The PWFA is a new federal law that went into effect June 27, 2023. It requires private and public employers with at least 15 employees to provide “reasonable accommodations” to worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” The PWFA applies only to accommodations. Existing federal and state laws make it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth or related medical conditions. The PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. More than 30 states, including New Jersey, New York, and Pennsylvania have laws that provide accommodations for pregnant workers. Moreover, most states, including New Jersey and New York, have some form of workplace breast feeding rights.

Pursuant to the PWFA covered employers cannot:

1. Require an employee to accept an accommodation without a discussion about the accommodation between the worker and employer;
2. Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
3. Require an employee to take leave if another reasonable accommodation can be provided that would let the employee to keep working;
4. Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
5. Interfere with any individual’s rights under the PWFA proceeding.

Reasonable accommodations under the PWFA under the proposed rules may include: permitting more frequent bathroom breaks or allowing pregnant workers to drink water at their workstations; the ability to sit at a workstation; closer parking; flexible hours; remote work; appropriately sized uniforms and safety apparel; additional break time to use the bathroom, eat and rest; leave to recover from childbirth; and reassignment from activities that are strenuous or involve exposure to compounds or chemicals which are unsafe to for the pregnancy or the fetus.

Employers must not only understand and comply with the PWFA, the following federal laws (and some state and local laws) provide protections for pregnancy, childbirth, or related medical conditions:

1. Title VII (enforced by the EEOC), which protects an employee from discrimination based on pregnancy, childbirth, or related medical conditions; and requires covered employers to treat a worker affected by pregnancy, childbirth, or related medical conditions the same as other workers similar in their ability or inability to work;
2. The Americans With Disabilities Act (enforced by the EEOC), which protects an employee from discrimination based on disability; and requires covered employers to provide reasonable accommodations to a person with a disability if the reasonable accommodation would not cause an undue hardship for the employer. While pregnancy is not a disability under the ADA, some pregnancy-related conditions may be disabilities under the law.
3. The Family and Medical Leave Act of 1993 (enforced by the U.S. Department of Labor), which provides covered employees with unpaid, job-protected leave for certain family and medical reasons;
4. The PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers Act) (enforced by the U.S. Department of Labor), which broadens workplace protections for employees to express breast milk at work.

Employers need to stay abreast of the current federal, state and local laws to ensure compliance. The employment group at Stark & Stark can help your company stay abreast of the existing and new laws which can affect your business.

The post The U.S. Equal Employment Opportunity Commission (EEOC) on Aug. 7 Announced a Proposal for Implementing the Pregnancy Workers Fairness Act (PWFA) appeared first on Stark & Stark, PC.

The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave. FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

• For the birth and care of the newborn child of an employee;
• For placement with the employee of a child for adoption or foster care;
• To care for an immediate family member (i.e., spouse, child, or parent) with a serious health condition; or
• To take medical leave when the employee cannot work because of a serious health condition.

Employees are eligible for leave if they have worked for their employer for at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. Whether an employee has worked the minimum 1,250 hours of service is determined according to FLSA principles for determining compensable hours or work.

A May 30, 2023, opinion letter from the U.S. Department of Labor (DOL) clarifies how employers should calculate leave under FMLA when it’s taken during a week that includes a holiday. The holiday does not count against an employee’s FMLA entitlement if the employee works part of that week. So, for example, if an employer gives its employees Thursday and Friday off for Thanksgiving, and the employee worked on Monday but took FMLA beginning on Wednesday of that week, then the Thanksgiving holiday that week would not count towards the leave. If, on the other hand, the employee went out on FMLA on November 17th, then they would not be given credit for the Thanksgiving holiday because they did not work the week of the holiday.

Calculating FMLA and applying it correctly can be extremely tricky. There are significant legal ramifications if it is miscalculated. Hence, it is extremely important for employers to understand and apply all of the rules carefully. The employment group at Stark & Stark may help with this important endeavor.

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May 11, 2023, marks the end of the COVID-19 pandemic public health emergency (“PHE”)—the beginning of a significant phase in the pandemic response in the U.S., as well as the ending of a series of benefits enabled by the emergency.

The end of the PHE means a number of provisions will end, including mandates that health insurance plans fully cover COVID-19 testing without employee cost-sharing. May 11 also will mark the end of the COVID-19 vaccine mandates for federal employees, federal contractors and some health care workers.

There are significant implications for employers regarding the end of PHE. Employers will need to make decisions regarding COVID-19 vaccine and testing coverage, as well as other issues.

For example, the PHE required health insurance plans to cover COVD-19 testing without employee cost sharing. That has now changed. Medical plans and employers are no longer required to pay for COVID-19 tests. Hence, employers will need to decide whether or not they will pay for these tests after May 11, 2023.

Furthermore, the requirement that Federal Employees and contractors be vaccinated for COVID-19 has also ended. Although, that creates individual decisions for employers, they have more to be concerned about because there is no longer the federal requirements in place. Hence, employers probably should be extremely more careful in requiring that their employees be vaccinated after May 11^th.

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On April 18, 2023, the United States Supreme Court entertained oral arguments regarding an extremely important case that will provide employers with rules they should follow for granting workers religious accommodations. The High Court considered whether to maintain or revise the standard established by Trans World Airlines v. Hardison, 432 U,S. 63 (1977). In Hardison, the Supreme Court held that the standard for assessing whether accommodating a religious employee’s request is an “undue hardship” is whether it would require the employer “to bear more than a de minimis cost.” In a footnote in that decision, the High Court suggested that an employer need not incur substantial costs to accommodate an employee seeking a religious exception.

The facts of the case the Court considered are simple and straight forward. Plaintiff, Gerald Groff, a former United States postal worker, sued his employer for failing to accommodate his religious practice of not working on Sundays in observance of his religious beliefs. Although the United States Postal Services not deliver mail on Sundays, it does deliver packages for Amazon on Sunday.

The trial court held that exempting Groff from Sunday deliveries caused undue hardship because it negatively impacted Groff’s co-workers, who had to fill in for him. It may also require the USPS to violate a collectively bargained agreement. The 3^rd U.S. Circuit Court of Appeals agreed and ruled that the accommodation constituted an undue hardship because it disrupted workflow and diminished employee morale.

The issue in the Groff case is the definition of “undue hardship.”

It’s unclear when the High Court will issue a ruling in the Groff case. Stark & Stark will monitor the docket for this important decision.

In the meantime, employers should have religious accommodation request forms and policies. I recommend, at least for now, a more conservative approach because the current conservative make up of the High Court seems more inclined to expand the protections based upon expression of religion. Those policies will likely need to be revisited after the Groff decision is announced in the next few months.

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If your company has employees, it is almost certain that at some point your company will have to address a sexual harassment claim. There are steps your company should immediately take to limit its liability and protect your employees from unlawful discrimination.

Let’s begin this discussion with a quick overview of how the complaining employee’s legal counsel will likely try to assert that your company violated state or federal anti-discrimination laws. Generally, there are two basis for liability. First, the suing employee will assert that the alleged harasser is a supervisor or a member of your company’s “upper management.” Second, the employee will assert that your company failed to exercise due care with respect to sexual harassment in the workplace.

Courts recognize the implementation and enforcement of an effective anti-harassment policy may limit your company’s liability. Hence, I recommend you immediately implement the following policies and procedures to limit your company’s potential liability:

Harassment, Discrimination, and Retaliation Prevention Policy

Develop and implement a harassment, discrimination, and retaliation prevention policy that:

• Is in writing and readily available to all employees.
  1. A copy of the written policy should be given to all employees at the inception of their employment.
  2. The written policies and procedures should be placed on each employee’s computer for quick reference. The employees should be made aware that the employee manual was placed on your employees’ computers. I recommend a yearly email reminding them of the same.
  3. Each employee should acknowledge in writing that they received a copy of your company’s well-prepared policies and procedures.
• Lists all current protected categories covered under the applicable state and federal anti-discrimination acts;
• Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the anti-discrimination acts;
• Creates a complaint process to ensure that complaints receive:
  1. An employer’s designation of confidentiality, to the extent possible;
  2. A timely response;
  3. Impartial and timely investigations by qualified personnel;
  4. Documentation and tracking for reasonable progress;
  5. Appropriate options for remedial actions and resolutions; and
  6. Timely closures.
• Provides a complaint mechanism that does not require an employee to complain directly to their immediate supervisor, including, but not limited to, the following:
  1. Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or another supervisor; and/or;
  2. A complaint hotline; and/or;
  3. Access to an ombudsperson; and/or;
  4. Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) and your state equivalent as additional avenues for employees to lodge complaints.
• Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally.
• Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
• States that the employer will keep confidentiality to the extent possible but does not indicate that the investigation will be completely confidential.
• Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
• Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation

Post Anti-Discrimination Posters

• Posters should be conspicuously displayed so they can be easily seen and read by all employees and job applicants. The text has to be large and legible enough to be easily read when posted.
• Posters should be posted in each location where your company has employees – warehouses, stores, branches, offices, etc.
• Check state, local, and federal requirements to ensure that your company is posting in accordance with the applicable laws.

Provide Training for both Supervisors and Employees

• Training should start at the inception of employment and should be followed up yearly.
• The training should be conducted by an attorney, Human Resources Professional, or Harassment Prevention Consultant.
• The yearly training must, at a minimum, include the following:
  1. The definitions of unlawful sexual harassment, unlawful discrimination, and other forms of unlawful workplace discrimination.
  2. The types of conduct that constitute harassment.
  3. Harassment prevention of lesbian, gay, bisexual, and transgender (LGBT) employees—as well as those who are perceived as LGBT.
  4. Prevention of abusive conduct.
  5. Available remedies for victims of harassment via civil actions and the potential liability for employers and individuals.
  6. Harassment prevention strategies.
  7. Make clear who can bring complaints.
     1. Complaint procedures are not limited to employees who have allegedly experienced harassment. Please stress that employees who witness inappropriate conduct can and, in many cases, must also file reports.
  8. Supervisor’s personal obligation to report any harassment, discrimination or retaliation immediately on becoming aware.
  9. Practical illustrative examples of harassment (real cases or hypotheticals) using role plays, case studies, group discussions, or other methods.
  10. An explanation of limited confidentiality during the harassment complaint and investigation process.
  11. Resources for victims (such as to whom they should report harassment).
  12. Appropriate remedial steps to correct harassing behavior, including the employer’s obligation to investigate harassment effectively.
  13. What a supervisor should do if accused of harassment.
  14. Essential elements of an anti-harassment policy include the supervisor’s role in the complaint procedure (provide the supervisor with a copy of the company’s harassment prevention policy and obtain acknowledgment that they have received and read the policy).
• Create and retain the following records relating to the training:
  1. Date(s) of training.
  2. Names of attendees.
  3. Names of trainers or training providers.
  4. Types of training (e.g., classroom, webinar, e-learning).
  5. Sign-in sheet(s)
  6. Copies of all written training materials (e.g., company policies and procedures, handouts, exercises, quizzes).
  7. Copies of all recorded training materials (e.g., videos, webinars).
  8. Copies of all written questions received and all written responses or guidance provided during any webinar or e-learning.
  9. Copies of any certificates provided (certificate of completion or certificate of attendance).

Have Effective Complaint Procedures and Take Strong Corrective Actions

Your company’s complaint procedure must be effective. First, employees must be instructed to report any allegations of workplace discrimination. Second, they should be given several options to report the same. Third, employees must be reassured that their complaints will be taken seriously, they will not be retaliated against for complaining, and that, to the extent possible, their complaints will be dealt with discretely and with confidentiality.

Once a complaint is filed, it is recommended that a neutral party conduct an investigation. After that investigation is completed, it is important to take prompt and proportionate corrective action to ensure that the alleged discrimination ends

The post Steps Your Company Should Immediately Take to Protect It from a Sexual Harassment Claim appeared first on Stark & Stark.

On February 6, 2023, New Jersey Gov. Phil Murphy signed the Temporary Workers’ Bill of Rights.

The law’s “equal-pay-equal-benefit” provision requires that temporary workers be paid the same average compensation rate and benefits (or cash equivalent) that is paid to permanent employees.

The law will have significant implications for New Jersey employers and staffing agencies that utilize or place temporary workers. It requires that temporary workers be paid at least the same average compensation rate and equivalent benefits as the third-party client’s permanent employees performing similar tasks requiring equal skill, effort, and responsibility.

Employers with multiple benefit plans will need to determine which category of permanent employees is most analogous to a particular temporary worker’s position in order to determine which benefits package/corresponding value the temporary worker should be offered. Hence, the law is likely to result in logistical and record-keeping issues for staffing agencies and employers who utilize the services of temporary employees.

To ensure compliance, staffing agencies will be required to register with the New Jersey Department of Labor and Workforce Development (DOL), and third-party employers will be barred from utilizing temporary workers through the use of an unregistered staffing agency. The Division of Consumer Affairs (DCA) will oversee enhanced certification requirements for temporary help service firms. Thus, employers who utilize staffing agencies to meet their temporary employee staffing needs will need to ensure that the staffing companies they hire comply with the law.

The law also calls for enforcement actions to fall under the DOL’s purview.

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The National Labor Relations Board (“NLRB”) has returned to its pre-2020 standard restricting confidentiality and non-disparagement clauses in departing employees’ severance agreements.

Generally speaking, a severance agreement is a contract voluntarily entered into between the former employer and employee after the termination of the employment relationship. They can be beneficial to both the employer and employee because the employee receives additional compensation, often in exchange for a release (protecting the employer from future litigation) and other non-monetary benefits to the employer.

In a recent decision, the NLRB found that a former employer violated the National Labor Relations Act by including provisions in a severance agreement which prohibited the employees from disparaging their employer and disclosing the terms of the severance agreement.

This is a dramatic shift in the law. Employers will need to ensure that severance agreements are narrowly drafted, so as not to prohibit the former employee’s ability to participate in Board charges and investigations. Likewise, confidentiality provisions should be avoided.

Although this decision will limit employers ability to keep their agreements confidential and limit disparaging statements to other, there are still significant benefits to their use. Stark & Stark’s Employment Group may help employers protect themselves through the use of a well-written, severance agreement which complies with this important change in the law along with existing state and federal laws.

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