1. ENSURE YOUR PAY SCALES PASS MUSTER UNDER THE NEW EQUAL PAY ACT. The Diane B. Allen Equal Pay Act (which went into effect on July 1, 2018) gives New Jersey employees the broadest equal pay protection in the country. The Act prohibits employers from paying less compensation to an employee in a protected class than the amount paid to other employees who perform “substantially similar work.” The Act makes it easier for employees in protected classes (including sex, race, national origin and disability) to pursue disparate pay claims. Employers are encouraged to conduct a self-audit with the assistance of legal counsel to identify and eliminate pay inequities.
2. ENSURE COMPLIANCE WITH THE NEW JERSEY PAID SICK LEAVE LAW. The New Jersey Paid Sick Leave Law (which went into effect on October 29, 2018) is the most onerous paid sick law in the country and imposes many additional and challenging obligations upon virtually all New Jersey employers, including job-protected paid leave for all employees (full-time, part-time, temporary, and seasonal). Has your company taken the necessary steps to comply with the law, including updating its sick leave (or paid time off) policy and practices? Employers are well-advised to conduct training for supervisors on the reasons for which employees can take leave per the Law, as well as the Law’s stringent anti-retaliation provisions.
3. UPDATE YOUR EMPLOYEE HANDBOOK. Employee handbooks should be updated often — preferably on a yearly basis — in order to stay up-to-date with changing laws. Take the time to make sure your company’s handbook addresses the New Jersey Paid Sick Leave Law, includes a social media policy, addresses lactation accommodation, and provides reasonable accommodations for pregnant workers. Your handbook is a key preventative tool that needs an annual check-up.
4. ENSURE COMPLIANCE WITH NEW JERSEY’S SMOKE-FREE AIR ACT. Determine whether your business constitutes an “indoor public place” or “workplace” as defined by New Jersey’s Smoke Free Air Act. If you are an affected entity, then you may want to start off 2019 by ensuring you have the proper signs, with proper font sizes, posted in the appropriate places. Also, the Act puts the onus on a covered-employer to “order any person smoking” in violation of the Act, to comply with the Act. The Act has many nuances, and medical marijuana is considered smoking under the Act. Employers should establish a non-smoking policy to address the requirements of the Act.
5. ENSURE EMPLOYMENT AUTHORIZATION VERIFICATION PRACTICES ARE COMPLIANT. ICE-HSI is taking President Trump’s “Buy American, Hire American” Executive Order very seriously and is increasing its workplace enforcement inspections. Protect your company by creating or updating internal policies regarding I‐9 compliance and recordkeeping. Limit I‐9 processing to one or more managers who are designated as “captains,” and ensure those individuals are trained. Perform an I‐9 self‐audit. You don’t want to wait until a government audit to learn if your business is I‐9 compliant; take the time to make sure you’re ready.
6. TRAIN MANAGERS ON THE LEGAL RAMIFICATIONS OF SOCIAL MEDIA IN THE WORKPLACE. Employers must ensure that managers are aware of the legal pitfalls related to their use (and employees’ use) of social media relative to: avoiding workplace harassment, conducting background checks, protecting confidential business information, respecting employees’ privacy rights, and ensuring compliance with employees’ rights to engage in “protected concerted activity.” Managers must know the dos and don’ts of social media activity, and how to avoid creating liability for the employer and potential personal liability.
7. ENSURE YOU ARE PROPERLY PAYING EMPLOYEES. This is an optimal time to audit your payroll practices to limit the risk of payroll violations. Government agencies and employees continue to aggressively pursue overtime violations, making it imperative that employers review employee compensation structure and job duties (plus educational degrees for professionals) to ensure correct “exempt” or “non-exempt” employee classifications.
8. ENSURE THE FAIR CREDIT REPORTING ACT REQUIREMENTS ARE MET. Federal law requires that your company provide all applicants with a written disclosure statement and a separate written authorization prior to conducting any background check through a third-party consumer reporting agency. Now is the time to conduct a self-audit to determine if your company has in place, and is utilizing, legally compliant disclosure and authorization forms as part of the background check process to avoid costly legal exposure.
9. CONDUCT A FOREIGN WORKFORCE AUDIT. Do any of your employees have work visas or authorizations that are expiring? Given the tenuousness state of the Deferred Action for Childhood Arrivals (“DACA”) program, discontinuance of temporary protected status (“TPS”) for certain countries and threatened rescission of the H-4 work authorization program (for dependents of H-1B workers), a significant number of employees with work authorizations may soon lose them. Finding out which employees are at risk will allow your company time to pursue alternative approaches to retaining key employees. For instance, some of these employees may be eligible for H or O visas, but anticipation and planning is necessary to avoid any lapse in authorization. It is also critical to know how many years each of your H or L visa employees are allowed in their current status. Connell Foley offers materials and guidance to undertake a foreign workforce audit.
10. CONDUCT HARASSMENT PREVENTION TRAINING FOR EMPLOYEES AND SUPERVISORS. The Equal Employment Opportunity Commission emphasized that live, interactive training by a professional who is engaging, has a command of the subject matter, and utilizes practical examples of workplace conduct is the preferred method of providing workplace harassment prevention training. Every employer in New York State is required to provide employees with sexual harassment prevention training. Also, the New Jersey Supreme Court has highlighted the importance of conducting workplace harassment prevention training. Training can serve as an important defense in a lawsuit brought by an employee. Put yourself in the best position possible to defend your company while promoting a positive work environment.
Please feel free to contact us if we can assist your organization in "checking off" its compliance to-do items.
Michael Shadiack is the Chair of Connell Foley’s Labor and Employment Practice Group. Representing a broad spectrum of employers and management personnel in the private and public sectors, he provides litigation defense and ...
Marianne Tolomeo, a partner in Connell Foley’s Labor and Employment Group, practices primarily in the areas of employment law and commercial litigation.
For more than two decades, Marianne has represented clients ranging from ...
Lauren Iannaccone’s broad range of experience in complex commercial transactions allows her to respond to significant emergent matters and assist clients efficiently and effectively. Lauren’s litigation experience ...