Welcome to Morris County & Central NJ SHRM Chapters’ Summer Employment Law Update Presented By:

1. Welcome to Morris County & Central NJ SHRM Chapters’ Summer Employment Law Update Presented By: Sponsored by:

2. Recent Changes to Federal and State Family Leave Laws Presented by: Gregory Alvarez

3. What Issues Will We Address? Family Leave Update • 1/28/08 – The FMLA amended to provide for military family leave • 2/11/08 – The USDOL published its proposed revisions to the FMLA regulations • 5/2/08 – Governor Corzine signed legislation providing for Paid Family Leave

4. THE PROPOSED FMLA REGULATIONS 2/11/08: DOL Issues Proposed FMLA Regulations. Major Areas Addressed by the DOL: • Chronic Conditions And Intermittent Leave • Employer Notice Requirements • Employer Response To Request For Leave • Employee Notice Requirements • Medical Certifications • Return To Work Certifications

5. CHRONIC CONDITIONS AND INTERMITTENT LEAVE • Employees can still take unplanned, unscheduled leave in the smallest increments tracked by their employers • Applies to intermittent leave for employee’s chronic medical conditions (e.g., asthma, migraine headaches) • Concerns of employers acknowledged but, “self-treatment” by employee remains valid • Note: “periodic” visits now required; twice a year is enough

6. EMPLOYER NOTICE OBLIGATIONS • Re: General Notice Obligations, employers have to do more to educate employees on their rights to FMLA leave • If proposed regulations are adopted, employer postings and policies regarding FMLA rights must be reviewed • Employers may distribute or post notice electronically if employees have access. • If no handbook, must be distributed at least once a year • Must translate for non-English speaking workforce

7. EMPLOYER RESPONSE TO LEAVE REQUEST • The DOL proposes to eliminate the WH-381 Form in favor of employers issuing two separate notices • The first notice is referred to as an “Eligibility” notice • The second is referred to as a “Designation” notice • Eligibility notice also advises employees of need to provide medical certification to corroborate that leave is medically necessary • Deadline for notices: increased from two to five business days • “Provisional” designation eliminated in most cases

8. EMPLOYEE OBLIGATIONS • Employees have greater responsibilities too • Simply calling in “sick” without providing more is not enough to obtain FMLA protection • How much more is needed? • When will simply being sick become serious health condition? • Employees must now make a “reasonable effort” to schedule intermittent leave in a manner that minimizes the disruption on an employer’s business • Previously only had to “attempt” to do so

9. MEDICAL CERTIFICATIONS • The DOL proposes to change the certification of health care provider forms • Employers to be provided with additional information to better evaluate an employee’s entitlement to leave • Employers allowed to attach job description or brief description of the essential functions and require H/C/P to confirm employee’s inability to perform • Employers permitted to communicate directly with H/C/Ps to authenticate and clarify • Employers also permitted to follow ADA interactive process if S/H/C also may be disability • Similar information now provided regarding Return-To-Work forms • Existing regulations only allow “simple statement of their ability to return to work”

10. “GROWING” INTO FMLA LEAVE • Many employers allow employees to take leave even if they fall short of the 12 months of service • Can you count leave against their 12 month entitlement if employees reach 12 months of service while on leave? • The DOL has rejected this effort • Employee entitled to their 12 weeks upon becoming FMLA-eligible • Employees with less than 12 months of service receive more leave than eligible employees • Some case law which holds otherwise

11. ATTENDANCE GOALS • Current regulations require employers to pay perfect attendance bonuses to employees who have missed time from work for FMLA-covered reasons • Employers would now be permitted under the Proposed Regulations to disqualify an employee from a bonus or award predicated on the achievement of a goal where the employee fails to achieve that goal as a result of an FMLA absence • While this may appear to be a major shift in the DOL's position, employers ought not to disqualify individuals on FMLA-qualified leave while allowing employees on non-FMLA leaves (such as paid vacation) to receive such awards

12. NEW FMLA ENTITLEMENTS FOR MILITARY SERVICE MEMBERS • Amendments to the FMLA • With limited exception, became effective on January 28, 2008 • Existing FMLA rules apply unless stated otherwise; DOL working on Regulations • Two “new” types of FMLA “leave” • “Qualifying Exigency” leave (12 weeks) • “Servicemember Family” leave (26 weeks)

13. NEW FMLA ENTITLEMENTS FOR MILITARY SERVICE MEMBERS

14. QUALIFYING EXIGENCY LEAVE • The “qualifying exigency” provision not effective until the Secretary of Labor issues final regulations defining “any qualifying exigency” • In the interim, DOL encourages employers to provide this type of leave to qualifying employees • Examples: • To arrange for child care • To see a child off or welcome child home • To attend pre-deployment briefings • To attend family support meetings • To attend reintegration briefings Source: U.S. Representative Jason Altmire’s Press Release on FMLA Amendments dated May 17, 2007

15. “SON” OR “DAUGHTER” • Note: Existing FMLA definition does not work • FMLA Reg §825.113 requires a “son” or “daughter” to be 18 or under or, if over 18, incapable of self-care due to a physical or mental disability • The Amendments do not change the definition of son or daughter but … all servicepersons are over 18 • The anticipated DOL Regulations likely will deal with this issue

16. “NEXT OF KIN” • Means the nearest blood relative of the servicemember • Likely to affect employees who are not the “spouse”, “parent” or “son” or “daughter” of a servicemember • Brothers, sisters, aunts, uncles, grandparents, in loco parentis

17. “NEXT OF KIN” • The DOL seeking soliciting comments on the following questions: • Does each covered servicemember only have one next of kin who is eligible to take FMLA leave? • How do you determine if an employee is the nearest blood relative? • Does it matter if the nearest blood relative of a covered servicemember is unable or unwilling to provide care? • Should a covered servicemember be allowed to designate any blood relative as next of kin for purposes of FMLA leave to care for the servicemember?

18. LINGERING QUESTIONS • Lingering Questions: • Are employees entitled to only one 26 week period of servicemember family leave? • Could the 26 workweek entitlement be calculated per injury of a covered servicemember?

19. COMPLIANCE STRATEGIES • Amend/Supplement FMLA policies • Must comply with FMLA “General” notice policies • Decide whether your company will provide “qualifying exigency” leave pending issuance of DOL Regulations • If so, in what circumstances? • One option – determine on case by case basis reserving total discretion to Company • Train supervisors on when leave is required • Anticipate/prepare for potential lengthy leave situations by cross-training • Develop certifications for confirming entitlement to “qualifying exigency” leave

20. New Jersey Paid Family Leave • May 2, 2008 – Gov. Corzine signs family leave bill that amends the State’s existing temporary disability benefits law (“TDI”) to provide eligible employees up to six weeks of family leave benefits to care for sick family members or a newborn or newly adopted child • January 1, 2009 – employees begin paying tax • July 1, 2009 – employees eligible for benefits

21. New Jersey Paid Family Leave COVERED EMPLOYERS? 1. Any entity or person; 2. Employing one or more individuals; and 3. Who pays the individual(s) at least $1,000 in the current or preceding calendar year.

22. New Jersey Paid Family Leave WHO IS ELIGIBLE? • Employees who work 20 base weeks and earn at least 20 times minimum wage ($143); or • Employees who have earned 1,000 times minimum wage ($7.15) adjusted to the next higher multiple of $100 ($7,200) in calendar year preceding the leave

23. New Jersey Paid Family Leave FAMILY LEAVE BENEFITS A covered individual is eligible for family leave benefits if he or she takes leave from work:   • To provide care for a family member who has a serious health condition; • To be with a child during the first 12 months after the child’s birth if either the individual, or the domestic partner or civil union partner of the individual, is a biological parent of the child; or • During the first 12 months after the placement of the child for adoption.

24. New Jersey Paid Family Leave DEFINITIONS • Family member – child, spouse, domestic partner, civil union partner or parent (not parent-in-law?) • Serious Health Condition – Same definition as under New Jersey Family Leave Act (“NJFLA”) • “To Provide Care” – Same definition as under NJFLA

25. New Jersey Paid Family Leave AMOUNT AND DURATION OF BENEFITS • Two-thirds of weekly salary up to a weekly maximum (currently $524) for up to 6 weeks (after the 8th consecutive day of leave) • $74.85 per day for up to 42 days in a 12 month period for intermittent leave (Why not 30 days?)

26. New Jersey Paid Family Leave EMPLOYEE OBLIGATIONS • 30 days notice if leave is sought to be with a child after the birth or the placement of the child for adoption • Prior notice in a reasonable and practicable manner if the leave is to care for a family member with a serious health condition • Make a reasonable effort to schedule the leave so as not to unduly disrupt the operations of the employer • Submit medical certification

27. New Jersey Paid Family Leave MEDICAL CERTIFICATION An employee must provide a medical certification from the health care provider setting forth: • The date on which the serious health condition commenced; • The probable duration of the condition; • The medical facts regarding the condition; • A statement that the condition warrants the individual providing care; and • An estimate of the amount of time needed to care for the family member

28. New Jersey Paid Family Leave INTERMITTENT LEAVE An employee may receive benefits for intermittent leave if: • The total time does not exceed 12 months; • Provides 15 days’ notice before the first day on which benefits are paid; • Makes a reasonable effort to schedule the leave so as not to unduly disrupt the operations and, if possible, provide a schedule of the leave; and • Submits a medical certification including the medical necessity for the intermittent leave, the duration and the dates of the treatments

29. New Jersey Paid Family Leave OTHER COMPONENTS • Employer may require employee to exhaust up to 2 weeks paid leave (vacation, sick) which reduces 6 week period of benefits.

30. New Jersey Paid Family Leave COST TO EMPLOYEES & RECEIPT OF BENEFITS • January 1, 2009- employees begin paying tax of $24.93 per year or about $0.48 per week (tax rate=0.09% on the portion of wages, subject to TDI) • July 1, 2009- employees eligible for benefits • January 2010- tax increases to $33.24 per year or about $0.64 per week (tax rate=0.12%)

31. New Jersey Paid Family Leave JOB PROTECTED LEAVE? SMALL EMPLOYERS - (Fewer than 50) The failure or refusal to restore an employee to employment following paid family leave will not be a wrongful discharge in violation of a clear mandate of public policy. Furthermore, an employee of such an employer will not have a cause of action against the employer, in tort, or for breach of an implied provision of employment, or under common law, for refusing or failing to restore the employee to employment.

32. New Jersey Paid Family Leave JOB PROTECTED LEAVE? LARGE EMPLOYERS – (50 or more) For employers who are covered under FMLA and the NJFLA (50 or more employees), the Act does not grant an employee any entitlement to employment restoration. However, it does not increase, reduce or modify any entitlement of an employee to return to employment or any right to take action under the FMLA and the NJFLA.

33. Dealing with Employee Access of Child Pornography in the Workplace and Handling Employee Arrests Presented by: David B. Lichtenberg

34. THE CHILD PORN DILEMMA • What do I do if child pornography is discovered in the workplace? • Destroy it? • Is “Big Brother” already watching?

35. THE CHILD PORN DILEMMA • Duty to report child pornography to the authorities? • CPPA – federal law • Doe v. XYC – New Jersey case • How far does the duty go?

36. THE CHILD PORN DILEMMA • Is it Child Pornography or not? • NJ criminal statute • Child = under 16 years of age • “Prohibited sexual act” • Be cognizant of differing and possible broader federal and state law

37. THE CHILD PORN DILEMMA • What if I guess wrong? • NJ criminal statute not forgiving • Mistaken belief is no defense • Even if that belief is reasonable • Possible liability for company • Digitally generated images • Malicious prosecution

38. THE CHILD PORN DILEMMA • How do I investigate the issue? • Have a plan in place/review policies • Confronting the accused • Third party witnesses • Maintaining and reviewing electronic data

39. THE CHILD PORN DILEMMA • Who do I report it to? • Local Police • FBI • Who should issue the report?

40. THE CHILD PORN DILEMMA • Former Employees vs. Current Employees • The “special relationship” is gone • NJ criminal statute revisited • Sarbanes Oxley

41. THE CHILD PORN DILEMMA • Practical Considerations • Review electronic communications policies and preservation protocol • Educate managers • Have a plan in place for investigation • Consider bringing in experts to deal with electronic and criminal issues • Background checks

42. OFF DUTY MISCONDUCT: WHAT TO DO WITH ARRESTED EMPLOYEES? Step 1: Adopt A Policy • Put employees on notice that you have a legitimate concern when employees are arrested - Safety - Integrity - Image • Demonstrate that policy applies to all employees - Must still practice what you preach • Advise that any decision based on investigation, not arrest

43. WHAT TO DO WITH ARRESTED EMPLOYEES? Step 2: Require Employees To Report If They Are Arrested Or Charged With Crime • Managers should report knowledge of employees’ arrest • Crime – violation, misdemeanor or felony under local, state or federal law

44. WHAT TO DO WITH ARRESTED EMPLOYEES? Step 3: Decide Whether Employees Should Be Suspended Pending Investigation • Does alleged misconduct raise serious concerns about safety of employees/clients? • Would questions about integrity significantly compromise employer or client property? • Would continued access to information or authorization be viewed as negligent? • Do present facts indicate likelihood that employee committee offense? • With or without pay?

45. WHAT TO DO WITH ARRESTED EMPLOYEES? Step 4: Investigate Circumstances Surrounding Arrest/Charges • Review media reports • Obtain police reports • Speak directly with employee - Give full opportunity to explain - Assess employee’s credibility • If you conduct background search, must comply with FCRA/NJ law - Need employee’s consent

46. WHAT TO DO WITH ARRESTED EMPLOYEES? Step 5: Make Decision • Decision based on investigation – not arrest • If likely that employee committed offense charged, decide appropriate discipline • Can consider unavailability due to incarceration • Should revisit decision upon disposition of matter - Put onus on employee to follow up

47. Recent Developments Affecting Federal & State “Whistleblower” Claims Presented by: Richard J. Cino

48. Topics to Be Covered • Significant Whistleblower Protection Statues & Developments • Effective Corporate Governance Program: • Conflicts of Interest • The Audit Committee • Corporate Compliance and Ethics Program

49. The BIG Question: The Impact of Corporate Governance to Address Whistleblower Issues

50. Sarbanes-Oxley Act of 2002 • New Jersey Conscientious Employee Protection Act (“CEPA”)