Subscribe to Our FeedEmployer's Creative Method to Reduce Overtime Pay Upheld by Federal Court
January 9, 2013
Posted by Ari Burd
Under the Fair Labor Standards Act (“FLSA”), non-exempt employees eligible to receive overtime are entitled to receive one and a half times their regular rate of pay for each hour worked over 40 hours during any work week. On an oil rig maintained by Redland Energy Services (“Redland”), employees were receiving over 40 hours of overtime per week. By simply changing when the workweek was deemed to start and stop, Redland managed to cut this overtime pay obligation in half. Although Redland’s change to the start and end date of the workweek was challenged by the employees, the change was ultimately upheld by the Eighth Circuit Court of Appeals in the matter, Abshire, et al., v. Redland Energy Services, LLC, 695 F.3d 792 (2012).
The plaintiffs in this matter worked as operators of oil rigs maintained by Redland. They regularly worked 12 hour shifts from Tuesday to Monday seven days straight (84 hours per week), followed by a week off. Although the workweek had initially been calculated using the same Tuesday to Monday schedule regularly worked by the oil rig employees, Redland changed the workweek designation to Sunday to Saturday, the same designation used for all other employees at Redland. As a result, the oil rig employees now worked no more than 60 hours in any designated workweek. The Eight Circuit Court of Appeals upheld a challenge to Redland’s workweek change, noting that so long as the change to the workweek is “intended to be permanent, and it is implemented in accordance with the FLSA, the employer’s reasons for adopting the change are irrelevant.” Id. at 796.
While most employers will not find themselves regularly paying their employees overtime to the extent found in the Redland matter, the costs of overtime can certainly add up for any business. By being creative and reviewing and revising all workplace policies, such as how the workweek is scheduled or how the work week and pay period are defined, it is often possible for an employer to limit significant overtime exposure. If you have questions or would like to discuss your business policies, please feel free to contact us to discuss your situation.
Restriction of Firearms in the Workplace
January 2, 2013
Posted by Ari Burd
In light of recent mass-shootings, questions have been raised regarding firearms in the workplace. New Jersey already has some of the strictest firearms laws in the United States. Presently it is illegal to own or possess ammunition magazines in New Jersey that hold more than 15 rounds. Concealed carry permits are issued in extremely limited situations and only when the individual can show a “justifiable need.” Unlike several other states, employers in New Jersey are free to create policies preventing employees from bringing firearms onto the employer’s place of business. This limitation can extend to areas such as parking lots, thereby preventing employees from keeping weapons in their car. For more information or for workplace policies on the subject, please contact our office.
Michigan Becomes the 24th Right to Work State. Could New Jersey Be Next?
December 28, 2012
Posted by admin
In the short-term, it appears that the chance of New Jersey passing right to work legislation is not good. Given Senate President Sweeney’s recent response to the same question, “this will never, ever happen in New Jersey as long as I am Senate President,” coupled with the fact that both legislative chambers in New Jersey are controlled by Democrats, it does not seem likely that New Jersey will become a right to work state, at least not any time soon. However, in light of Michigan’s recent passage of right to work legislation, we should never say never.
On Tuesday December 11, 2012, Michigan became the 24th right to work state when it passed legislation prohibiting work place rules that make membership in a union a condition of employment. Similar to right to work legislation in other states, the payment of union dues for workers in Michigan will be voluntary even though the union may negotiate on the workers behalf. The law applies equally to public and non-public workers, with the exception of police and firefighters, who are not governed by the law.
Although union representation has been dwindling across states for many years now, it is still surprising to see Michigan, which many considered the birthplace of the labor union movement and a highly industrial state, pass right to work legislation. While Michigan’s new right to work laws will not be effective until spring 2013, the spotlight has already shifted to other highly unionized states, such as New Jersey, New York and Pennsylvania, to see if they follow suit.
For now, lawmakers, employers, unions, employees and New Jerseyians should pay close attention to what impact Michigan’s new legislation will have on creating jobs and spurring economic growth. While New Jersey may not join Michigan and the twenty-three other right to work states in the near future, Michigan may present a compelling argument for change should the legislation prove successful.
Posting By Employer Regarding Pending Legal Action Can Violate CEPA
November 15, 2012
Posted by Ari Burd
In Flecker v Statue Cruises, LLC, the plaintiff filed an action against his employer alleging violations of the New Jersey Wage and Hour Law. In response, the employer posted a memorandum directed to all employees informing them of the suit. The memo specifically identified plaintiff as the party responsible for filing the suit and advised employees that as a result, no employees would be scheduled for overtime. Immediately thereafter, plaintiff was confronted, threatened and harassed by coworkers. Eventually the harassment became so great that plaintiff resigned. Plaintiff then filed a claim of retaliation under the Conscientious Employee Protection Act (CEPA), New Jersey’s whistle-blower statute.
The trial court entered summary judgment in favor of the employer and the case was dismissed. However, on November 14, 2012, the Appellate Division reversed this ruling and reinstated the case, noting there was sufficient evidence for a reasonable jury to conclude that the employer knew or should have known its memorandum would incite the plaintiff’s co-workers and that such action could ultimately force the plaintiff to resign. This is yet another example to show that CEPA is far-reaching, and protects workers from a wide assortment of retaliatory conduct far greater than mere discharge, suspension or demotion.
Compliance With Wage & Hour Laws In The Wake Of Hurricane Sandy
November 6, 2012
Posted by admin
Whether a NJ employer forced to shut down its operations as a result of Hurricane Sandy, or related event, is required to pay wages for the period of closure depends, in large part, on the classification of the affected employee under federal and state wage and hour laws. In other words, is the employee an hourly, “non-exempt” employee or an “exempt” employee, typically defined as an executive, administrative, and/or professional employee? Once the employee’s “exemption” status is determined, the following general guidelines will probably apply.
Non-Exempt Employees: Generally, the Fair Labor Standards Act (“FLSA”) does not require employers who are unable to provide work to employees due to a natural disaster to pay non-exempt employees for hours the employees would have otherwise worked. Whether the closure spans a single day or an entire week, an employer typically is not required to pay wages for actual time not worked.
Exempt Employees: Under the FLSA, if an employer’s closure due to inclement weather lasts less than a week, the employer must generally pay an exempt employee’s full salary for the week. When the business shuts down for a full week, and the exempt employee does not perform any work during that week, the employer usually has no obligation to pay the employee for that week. Typically, if an exempt employee has accrued, unused vacation or paid time off, the employer may reduce the time off available to the employee. However, such a determination should not be made before consulting any applicable employee handbook or other policies.
To possibly ease the burden of an employer’s business decisions following Hurricane Sandy, affected employees may qualify for some form of state unemployment insurance or federal disaster unemployment assistance. The State of New Jersey Department of Labor and Workforce Development may be a helpful resource for employees and employers alike to consult.
While this blog entry is designed to frame some of the basic wage and hour issues facing NJ employers following shutdowns related to Hurricane Sandy, we understand that there may be a number of other complex employment and other issues that may arise for employees in the wake of the storm. If you have questions regarding your responsibilities in this area or other employment related issues, please do not hesitate to contact us.
The Social Media Battle Lines Are Now Drawn In New Jersey Between An Employer’s Right To Know And An Employee’s Right To Privacy
September 26, 2012
Posted by admin
As it now stands, Illinois and Maryland are the only states that have passed legislation prohibiting employers from requiring applicants and existing employees to disclose their social media passwords. Several other states such as California have similar legislation in progress.
On September 20, 2012, New Jersey moved closer in joining the social media legislative bandwagon when The Senate Labor Committee voted 4-0-1 in favor of the “Facebook Bill.” The Senate Labor Committee approved two bills, S1915 and S1916, which are collectively referred to as the “Facebook Bills.” S1915 prohibits employers from requiring that applicants and employees divulge their social media passwords and S1916 prohibits colleges from doing the same for college applicants and students. Read more
Point: White v. Starbucks: Doing One’s Job is Not Whistle-Blowing
May 14, 2012
Posted by Jay S. Becker
The New Jersey Appellate Division recently affirmed the dismissal of a claim of retaliation under the Conscientious Employee Protection Act1 (CEPA), finding that the plaintiff did not engage in any protected activity when she reported violations of law to her supervisor and managers as part of her job responsibilities. The decision reaffirms the manifest and logical principle that doing one’s job does not amount to whistle-blowing pursuant to CEPA.
To read the full article, click here.
Federal Appeals Court Finds Pre-Eligible Discussion of Post-Eligible Family and Medical Leave Act (“FMLA”) Leave is Protected Activity under the FMLA
May 11, 2012
Posted by admin
Earlier this year, in a case of first impression, the 11th Circuit Court of Appeals held that the Family and Medical Leave Act (“FMLA”) “protects a pre-eligibility request for post-eligibility leave.” In other words, an employee who gives notice, before becoming eligible for leave, of intent to take FMLA leave for a qualifying reason once becoming eligible, can state a state a cause of action under the FMLA. Pereda v. Brookdale Senior Living Communities, Inc., D.C. Docket No. 0:10-cv-60773-FAM, 11th Circuit Court of Appeals (January 10, 2012).
Kathryn Pereda, a former employee at Brookdale’s senior living facility in Pompano Beach, sued the company claiming interference and retaliation under the FMLA. Pereda began working for the facility on October 5, 2008. In June 2009, Pereda notified her employer that she was pregnant and would request FMLA leave after the birth of her child anticipated on or about November 30, 2009. Thus, at the time Pereda put in her request to take FMLA leave, she had not yet been employed for 12 months, an FMLA eligibility requirement. In September 2009, just shy of her 1-year anniversary of employment with the company, Pereda’s employment was terminated. Read more
The New Jersey Appellate Court Expands Discrimination Protection to Employees Outside the Protected Class
April 23, 2012
Posted by admin
On April 18, 2012 the Appellate Division expanded the interpretation of the New Jersey Law Against Discrimination, the state’s anti-discrimination law, by ruling that a man who endured anti-Semitic slurs can sue his employer for religious discrimination even though he is not Jewish. Cowher v. Carson & Roberts, A-4014-10T1 (N.J. App. Div., Apr. 18, 2012)
Myron Cowher, a former truck driver for Carson & Roberts Site Construction & Engineering Inc., sued the company and three supervisors after he allegedly was the target of anti-Semitic remarks for more than a year, upon the mistaken belief that he was Jewish. The comments included remarks that, “only a Jew would argue over his hours” and “if you were a German, we would burn you in the oven.”
The appeals court considered only whether he has standing to bring the claim, being that he is not Jewish. The suit had already been dismissed by the trial court on that same basis. The Appellate Division reversed the dismissal, holding that if Cowher can prove the discrimination “would not have occurred but for the perception that he was Jewish,” his claim can proceed.
The “proper question” in this case, the court said, is what effect the supervisors’ allegedly derogatory comments would have on “a reasonable Jew,” rather than on a person of Cowher’s actual background. This decision is significant because it expands the scope of who can bring a discrimination claim under the New Jersey Law Against Discrimination, by allowing a person to pursue a claim for discrimination based upon a protected characteristic not actually possessed by the person bringing the claim.
This decision shows just how broadly courts in New Jersey are willing to interpret the state anti-discrimination laws. The burden on employers to regulate conduct among co-workers is now higher than ever before.
Update: April 30, 2012 NLRB Notice Posting Deadline Postponed Pending Appellate Court Review
April 18, 2012
Posted by admin
In light of the South Carolina District Court’s April 13, 2012 decision holding that the NLRB lacks authority to promulgate its notice-posting rule, the U.S. Court of Appeals for the DC Circuit has granted an emergency motion to enjoin enforcement of the rule pending resolution of appellate issues. The Court of Appeals entered an Order on April 17, 2012 setting a briefing schedule, and directing the scheduling of oral argument for an appropriate date in September 2012. A copy of the April 17, 2012 Order issued by the Court of Appeals for the DC Circuit may be found at http://documents.nam.org/is/US_Court_NAM_NLRB_Order.pdf. For employers, this means the requirement to post the NLRB’s proposed notice of employee rights under the NLRA by April 30, 2012 is no longer in effect. The notice-posting rule will not become effective, if at all, until the legal issues surrounding its enforcement are adjudicated before the Court of Appeals.
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