Legislative Update I: Gender Equity Notice To Be Posted by January 6, 2014

December 19, 2013  |  No Comments  |  by admin  |  Company News

As we reported in the September 2012 issue of the Bertone Piccini LLP Client Alert, New Jersey passed a law, effective November 19, 2012, requiring many employers in the State to post and distribute a notice of their employees’ right to be free from gender-based pay discrimination in the workplace.  This month, the New Jersey Department of Labor and Workforce Development finally released the Notice.  The posting and distribution requirements of the law are triggered by publication in the New Jersey Register which, according to the DOL’s website, will occur on January 6, 2014.

Beginning January 6, 2014, employers in New Jersey which have a total of 50 or more employees (regardless of whether those employees work inside or outside of New Jersey) must conspicuously post the gender equity notice in a place or places accessible to all employees in each of the employer’s workplaces.  If the employer has an internet site or intranet site for exclusive use by its employees and to which all employees have access, posting of the gender equity notice on the internet site or intranet site will satisfy the posting requirement.

For each employee of a covered employer hired on or before January 6, 2014, the employer must provide that employee with a written copy of the gender equity notice no later than February 5, 2014. For those employees hired after January 6, 2014, the covered employer must provide that employee with a written copy of the gender equity notice at the time of the employee’s hiring.

Beginning January 6, 2014, covered employers must annually, on or before December 31 of each year, provide each employee a written copy of the gender equity notice.  Employers must also provide each employee a written copy of the notice upon first request by the employee.

The distribution requirement may be satisfied by any of the following methods:  email; printed material; or through an internet or intranet website, if the site is for the exclusive use of all employees, can be assessed by all employees, and the employer provides notice to the employees of its posting.  The written notice must be accompanied by an acknowledgement that the employee has received the gender equity notice and has read and understands its terms.  The employee must sign the acknowledgement in writing or by means of electronic verification, and the acknowledgement must be returned to the employer within 30 days of its receipt.

The notice must be in English and Spanish and in any other language in which the Department of Labor has made the notice available and which the employer reasonably believes is the first language of a significant number of its workforce.  Presently, the form of notice is only available in English.

The form of notice may be accessed by clicking here.  The DOL’s December 2013 bulletin regarding the new gender equity notice may be accessed by clicking here.

Legislative Update II: Law to Protect Pregnant Employees Advances in NJ Legislature

December 19, 2013  |  No Comments  |  by admin  |  Company News

On December 16, 2013, the New Jersey Assembly Women and Children Committee voted 6-0 to endorse legislation that protects pregnant employees or those who have medical conditions related to pregnancy or childbirth.  A-4486 amends the New Jersey Law Against Discrimination by adding pregnancy as a protected class and by requiring employers to provide reasonable accommodations in the workplace to pregnant women when the employee, based on the advice of her physician, requests the accommodation.  The proposed legislation identifies examples of accommodations, which include bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work.

The bill does not require employers to provide such accommodation if they demonstrate that providing the accommodation would be an undue hardship on its business operations. The proposed legislation lists a number of factors to consider when determining whether an accommodation would impose an undue hardship on an employer’s business, including the number of employees, the number and type of facilities, the size of the budget, the type of the employer’s operations, the nature and cost of the accommodation needed, and the extent to which the accommodation would involve waiver of an essential requirement of a job.

If the legislation were enacted as drafted, the Law Against Discrimination would prohibit employers from in any way penalizing the employee in the terms, conditions, or privileges of employment for requesting or using the accommodation.  In addition, paid or unpaid leave provided to an employee affected by pregnancy, cannot be provided in a less favorable manner than accommodations or leave provided to other employees not affected by pregnancy but similar in their ability or inability to work.  The bill is not intended to otherwise increase or decrease employee rights under law to paid or unpaid leave in connection with the pregnancy.

On November 18, 2013, the New Jersey Senate passed an identical version of A-4486 in a 38-0 vote.

Legislative Update III: Opportunity to Compete Act Advances in Assembly Committee

December 19, 2013  |  No Comments  |  by admin  |  Company News

The Opportunity to Compete Act (Act), on which we reported in the March 2013 Client Alert, has passed one legislative hurdle.  On December 16, 2013, the New Jersey Assembly Labor Committee voted 6-3 to pass the measure, which generally prohibits an employer from asking about a job applicant’s criminal history before a conditional offer of employment is made.

The version of the Act which the Assembly Labor Committee contains some notable modifications of the bill that was originally introduced to the Assembly.  For one, the revised Act applies to employers with 15 or more employees, and not five or more employees as stated in the original bill.  In addition, the substituted bill provides that it is not actionable by private parties.

Attorney Client Privilege Upheld Where Employee Not Authorized to Waive Privilege

October 31, 2013  |  No Comments  |  by admin  |  Company News

A mid-level manager emails an in-house counsel asking for legal advice concerning a letter that manager has drafted.  That same manager then provides a copy of that email and letter to a third party who is investigating possible wrongdoing by the employer.  Although the employer does not object when that email is produced to the third party, the employer refuses to produce the document in a wrongful termination lawsuit brought by another person, claiming it is protected by the attorney client privilege.  Who holds the privilege?  Was it waived?  This was the scenario presented in Hedden v. Kean University, 2013 N.J. Super. LEXIS 156 (N.J. App. Div. Oct. 24, 2013).

At issue in Hedden was whether an email sent from the head women’s basketball coach to the university’s general counsel was protected by the attorney client privilege.  The coach produced that email, in which she requested the general counsel’s review of a fundraising letter, to the NCAA as part of an investigation it was conducting.  The university did not object when that email was produced to the NCAA, but did object when that same email was requested in litigation brought by its former athletic director.  The trial court granted a motion to compel production, finding that even though the purpose of the coach’s email was to solicit legal advice, the coach waived the privilege by submitting it to the NCAA.

In a “for publication” decision issued on October 24, 2013, New Jersey’s Appellate Division reversed.  First, while the court agreed that the coach’s purpose in sending the email was to solicit legal advice from the general counsel, the panel disagreed that the coach was the holder of the privilege.  According to the appellate court, “Simply put, the authority to waive the attorney-client privilege does not belong to each and every employee of the corporation, but rather is held by the organizational client, namely the officers and directors of the organization.”  The appellate court went on to state that “the group of individuals who may waive the privilege on behalf of the organizational client is restricted to those who manage or control its activities.” Finding that the coach did not fit within that category, the appellate court held that the privilege was not the coach’s to waive.

The Appellate Division explained further the circumstances under which an agent can waive the attorney-client privilege that belongs to the corporation:  “[I]t can be waived by the agent only if acting within the scope of her authority and official duties.”  In this case, the university did not direct or approve the coach’s release of the email.  Additionally, the appellate court found that when the coach submitted the email to the NCAA, she (i) was not acting withinthe scope of her employment or official duties but in her own personal interest, through her own counsel, and (ii) did not seek the university’s prior authorization.  The fact that the university did not object at the time of the disclosure or take affirmative steps to try and reverse the coach’s action did not, according to the appellate court, “defeat assertion of the privilege by its true holder.”

One judge on the appellate panel dissented.  That judge was not convinced that the purpose of the coach’s email was to seek legal advice.  That judge also concluded that any privilege that did attach was waived when the university failed to object to its production to the NCAA.

Legislative Update I: New Law Requires Reporting of Newly Hired Employees

October 31, 2013  |  No Comments  |  by admin  |  Company News

The New Jersey Child Support Act (Act) already requires all New Jersey employers to report to the Department of Human Services basic information about employees who are newly hired, rehired, or who returns to work after a separation of employment.  The Act, which requires the submission of such information within 20 days of the hiring, re-hiring, or return to work of the employee (or if transmitted magnetically or electronically, then the period is 15 days), was designed in part to obtain information that would be used to help locate parents who owe child support.  On October 17, 2013, Governor Christie signed into law A-4188/S-2740, which amends the Act to specify that newly hired employees subject to the law include all employees hired by an employer to work in New Jersey who were not previously employed by the employer, or who were previously employed by the employer but have been separated from the prior employment for at least 60 consecutive days.

As amended, the Act now requires, rather than permits, all information currently reported to the Department of Human Services to be shared by that department with state agencies operating employment security and workers’ compensation programs.  The amendment was designed to prevent the improper collection of unemployment benefits by those who have returned to work.

The Act, as amended, takes effect immediately.