responsibility to perform an essential function of her position or to lower those production standards.  Third, in rejecting the EEOC’s argument that Ford’s past practice of allowing Harris’s coworkers to telecommute showed that regular attendance was not an essential function of Harris’s position, the court provided more help to employers.  After emphasizing that the EEOC’s argument did not hold water because those other coworkers’ schedules were materially dissimilar, the court found that the EEOC’s position “would cause practical harm to private employers.”  In short, simply because an employer allows one person to telecommute on a limited basis does not mean that the employer must thereafter allow anyone else the right to telecommute on an unlimited basis.  Naturally, if this were the rule, employers would be much more reluctant to grant an accommodation request to any employee for fear it would increase their risk of liability to all others.  

Even though the above is that to which, no doubt, employers will point to defend their decisions to require on-the-job regular attendance, the court’s decision is not without its limitations on this issue.  The court still held that technology could allow an employee to perform the essential functions of some positions.  In this case, the EEOC simply failed to show that this was the case for Harris’s position.  Also, the court stressed that, while it will not allow an employee to define the essential functions of her position, it also should not blindly defer to the employer’s stated judgment.  The employer still must credibly support its position by pointing to evidence of its past words, policies, and practices.  Even though the court found that Ford’s past practices in allowing others to telecommute failed to refute Ford’s contention that on-the-job attendance was essential, it so held based on the fact that those other arrangements were too dissimilar to establish this point.  Thus, this decision leaves open the possibility that a court could reject an employer’s definition of essential functions if the employer has granted accommodations to other employees that can be compared because they are sufficiently similar.  

In sum, as stated above, even though this decision will be seen as more favorable to employers than employees, the take-away remains the same — employers must evaluate all accommodation requests on a case-by-case basis and be able to support a determination that the accommodation request actually would require more of the employer than the ADA requires – such as lowering its production standards or relieving the employee of an essential function of the position.  

By:  Lee D. Moylan
lmoylan@klehr.com