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Employment Issues Trends and Decisions

Tuesday, October 30, 2018

Quick FAQs: Overtime Laws and Exempt Employees


Most employees must be paid overtime if they work over 40 hours per work week based on a federal law called the Fair Labor Standards Act (FLSA). Most states, including New Jersey, Pennsylvania, and New York have their own version of the FLSA, often providing benefits greater than federal law.

Under the FLSA, overtime should be no less than one and one-half times the employee’s regular rate of pay. However, some employees are exempt from the Fair Labor Standards Act. These employees often do not receive overtime pay, but an employer can choose to pay for hours worked over a threshold amount if they so desire.


Read more . . .


Thursday, September 27, 2018

Developing A Disciplinary Policy as an Employer


Very few employers like to discipline employees for misconduct or poor performance. However, it may be necessary to do so to prompt workers to fulfill their job duties appropriately or behave in a specific way. Establishing a disciplinary policy long before you need it will clarify your expectations of employees and also help you minimize legal liability for wrongful termination or similar claims. 

Identifying Common Problems with Employees

If you already have employees, establishing  a disciplinary policy may be a response to unacceptable conduct you are currently experiencing. While your policy can be designed to  specifically target those unwanted behaviors, common problems your disciplinary policy should address include at the very least:

  • Non-discrimination and improper treatment of other employees, customers, vendors, and visitors 

  • Attendance (including absences, tardiness, leaving early, or taking breaks too frequently)

  • Harassment, including but not limited to sexual harassment

  • Confidentiality and protection of company confidential information

  • Performance expectations

  • Theft

  • Safety

  • Training Requirements

  • Harassment

  • Equipment and material usage and waste

  • Alcohol or substance use on company property or on company business

  • Violence or threatening words or actions

Consider specific  actions that “cross the line” in each of these areas.


Read more . . .


Monday, December 11, 2017

Caution: Sexual Harassment in the Workplace -

Given the many high profile cases in the media over the past several months, it is crucial for any business to understand its responsibility to prevent sexual harassment in the workplace. However, most people do not know what constitutes sexual harassment. Some assume it applies only to behavior between people of the opposite sex. However, this is not true...sexual harassment can be found in same sex behavior. 

Generally, sexual harassment is deemed to be a form of sex discrimination under Title VII of the Civil Rights of 1964 (Title VII), and most states have far stricter laws in place designed to prevent harassment.

There are two types of sexual harassment: quid pro quo ("this for that") and hostile work environment.

  • Quid pro quo - This occurs when an employer, most often a person in a position of authority, demands sexual favors in exchange for a job or any other benefit of employment including promotions, bonuses and raises. An employee who is fired, disciplined, or given a poor performance evaluation, for refusing a sexual advance may be the victim of this form of harassment.
  • Hostile work environment - This involves an employee being subjected to a pattern of unwelcome conduct, such as comments or visual displays, that is severe or pervasive enough to create a distressing work environment and alter the conditions of employment.

Under federal law and most (but not all) state statutes, In order to have grounds for a claim the employee must demonstrate that he or she believed the conduct was offensive or hostile. It is also necessary to show that a reasonable person in the same position would believe the conduct was hostile. Finally, the employee must prove that he or she complained to a supervisor or someone else in a position of authority and that the employer failed to take action to stop the harassment.

Before filing a federal lawsuit, the employee must file a complaint with the Equal Employment Opportunity Commission (EEOC). This is referred to as "exhausting administrative remedies" and is required if the employee wants to avail him or herself of protections afforded by federal law. If the matter is not resolved at the EEOC level, a "right to sue" letter is issued and a civil lawsuit can then be filed.

State laws may differ. For example, in New Jersey under the Law Against Discrimination (LAD), an employee can file a sexual harassment lawsuit in state court without first filing a complaint with the New Jersey Division on Civil Rights. Attorneys often recommend doing so as the remedies available under the NJ LAD may be better than under federal law or the employer may not be covered by federal law because it has too few employees.

In short, all employees have a right to a workplace that is free from sexual harassment. It is crucial for any business to establish policies to prevent such conduct, and institute procedures to address any employee concerns. Ultimately sexual harassment is bad for business because it can create a toxic work environment that adversely impacts employee morale. Moreover, a lawsuit can not only lead to a costly settlement, but also damage a company's reputation.

If you believe you are the victim of sexual harassment or any form of discrimination on the basis of your gender, gender identity, or sexual orientation, do not wait and hope "it will go away" on its own. Contact an employment law firm, such as The Law Office of Randall P. Brett, to discuss your situation and what can be done.

If you are an employer, do not tolerate any form of harassment, whether sexual or not (including bullying). Contact an experienced employment law firm, such as The Law Office of Randall P. Brett, to review your policies and procedures and provide guidance regarding permissible supervisor behavior and management responsibilities. 


Tuesday, March 28, 2017

Are employees owed overtime for checking and answering email after hours?


Technology is a double-edged sword. It allows us to work remotely and to have greater flexibility as to where and when we work, but the freedom it affords can also be a burden. All the work that is being done outside of work hours is creating a compliance problem for many businesses.


Read more . . .


Monday, February 27, 2017

Employment Discrimination Laws in a Nutshell -

There are a variety of state and federal laws that make it illegal for employers to discriminate based on certain characteristics when making decisions about hiring, terminating, promoting, demoting or compensating employees, or any other terms and conditions of employment. Employers are also barred from retaliating against employees who file a discrimination-related complaint or engage in other protected activities. While the laws vary from state to state, all employers have an obligation to adhere to the following federal laws.

Title VII of the Civil Rights Act of 1964

This law prohibits discrimination in the workplace based on race, color, national origin, religion and gender. Title VII also established the Equal Employment Opportunity Commission (EEOC), the government agency that is tasked with investigating employment discrimination claims.  Before an employment discrimination lawsuit under federal law can be brought, it is necessary to file a claim with the EEOC. Title VII applies to employers with 15 or more employees.

Age Discrimination in Employment Act (ADEA)

The ADEA prohibits employers with 20 or more employees from discriminating against individuals who are 40 years or older and their age cannot be used as a factor in any employment decision.

The American with Disabilities Act (ADA)

The ADA prohibits employers with 15 or more employees from discriminating or harassing disabled employees and requires employers to make reasonable accommodations that will enable a qualified disabled worker to complete his or her job functions.  

The Pregnancy Discrimination Act (PDA)

The PDA prohibits discrimination based on pregnancy regarding any aspect of employment in businesses with 15 or more employees. Women who are temporarily unable to perform their jobs due to pregnancy must be treated similarly to other temporarily disabled workers. The ADA may also protect a woman who suffers from a pregnancy related medical condition.

State and Local Laws

Most states and many municipalities have laws governing the treatment of employees. For example, The New Jersey Law Against Discrimination ("NJLAD") NJSA 10:5-1 prohibits employment discrimination based on race, creed, color, national origin, ancestry, age, marital status, familial status, sex or sexual orientation, atypical cellular or blood trait, generic information, or service in the armed forces.  This law is considered "remedial legislation" and can provide relief beyond what federal law may permit.

An example of protection under municipal law is the New York City Human Rights Law, Title 8 of the Administrative Code of the City of New York. This law prohibits discrimination in New York City and provides relief in excess of what is required under New York State law. Individuals are protected from discrimination in many areas, based on a number of protected classes.

The Bottom Line

In sum, employers are prohibited from discriminating against employees and potential job candidates because of race, religion, sex, age, disability, pregnancy or national origin. Not only can violations lead to financial penalties, a discrimination lawsuit can damage a business' reputation. By engaging the services of an experienced employment law attorney, you can establish policies and procedures to ensure that your business is in compliance with these laws.

The Law Office of Randall P. Brett assists employers to avoid claims of discrimination and provide strong legal representation in court if needed. The firm also works with employees who have suffered discrimination to achieve just outcomes for their claims.

 


Tuesday, November 15, 2016

Oral Contracts - Are They Binding? -

There is quote attributed to Samuel Goldwyn, a famous film producer in the early years of Hollywood, that goes "A verbal contract isn't worth the paper it's written on". While this is actually a misquote of what was really said, nevertheless it conveys a widespread misconception that verbal contracts are unenforceable.  However, a contract made orally with another party, without embodying the particular terms in a signed writing, can still be valid and binding. Even so, any disagreement concerning the deal may pose multiple problems for both parties. 

In order for the court to give a verbal contract legal effect, the terms of the deal will have to be demonstrated.


Read more . . .


Tuesday, October 18, 2016

Can Non-Compete Agreements Be Enforced?

Hiring a new employee or training an existing staff member in new skills is a costly endeavor. Employers want to make sure that the money is well spent and the employee will not use the skills or knowledge of the employer's business to compete. Employers try to restrict employees from going to competitor and employees, of course, do not want to be limited to working for only one company especially if a better offer comes along or things do not work out with the employer. Employees also make an investment in their skills and capabilities, and may bring to the employer decades of knowledge of their industry, their profession, or customers. Each side has valuable rights and interests that need to be balanced. What often results is that the employer requires employees to sign a document that restricts who the employee can work for if he/she leaves the current employer.

While permitted in most states (California being a notable exception) Courts typically disfavor “covenants not to compete” or “non-compete agreements.”  Therefore, the terms and provisions of these contracts must not be overly restrictive of the employee.  In order for a non-compete to be upheld, the document must “be reasonable in scope, geography, and time.”  It cannot last for years on end, or prevent the employee from working anywhere in the entire state or states. Likewise, an employer cannot prohibit an employee from working in a large variety of industries, especially if the restriction includes industries wholly unrelated to the employer’s line of work. 

Two other elements are analyzed by a court to determine the validity of a non-compete agreement:  (1) there must be mutual consideration between both the employer and employee at the moment the contract is signed and (2) the non-competition agreement must protect “a legitimate business interest of the employer.”  Preventing a former employee from working for an employer’s business rival, or preventing disclosure of trade secrets or personally identifiable information of important clientele, are typically considered justifiable business interests.

Non-compete agreements are generally implemented to protect a company’s most important assets:  its reputation and its confidential information.  However, the terms protecting these assets cannot be overly broad or vague.  Thus, in evaluating the “reasonableness” of a non-competition agreement, the court will conduct a “balancing test.”  This is a comparison of the employer’s need to protect its “business interests” with the “burden that enforcement of the agreement would place on the employee.” 

The validity of non-compete agreements is decided on a case-by-case basis. The court will consider circumstances such as the length of time certain information will be kept confidential, and the company’s reasons for limiting the employee's job search to a geographical area. If the court finds that the agreement serves a valid interest and does not exceed the range necessary to protect that interest, the entire agreement may be upheld. The agreement cannot prohibit the employee from earning a living or be against the public's interest (for example, it is in the public's interest to permit people to hire any attorney they wish to, so non-compete agreements are generally prohibited in law firms).

The court also has the option of doing away with overly intrusive terms in a non-compete, rather than invalidating the agreement entirely. In cases in which a non-compete is perceived by the court as punitive, unduly restricting an employee from obtaining employment, the agreement will not be upheld.  A licensed attorney who specializes in employment law will be able to gauge the likelihood that a particular non-compete agreement will be enforceable.

The Law Office of Randall P. Brett assists employers and employees in navigating this important but difficult area of the law. Give us a call if you have questions about non-compete agreements or any other matter.


Monday, November 9, 2015

An Overview of the Family Medical Leave Act (FMLA) --

Frequently, I receive questions from my clients regarding whether an employee is permitted to take time off for a medical condition, for the birth of a child, or to care for a family member.  I would like to give a definitive answer but, like most areas in the law, it all depends on the facts. Specifically, whether an employee is entitled to leave, how much, and must the employer pay for the leave time and hold the employee's job open for his or her return, depends on whether the employee is qualified for, and the employer covered by, a specific federal or state law. This piece will attempt to provide some information but as I have stated in previous postings, you should consult with your own attorney for guidance in your own situation.

The Family Medical Leave Act is a federal law that allows employees to take significant time off from work to take care of a loved one with an illness, medical problem or condition. The law does not require an employer to pay the employee for the time missed, but allows the employer to substitute accrued paid vacation/sick time for unpaid leave taken during the FMLA, meaning that the employee’s leave cannot be extended beyond the statutory period by using his or her vacation time. The FMLA prohibits employers from enforcing any negative consequences against the employee for exercising his or her rights under the FMLA. These would include termination, cutting back on hours, reducing pay, or diminishing the employee’s title or responsibilities.

The FMLA applies to businesses with more than 50 employees. To qualify, an employee must have worked for the employer for at least one year and must have worked at least 1250 hours in that year. The law allows the employee to take up to 12 non-consecutive weeks of unpaid leave a year to care for a spouse, parent or child who has a serious medical condition. There is special consideration given to family members caring for ill military service members. The parents, spouses, and children of these individuals are permitted to take up to 26 weeks off each year to care for their loved one. 

The most common use of the law is to allow an employee to take time off work after a child is born, even though most would not call pregnancy a “serious medical condition.” This is commonly referred to as maternity leave. Although it is not customarily exercised, fathers have an equal right to take time off to bond with their children after birth. The FMLA also allows new parents to take time off work immediately after an adoption. Some people use the Family Medical Leave Act to care for family members dealing with mental health issues, including dementia, addiction, or schizophrenia. The law covers any medical condition which require an overnight stay in the hospital, chronic conditions that require treatment at least twice a year, and conditions that incapacitate the affected person for more than three consecutive days. 

Many states (New Jersey is one example) have their own versions of the FMLA. Some cover the same categories of leave as the FMLA but others do not. For example, New Jersey's Family Leave Act (FLA) does not cover leave for one's own illness or medical condition. However, a qualified employee working for a covered employer is entitled to take the greater of the benefits granted either by the FMLA or their state law. In some instances, the employee can enjoy the benefits of BOTH leaves, which would give the employee additional time off than would be permitted by either the FMLA or the state law by itself.


Wednesday, June 10, 2015

At-will Employment: Does it Apply to You?

It may seem unfair, but an employer can fire an “at-will” employee at any time, without good cause – or even without any cause at all. It is a bitter pill, and one that many American workers must swallow. Under the law, you are generally deemed to be employed at-will, unless you can prove otherwise.

Workers who are employed at-will can be fired for no reason, but they cannot be fired for a bad reason. Some reasons are illegal under federal or state law, exceptions to the general doctrine of at-will employment. For example, you cannot be fired for complaining about discrimination, harassment, or safety violations in the workplace, or for complaining about illegal activity. The majority of employers are subject to anti-discrimination laws and cannot fire you based on certain characteristics, such as gender, race or religion. Similarly, you cannot be fired because you have exercised a legal right, such as taking time off for family and medical leave, military service, jury duty, or voting in an election.

Many employers take steps to ensure that the at-will nature of the employment is clearly established and agreed-to by all parties. This is typically spelled out in employment applications and contracts, employee policy and procedure manuals, and may be described as “at-will employment” or simply contain statements that you can be terminated at any time “without cause” or “for any reason.”

Still others have implemented written policies that protect their employees against being fired without good cause, and specify the reasons for which an employee can be terminated. If your employer has adopted such a policy, you are entitled to those protections.  Likewise, if you have signed an employment contract guaranteeing you job security, your employment is not at-will and you are entitled to the protections contained in the written agreement.

Should you sign an at-will employment agreement? Courts have generally held that an employee can be terminated, or not hired, for refusing or failing to sign an at-will employment agreement. While you are not technically required to sign the agreement, if you want to get hired or keep your job, it may be in your best interest to sign the agreement.

Nevertheless, if the at-will agreement contradicts what your employer previously promised you, you may want to think twice about signing on the dotted line. If you relied on the employer’s promises of job security when you accepted the position, you should consult an attorney before signing an at-will agreement. Courts will presume the signed at-will agreement controls your employment, regardless of any prior statements to the contrary.

Just because you sign the at-will agreement does not mean your employer will use it to fire you without cause. There is little to be gained in terminating a productive employee, and most employers will attempt to work with you to resolve any issues. Ultimately, the best way to avoid the perils of at-will employment is to be an outstanding employee. Delivering exceptional job performance is good for the company’s bottom line – and your own.  


Monday, February 16, 2015

Employee Handbooks: Important Provisions

An employee handbook is an instrument that is widely used by employers to communicate their expectations and policies to employees.  There are many reasons to develop and distribute an employee handbook.  These written documents enable employers to clearly outline what is expected from employees and what employees can expect from the employer.  In the event of a dispute with an employee or when a claim is made with a government agency, the handbook can be invaluable in protecting employer’s position. 

When drafting an employee handbook, certain information should be included. This includes:

Wages, Salaries and Other Compensation

An employee handbook should cover how and when employees will be paid.  It should also note how time worked it to be recorded, what taxes will be taken out and explain overtime policies.

Schedules

This document should also cover daily schedules.  It should note hours to be worked, breaks, attendance, lateness, how to request time off and whether employees are entitled to paid time off and when.

Benefits

An employee handbook can also be used to give employees information about benefits. It should cover what benefits are offered and how employees can qualify for them.

Employee Conduct

This manual should also be used to let your employees know how they are expected to act while at work.  It should also detail the dress code, if one exists.  You might also want to include guidelines for behavior in common situations.

Disciplinary Matters

An employee handbook should always include a section on employee discipline in the event that an employee should violate company rules or guidelines.  This section should detail any disciplinary system that is in place, and, if one is not in place, explain that matters will be handled on a case by case basis.

Safety Concerns

Your employee handbook should also cover how to respond to any and all foreseeable safety concerns.  These might include safety issues relating to work conditions, employee disputes and inclement weather.

Employment Discrimination/ Sexual Harassment

Employment discrimination and sexual harassment in the workplace are real issues that can cost businesses a great deal of money.  By including your company’s firm stance on these matter and explaining that neither will be tolerated might help you avoid conflicts in the future. Employee handbooks differ greatly depending on business structure, size and even the industry in which it operates. Some manuals are just a few pages whereas others may be dozens.  In order to create a comprehensive employee handbook and ensure maximum protection for your business, you should consult with a business or employment law attorney to advise you on these matters.


Monday, February 9, 2015

Can My Employer Enforce a Covenant Not to Compete?

Many employers require their employees to sign agreements which contain covenants not to compete with the company.  The enforceability of these restrictive provisions varies from state-to-state and depends on a variety of factors. A former employee who violates an enforceable non-compete agreement may be ordered to cease competitive activity and pay damages to the former employer.  In other covenants, the restrictions may be deemed too restrictive and an undue restraint of trade.

A covenant not to compete is a promise by an employee that he or she will not compete with his or her employer for a specified period of time and/or within a particular geographic location. It may be contained within an employment agreement, or may be a separate contract. Agreements which prevent employees from competing with the employer while employed are enforceable in every jurisdiction. However, agreements which affect an employee’s conduct after employment termination are subject to stricter requirements regarding “reasonableness,” and are generally disallowed in some states, such as California which has enacted statutes against such agreements except in very narrow circumstances.

Even in states where such covenants are enforceable, courts generally disfavor them because they are anti-competitive. Nevertheless, such agreements will be enforced if the former employer can demonstrate the following:
 

  • The employee received consideration at the time the agreement was signed;
  • The agreement protects the employers legitimate business interest; and
  • The agreement is reasonable to protect the employer, but not unduly burdensome to the employee who has a right to make a living.

Consideration

Under the principles of contract law, all agreements must be supported by consideration in order to be enforceable. The employee signing the covenant not to compete must receive something of value in exchange for making the promise. If the agreement is signed prior to employment, the employment itself constitutes consideration. If, however, the agreement is signed after employment commences, the employee must receive something else of value in exchange for the agreement to be enforceable.

Legitimate Business Interest

Legitimate business interests can include protecting and preserving confidential information (trade secrets) and customer relationships. Most states recognize an employer’s right to prevent an employee from taking advantage of information acquired or relationships developed as a result of the employment arrangement, in order to later compete against the employer.

Reasonableness

Based on the circumstances, a covenant must be reasonably necessary. If the covenant is overly broad, or unduly burdensome on the employee, the court may refuse to enforce the agreement. Therefore, the covenant must be reasonable in both duration and scope. If a covenant is overly broad, the court may narrow its scope or duration and enforce it accordingly. But if a covenant is so broad that is clearly was designed to prevent lawful competition, as opposed to protecting legitimate business interests, the court may strike down the agreement in its entirety.

To enforce a covenant not to compete, the employer can file a court action seeking an injunction against the employee’s continued violations of the agreement. The company can also seek monetary damages to cover losses resulting from the employee’s breach.


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