Hot Topics in Labor & Employment Law 2010. The material provided herein is for informational purposes only and is not intended as legal advice or counsel. Please help yourself to food and drinks Please let us know if the room temperature is too hot or cold
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Hot Topics in Labor & Employment Law Legal Updates and Changes in the Law on Age Discrimination
Grants employers an exemption for their 6.2% Social Security payroll contribution for every new “qualified employee” hired after February 3, 2010 and before January 1, 2011
Allows an additional income tax credit that is equal to 6.2% of paid wages for every new qualified employee retained for 52 consecutive weeks – up to $1000 – to be taken on the employer’s 2011 income tax
Has not been employed for more than 40 hours during the preceding 60-day period
Is not being employed to replace another employee except one who quit voluntarily or was fired for cause (including downsizing)
Is not “related” to the employer under the rules set forth in the U.S. Tax Code
Section 4207 of the Patient Protection and Affordable Care Act of 2010
Employers must provide a “reasonable break time” for an employee to express breast milk for her nursing child
Employer must provide a place other than a bathroom that is “shielded from view and free from intrusion from coworkers and the public”
Employers with fewer than 50 employees are exempt if providing the break or the place to express breast milk would impose an “undue hardship” on the employer
Does not preempt state laws relating to breastfeeding in the workplace if the state law is more protective of its employees
The Wage and Hour Division of the Department of Labor will be eliminating the issuance of Opinion Letters
The Wage and Hour Division will now apparently issue an “Administrator’s Interpretation” which relies upon the Wage and Hour Division’s generalized understanding of the duties that commonly accompany a position in an industry, and lacks any fact-specific inquiry
Any member of a volunteer fire company, duly incorporated first aid, rescue or ambulance squad, or any member of any county or municipal volunteer office of emergency management may not be terminated or suspended for failing to report to work due to their service as a volunteer during a state of emergency declared by the president or governor, or their response to an emergency alarm
The employee must provide to the employer:
Employers are not expected to pay employees who are absent from work while responding to these emergency situations, but the employees may charge this time as vacation or sick time
The law does not apply to employees who are deemed “essential employees”
Changes on the Horizon
The adverse effect of a facially neutral employment practice that nonetheless discriminates against persons because of their race, sex, national origin, age, disability, etc. and that is not justified by business necessity.
Police officers alleged that the City of Jackson violated the Age Discrimination in Employment Act (ADEA) by giving older officers less generous salary increases than the increases given to younger officers
In its defense, the City offered a reasonable basis for its pay plan – the city was trying to make its police department more competitive by matching the salaries of surrounding communities
U.S. Supreme Court held:
To invoke RFOA defense, employment practice must be:
Practice must be objectively reasonable when viewed by a “prudent employer”
The employment practice of intentionally dealing with persons differently because of their race, sex, national origin, age, disability, etc.
Gross began working at FBL in 1987 and was promoted to the position of Claims Administration Director
In 2003, when Gross was 54, FBL reassigned him to a lower position and gave most of his previous job responsibilities to another employee who was then in her early forties
Gross sued FBL claiming that FBL demoted him due to his age in violation of the ADEA
U.S. Supreme Court held:
“Nothing herein contained shall be construed to bar an employer from refusing to accept for employment or to promote any person over seventy years of age . . . .”
NJ Law Against Discrimination
Trial Court: Sided with the College
Appellate Division: Sided with Nini
Supreme Court: Agreed with the Appellate Division and sided with Nini
Do Your Unpaid Employees Satisfy Wage & Hour Requirements?
“I definitely say my choice in grad school is definitely heightened by the economy. The idea that I can still continue my education provides me with a nice security blanket.”
Lauren Apter – UC Berkley College Senior, as reported in the New York Times
Mortgage loan officers:
Primary duty of loan officers is sales, which is not related to the "management or general business operations” of either the employer or the employer's customers.
Mortgage loan officers' primary duty is making sales and, therefore, mortgage loan officers perform the production work of their employers.
You can round forward when clocking in, and round backwards when clocking out.
Minor differences between the clock records and the 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.
“We now have an enforcement policy that requires employers who round off time worked in any increment to round it off in favor of the employee.”
The Deputy Commissioner of the NJDOL directed his staff to prepare a notice of proposal for new rules within the New Jersey Administrative Code which would adopt the federal rounding standard. Of course, change takes time.
Stengart v. Loving Care Agency, 201 N.J. 300 (2010)
The extent to which an employee can expect privacy and confidentiality in personal e-mails with her attorney which she accessed through her personal, password protected e-mail account on a company-issued laptop.
Loving Care had a written electronic communication policy but:
Your company policy should:
2 Unique Cases
A recent case expanded the potential bases for liability between two businesses. J.T.’s Tire Service v. United Rentals North America, Inc., 411 N.J. Super. 236 (App. Div. 2010).
How can employers address problems that might occur in the field?
1. Qualifying Exigency Leave
2. Military Caregiver Leave
This remains the same as for other FMLA leave:
Note re: Deployment: Thus, the spouse of a regular Army soldier deployed to Iraq would be entitled to take FMLA leave while that soldier has rest and recuperation in the U.S. However, the spouse of a regular Army soldier assigned in the U.S. would not be entitled to FMLA leave during the soldier’s rest and recuperation unless another FMLA reason applies.
Medical marijuana not yet available in the State
Governor Christie has asked Legislature for a January or July 2011 start date.