Legal Blogs and Updates

1. DEVELOP A COVID-19 VACCINE MANDATE AND/OR TESTING/FACE COVERING POLICY AND EDUCATE EMPLOYEES.  Employers must understand the legal and practical considerations to implementing a COVID-19 vaccine mandate or, alternatively, a testing/face covering policy to ensure compliance with a myriad of federal and state laws and regulations. Employers with 100 or more employees must also be mindful of OSHA’s Emergency Temporary Standard. Educating supervisory as well as non-supervisory employees is an essential compliance step.
2. FEDERAL CONTRACTORS MUST ENSURE COMPLIANCE WITH SPECIFIC COVID-19 VACCINE MANDATE OBLIGATIONS. On September 9, 2021, President Biden signed Executive Order 14042, entitled “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors,” which mandates that federal contractor and subcontractor employees be fully vaccinated for COVID-19 by January 18, 2022. Federal contractors and subcontractors must comply with all of the requirements of the Executive Order if/when any legal challenges are resolved.
3. IDENTIFY H-1B CAP CANDIDATES TO SUPPLEMENT YOUR WORKFORCE WITH QUALIFED PROFESSIONAL EMPLOYEES. The H-1B program applies to employers seeking to hire nonimmigrant aliens as workers in specialty occupations. A specialty occupation is one that requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent. The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the United States. The H-1B Cap Season (for 2022) requires registration beginning in March 2022. If selected after registration, H-1B petitions must be filed April 1, 2022. If approved (after registration and petition approval), the effective start date is October 1, 2022. It is important to identify current employees in F-1 OPT status, TN status, or pending hires graduating from U.S. institutions on F-1 or J-1 status who are eligible. If you miss the March registration deadline you are not eligible to file again (due to caps and quotas) until March 2023.
4. ASSURE THAT AS A POTENTIAL EMPLOYER YOU ARE ASKING LEGALLY PERMISSIBLE INTERVIEW QUESTIONS. As an employer it is important to keep in mind when designing interview questions—and throughout all of your interactions with job candidates—that your aim is to find a qualified person to fill a position. Employment and civil rights laws protect job-seekers from being excluded because of factors unrelated to their qualifications.  Everyone who will have contact with candidates should understand which areas are appropriate for questioning and discussion.
5. ENSURE YOU ARE PROPERLY PAYING EMPLOYESS. 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 liability under both the New Jersey Wage Theft Act and laws targeting the misclassification of employees as independent contractors. New Jersey employers now face expanded remedies and steeper penalties for failing to properly classify and pay employees. Employers must also be aware of legal issues that arise due to the COVID-19 pandemic, including the pitfalls of remote work for non-exempt employees.
6. RECONSIDER YOUR WORKPLACE POLICIES IN THE WAKE OF THE LEGALIZATION OF MARIJUANA IN NEW JERSEY. Due to the legalization of the use of marijuana, both medical and recreational, under New Jersey law, employers must reconsider policies and procedures regarding the use or possession of marijuana in the workplace, drug testing, and recognizing signs of impairment. Training supervisors to know the requirements of the law is imperative.
7. 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: (1) employ an anti-bullying policy that defines what constitutes bullying (include examples and scenarios); (2) enforce the policy evenly; and (3) require employees to participate in interactive training to educate and inform them on what is and is not acceptable workplace behavior.
8. PREVENT DISCRIMINATION IN THE FORM I-9 AND E-VERIFY PROCESSES. Employers are prohibited from discriminating against individuals based on their citizenship or immigration status, or their national origin, during the hiring, firing, recruiting, reverification of Form I-9 or E-Verify processes. Employers should develop, implement, and enforce nondiscrimination policies and conduct training to ensure that all employees (and their authorized representatives, such as those completing Form I-9 or creating E-Verify cases on their behalf) understand the rules. Employers should consider retaining legal counsel to review the Forms I-9 on file to ensure the company’s compliance and avoid costly fines.
9. REVIEW YOUR TERMINATION PROCESS AND POST-EMPLOYMENT COVENANTS. Ending the employment relationship can be a difficult and stressful process. Employers are well-advised to implement a consistent process that incorporates best practices and minimizes liability. Key steps include documentation, communication, issuance of final paychecks, terminating access to company property and resources, and informing the departing employee of any confidentiality obligations and post-employment restrictive covenants.
10. UPDATE YOUR EMPLOYEE HANDBOOK AND CONDUCT WORKPLACE HARASSMENT PREVENTION TRAINING. An employee handbook should be reviewed from a legal and administrative perspective on an annual basis in order to keep it up-to-date with new and evolving federal and state laws. In addition, employers are well-advised to conduct workplace harassment prevention training in an interactive and engaging manner while utilizing practical examples of workplace conduct, and to reinforce the company’s anti-harassment policy and complaint procedure.

Connell Foley's employment and immigration attorneys can assist your organization in “checking off" its compliance to-do list.