Legal Blogs and Updates

1. CONSIDER A TELECOMMUTING POLICY AND OFFSITE WORK LOCATION SAFETY CHECKLIST. Considering the Coronavirus pandemic and the impact it has had on normal business operations, employers may wish to adopt a flexible Telecommuting Policy that complements a phased-in return to the workplace plan. Such a policy can enable employees to work from home because they are in a “high risk” status as identified by the Centers for Disease Control, or to attend to child care needs due to school/place of care closures or virtual learning.  Employers should also consider an Offsite Work Location Safety Checklist that would require the employee to describe the physical location of his/her offsite work location, and to answer specific questions as to the safety of that work location.
2. ENSURE COMPLIANCE WITH THE NEW JERSEY FAMILY LEAVE ACT.  Previously, New Jersey’s Family Leave Act (NJFLA) applied only to employers with 50 or more employees. However, the NJFLA was amended and now applies to employers with 30 or more employees for each working day during each of 20 or more calendar workweeks in the current or prior year. The NJFLA provides employees with a statutory right to 12 weeks of unpaid, job-protected leave and continued medical benefits, to care for a family member including instances when a state of emergency is declared regarding an epidemic or a communicable disease that: (1) requires in-home care or treatment of a child due to closure of the child’s school or place of care by a public official, (2) prompts a public health authority to require certain measures as a result of a communicable disease because the presence of a family member in need of care in the community would jeopardize the health of others, or (3) results in a health care provider or public health authority recommendation that a family member in need of care by the employee voluntarily undergo self-quarantine.  Employers with between 30 to 49 employees must be aware of the applicability of the NJFLA to their workplace and adopt the necessary personnel policies, procedures, and training to ensure compliance with the law.
3. ENGAGE IN A PROACTIVE I-9 AUDIT STRATEGY. The law requires employers to verify the employment eligibility of all employees (not only foreign nationals) by completing and maintaining Forms I-9. The U.S. Immigration and Customs Enforcement agency (ICE) relies heavily on I-9 inspections to find (and fine) employers who do not follow immigration laws regarding employment eligibility verification. The number of businesses subjected to I-9 audits has soared over the last few years, from hundreds to thousands per year. An ICE Notice of Inspection can come at any time and the agency will want to renew/inspect I-9 documentation within three (3) business days. Consider having outside counsel conduct an internal audit of your Forms I-9 to ensure you are in compliance, and so your documents are ready and well organized in the event of an I-9 audit.
4. ENSURE YOU ARE PROPERLY PAYING EMPLOYEES. As agencies and employees continue to aggressively pursue the misclassification of workers and overtime violations, this is an optimal time to audit your payroll practices to minimize your risk of civil and criminal liability under both the New Jersey Wage Theft Act and new laws targeting the misclassification of employees as independent contractors. New Jersey employers now face expanded remedies and increased penalties for failing to properly classify and pay employees.  Employers must also be aware of legal issues that continue to arise due to the COVID-19 pandemic, including implementing furloughs, overtime due to non-exempt employees, and maintaining exempt status of employees classified as exempt under the wage and hour laws. 
5. 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, among other items. Your handbook is a key preventative tool that needs an annual check-up.
6. MAINTAIN COMPLIANCE WITH PAID SICK LEAVE LAWS. New Jersey and New York both require compliance with paid sick leave laws. These Paid Sick Leave Laws are among the most onerous paid sick leave laws in the country and impose many additional and challenging obligations upon virtually all New Jersey and New York employers. The New Jersey law includes job-protected paid leave for all employees (full-time, part-time, temporary and seasonal). The New York law requires employers to provide paid sick and safe leave if they have five or more private sector employees or have less than five employees and income greater than 1M in the prior tax year. Has your company taken the necessary steps to comply with the laws, including updating your sick leave (or paid time off) policy and practices? Employers are well-advised to ensure compliance and conduct training for supervisors on the reasons for which employees can take leave per the laws, as well as other important requirements including the stringent anti-retaliation provisions.
7. INITIATE PERMANENT RESIDENCE PROCESSING FOR ELIGIBLE FOREIGN NATIONAL EMPLOYEES.  With the slowdown of “green card” processing and the current retrogression of Priority Dates, now is the time to consider initiating US Legal Permanent Resident processes for nonimmigrant (H-1B, TN, L-1, J-1, E-1, E-2, E-3, O-1) employees whose employment authorization has a finite end date. Getting these individuals into the queue, establishing the Priority Date, and moving the process along can also be a valuable retention tool for employers seeking to fill high-level positions that require specific, hard-to-find skill sets, and is an excellent employee relations benefit.
8. ENSURE COMPLIANCE WITH THE AMENDED COMPASSIONATE USE MEDICAL CANNABIS ACT. The Jake Honig Compassionate Use Medical Cannabis Act modified New Jersey’s medical marijuana program. Under the law, employers may not take adverse employment action against an employee based solely on an employee’s status as a registered qualifying patient in the medical marijuana program. Further, if the employer has a drug testing policy in place, and an employee or applicant tests positive for cannabis, the employer must follow specific procedures, including providing the employee or applicant with an opportunity to present a legitimate medical explanation for the positive test result. We recommend updating your company’s drug and alcohol policy to conform with these new requirements, and training supervisors to know the requirements of the law.
9. EMPLOY AND ENFORCE ANTI-BULLYING POLICIES AND TRAINING IN THE WORKPLACE. While no New Jersey statute directly addresses bullying in the workplace, there is a potential for actionable claims under other employment statutes. Bullying can be difficult to define, so to avoid ambiguity and prevent potential liability, employers can take three steps: (1) employ an anti-bullying policy that expressly defines what constitutes bullying (include examples and scenarios); (2) enforce the policy evenly; and (3) require employees to participate in interactive training sessions to educate and inform them on what is and is not acceptable workplace behavior.  Ultimately, bullying in the workplace negatively impacts employee morale, results in employee turnover, and has a detrimental effect on the business so it is in the employer’s and its employees’ best interest to prevent it.
10. CONDUCT HARASSMENT PREVENTION TRAINING FOR EMPLOYEES AND SUPERVISORS. The Equal Employment Opportunity Commission emphasizes that 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.

_{This blog post is made available by Connell Foley LLP for educational purposes only as well as to give you general information, and not to provide specific legal advice. This handout does not create an attorney-client relationship between you and Connell Foley LLP, and it should not be used as a substitute for legal advice specific to your organization.}

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