Subscribe to Our FeedDeadline Approaching for Private Employers to Satisfy New Posting Requirement
March 26, 2012
Posted by admin
In an effort to increase employees’ awareness of their rights under the National Labor Relations Act (“NLRA”), the National Labor Relations Board (“NLRB”) issued a final ruling on August 25, 2011 which imposes a new posting requirement for employers subject to the NLRA. Specifically, the rule requires that employers post and maintain in a conspicuous place within the workplace a notice setting forth employee rights under the NLRA, contact information for the Board, and information concerning enforcement procedures. The text of the required notice can be found here.
The NLRA generally applies only to private sector employers. Federal and State government employers, labor organizations (except when acting as employers), and other entities over which the NLRB has been found not to have jurisdiction are not considered “employers” for purposes of the NLRA, and accordingly are excepted from the posting requirement.
Covered private sector employers must post the notice by April 30, 2012. Posters must be at least 11 inches by 17 inches in size, and placed where they can be readily accessed by employees. For employers who communicate with employees through an intranet or internet site, they must also post the notice electronically in a prominent place. This can be achieved by downloading a copy of the poster onto the employer website, or by providing a link to the Board’s web site, where the poster can be found. If the employer chooses to provide a link to the Board’s website, the link must read “Employee Rights under The National Labor Relations Act.”
In addition, where 20 percent or more of an employer’s workforce speaks a language other than English, the notice must be posted in the other language as well. Further, where there are two or more groups of employees who speak different languages and similarly comprise at least 20 percent of the workforce, the employer has the option to either post the notice in each language, or post the notice in the language spoken by the largest group of employees and provide written copies of the appropriate notice to employees in the other language groups.
According to the final rule, failure to post this notice will result in an order directing the employer to cease and desist from unlawful conduct and post the required notice. Thus far, one U.S. district court has upheld the posting requirement itself, but found invalid as a matter of law provisions of the final rule stating that failure to comply may be deemed an unfair labor practice, and result in a tolling of the statute of limitations for filing of an unfair labor practice charge.
Additional challenges to the final rule are pending. In the meantime, employers should plan on posting the required notice in the workplace by April 30. Posters can be obtained at https://www.nlrb.gov/poster.
*The text of the NLRB’s final rule is set forth in Chapter 1, Part 104 of Volume 29 of the Code of Federal Regulations (CFR).
The Social Media Battle Between An Employer's Right To Know, and An Applicant's Right To Privacy.
March 26, 2012
Posted by Jay S. Becker
There has been a lot of discussion lately regarding an employer’s right to know as much as possible about an applicant, as opposed to that applicant’s right to privacy. Should an employer be limited by what is contained on an applicant’s self-serving resume or application, and/or what the applicant decides to share during an interview, or should an employer have a right to learn more about the applicant, by demanding the applicant’s password to his/her social media sites? When does an employer’s right to know versus an applicant’s right to privacy begin and end?
If anyone has been on various social media sites, such as Facebook, LinkedIn, My Space, You Tube and Twitter, you would know that there is a lot of information that one may learn about another. Whether it is one’s taste in music or food, where one likes to vacation, to the sports one likes to play. You may see some very interesting photos. You can learn about one’s family, one’s religious, cultural or political beliefs, as well as one’s age, sexual preference and/or racial makeup. You could learn that the applicant may suffer from some disability, based on the information or photos contained therein. You also may learn the identity of the friends, organizations or other affiliations and connections one may have.
Does an employer have a right to all of this information? Will some or all of this information assist an employer in determining whether the applicant will be a productive member of the workforce and a good hire, or will the disclosure of this information cause one to judge, leading to potential discrimination and other legal claims should the applicant not get hired, based on something that the employer read or saw online?
We all know that an employer has the right to set the terms and conditions of employment, and if an applicant does not like any one of those terms or conditions, the applicant can withdraw his/her candidacy and apply elsewhere. We also know that a job is a privilege, not an entitlement. But does applying for a job, mean that one agrees to waive all rights to privacy?
And if employers are allowed to dive into the private social media lives of applicants, can administrators do the same for students applying for college or graduate school admission? Shouldn’t a school have a right to know what kind of student it may be accepting, other than what appears on a transcript or an SAT score? What about clubs and organizations–can a swim club or book club for that matter, decide who will or will not be a member, based on what was on an applicant’s social media site?
Undoubtedly, this issue will continue to get more and more coverage as the the dispute rages on. There are plenty of legislators across the country tackling the issue as we speak. You have certainly not heard the end of this controversy.
Please reply to this blog with your comment, thought or suggestion on the issue–from both the employer, and the applicant’s point of view.
Tags: Applicant's privacy > Employer's rights
Complimentary Breakfast Seminar: Top Six Emerging Employment Issues of 2012, March 13, 2012
March 1, 2012
Posted by admin
On March 13, 2012 please join Joseph DeBlasio for a complimentary breakfast and event discussing six key employment challenges for 2012.
Keep your company and your employees out of hot water and your workforce engaged. Join a prestigious panel of professionals from employment law, employee benefits and risk management as they share:
- The six key employment challenges of the New Year, including recent case law rulings that will impact employers and their employees, both current and former.
- How to proactively plan for, address and resolve these challenges and be in compliance with state and/or federal law.
- Best practices for financially protecting your company from an employment lawsuit.
- Strategies and trends for engaging your employees, boosting morale and creating a cohesive, harmonious work environment in 2012.
When: Tuesday, March 13, 2012; 8:30 a.m. – 9:00 a.m. registration, breakfast and networking; 9:00 a.m. – 11:30 a.m. seminar
Where: Hilton Woodbridge; 120 Wood Avenue South Iselin, NJ 08830-2709
The event and breakfast are complimentary.
Joseph C. DeBlasio and Kelly D. Gunther Author, "Untangling the Web of Social Media"
January 20, 2012
Posted by admin
Joseph DeBlasio and Kelly Gunther recently published an article, “Untangling the Web of Social Media” for the Winter 2012 issue of In-House Defense Quarterly.
Social media use permeates the workplace now more than ever. Regulating employees’ active presence on social media platforms such as Facebook, Twitter, LinkedIn, and even You Tube is a hot topic for debate due to the many questions and few easy answers. Recently, the National Labor Relations Board (NLRB) thrust the use of social media into the public spotlight. On August 18, 2011, the NLRB Acting General Counsel Lafe E. Solomon issued a memorandum concerning recent social media cases purportedly to provide guidance to employers when addressing and responding to social media activity by employees. Office of the General Counsel, Nat’l Labor Relations Bd., Mem. OM 11-74, Report of the Acting General Counsel Concerning Social Media Cases (Aug. 18, 2011), available at https://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases (last visited Dec. 2, 2011). To keep pace, employers must revisit their social media policies to attempt to walk the fine line between controlling inappropriate employee conduct and unlawfully restricting employees’ rights.
To read the full article, click here.
GHC Alert: New Jersey Issues New Mandatory Workplace Poster
December 1, 2011
Posted by Curtis G. Fox
November 28, 2011 – The New Jersey Department of Labor and Workforce Development (“NJDOL”) issued a new six-page notice that all New Jersey employers must immediately distribute to all newly hired employees and conspicuously post in the workplace. Employers must also distribute the notice to its current employees by no later than December 7, 2011. Failure to comply with the requirement can result in a fine of not more than $1,000 and criminal penalties. The notice, referred to as Poster MW-400, provides information pertaining to an employer’s obligations to maintain records pursuant to the New Jersey Wage Payment Law, Wage and Hour Law, Prevailing Wage Act, Unemployment Compensation Law, Temporary Disability Benefits Law, Family Leave Insurance Benefits Law, Worker’s Compensation Law and the Gross Income Tax Act. Poster MW-400 is available for download from the New Jersey Department of Labor’s Employee Poster Packet webpage:
Download New Jersey Department of Labor’s Employee Poster Packet
If an employer has an internet or intranet site for the exclusive use by its employees, and to which all employees have access, publication of the notice on that site will satisfy the posting requirement. In addition to the posting requirement, employers must distribute a written copy of the notice to all employees by December 7, 2011. Effective immediately, employers must provide a written copy of the notice at the time of any new employee’s hiring. Employers may choose to circulate the notice by e-mail to employees to satisfy the distribution requirement. Importantly, this notice does not eliminate any other posting requirements already in place under state and federal law.
For more information regarding the new workplace poster or for any of your labor and employment questions, please feel free to contact Curtis G. Fox, Esq..
Commissioned Salespersons No Longer Exempt From Overtime Under New Jersey Law?
October 21, 2011
Posted by admin
In an attempt to create more consistency between New Jersey law and federal law, the New Jersey Department of Labor (NJDOL) recently amended its wage and hour regulations to adopt the federal Fair Labor Standards Act’s (FLSA or Act) white collar exemptions from minimum wage and overtime requirements. What was anticipated to be a welcome change for employers has quickly become a source of frustration. The upside is that employers can now rely on one common set of rules in classifying employees for overtime purposes under both federal and New Jersey law. The downside is that the amendments have inadvertently eliminated a key exemption previously available to New Jersey employers; the commissioned salesperson exemption.
The amended New Jersey regulation expressly adopts the federal provisions of 29 CFR Part 541. However, the FLSA exemptions listed in Part 541, known as the “white collar” exemptions, include only the administrative, executive, professional, and outside sales exemptions. Conspicuously absent from Section 541 is the FLSA’s version of the commissioned salesperson exemption, which is set forth separately, in Section 7(i) of the Act.
New Jersey’s regulations previously contained a commissioned salesperson exemption which allowed employers to exempt from overtime any “employee whose primary duty consists of sales activity and who receives at least 50 percent of his or her total compensation from commissions and a total compensation of not less than $400.00 per week.” This exemption has been relied on by countless employers in classifying qualifying sales persons as exempt from overtime. However, because the newly amended regulations do not adopt Section 7(i) of the FLSA, New Jersey law as it currently stands does not recognize any commissioned salesperson exemption from minimum and overtime requirements.
The result: New Jersey employers who have properly classified employees as exempt under the commissioned salesperson exemption in the past must now reconsider these employees’ exempt status. While the omission of Section 7(i) from the amended regulations appears to have been a mistake, New Jersey employers who continue to rely on the commissioned salesperson exemption run the risk of violating New Jersey’s current minimum wage and overtime provisions. For more detailed information concerning these changes, please contact Sarah Somerset at ssomerset@ghclaw.com.
Jay S. Becker Featured Guest on blogtalkradio’s Business Dig Discussing The Importance Of A Social Media Policy
September 22, 2011
Posted by Jay S. Becker
Whether you have one employee or hundreds, in today’s electronic world, you should assume that your employees are using some type of social media in their personal lives, and likely in their professional lives too. Are you? Is your company or organization taking advantage of social media marketing such as Facebook, Twitter, You Tube, LinkedIn or professional blogs? If so, this usage can have legal and other ramifications if you do not have set terms and conditions of using social media in the workplace. Just as you likely have an employee handbook or policy manual containing policies such as paid time off, benefits and codes of conduct, it’s time to implement a social media policy in the workplace as well.
Jay Becker & Ari Burd Author Article, "A Review of the ADAAA Final Regulations"
August 18, 2011
Posted by Jay S. Becker
Although the ADA Amendments Act of 2008 (ADAAA) was enacted on Sept. 25, 2008, and became effective Jan. 1, 2009, the U.S. Equal Employment Opportunity Commission (EEOC) did not issue the final amended regulations to the ADAAA until March 25, 2011. These regulations, which became effective on May 24, 2011, provide guidance to employers regarding the treatment of their disabled employees. The main thrust of these regulations is to shift the focus from whether an individual’s impairment is a disability to whether discrimination is the cause of any adverse employment action.
To read full article, click here.
EMPLOYMENT LAW – SOCIAL MEDIA UPDATE
August 12, 2011
Posted by Ari Burd
The National Labor Relations Board (“NLRB”) recently affirmed the right of an employer to take action against its employees for posting negative comments about the employer on a social media page. While it may seem obvious that an employer would have the right to take action, questions began to arise on the subject after the NLRB filed a complaint against a company for terminating an employee who allegedly violated the company’s social networking policy which prohibited depicting the company “in any way” without the employer’s permission. This month, however, the NLRB has issued three separate opinions in favor of employers who decided to take action following posts by their employees on Facebook. In each case, the employees in question made comments which would not be acceptable in the workplace. The cases are well summarized by Seth Borden in Labor Relations Today: http://www.laborrelationstoday.com/2011/07/articles/nlrb-decisions/nlrb-division-of-advice-provides-additional-guidance-on-social-media-issues/
What does this mean for employers? Employers can now be assured that they are not powerless to take action against employees for postings on Facebook or other social media pages. However, employers should take care to have a clearly defined social media policy before taking such action.
Sarah Somerset Authors Q&A On The New US DOL Smart Phone App
July 21, 2011
Posted by admin
What do employers need to know about the new US DOL smart phone app?
The U.S. Department of Labor (“DOL”) recently launched its first smart phone app, which acts as an electronic time-sheet, allowing employees to track their work hours and pay. Employees can input an hourly rate and hours worked, and the app will calculate the wages due, including overtime. Employees can even send their records to the DOL directly from their phones. Read more
