HR Legalist

HR Legalist

Employment Law Updates
& Best Practices for Employers

What to Expect When Your Employees Are Expecting

Posted in Pregnancy Discrimination, Workplace Policies

Does an employer have to provide a modified work schedule to a pregnant employee with morning sickness or light duty to a pregnant employee with lifting restrictions?The answer depends on who you ask. Most federal courts say no, but the Equal Employment Opportunity Commission (EEOC) says yes. Fortunately for employers, resolution of this issue is on the horizon. On July 1, 2014, the United States Supreme Court agreed to decide the issue during its October 2014 term in Young v. United Parcel Service, Inc. The Supreme Court will decide whether employers that accommodate nonpregnant employees’ work limitations are required to do the same for pregnant employees with similar pregnancy-related limitations under the federal Pregnancy Discrimination Act (PDA). Although the Supreme Court will provide clarification on the issue under federal law, employers should be mindful that several states and cities, including New Jersey, New York City and Philadelphia, have laws which require employers to provide reasonable workplace accommodations to pregnant employees unless such accommodations would pose an undue hardship on the employer’s business. For now, one thing is certain—employers should pay particular attention to this issue because there is a growing trend in laws expanding the rights of pregnant women in the workplace. Continue Reading

State Law Wage & Hour Resource: You’ll Need It!

Posted in Wage & Hour

You thought that figuring out, and staying on top of, the federal Fair Labor Standards Act was tough. Well, don’t forget that you must comply with state wage and hour laws as well. Sure, the FLSA is quite nuanced and complex; but each state may have subtle differences when compared to the FLSA. As an employer, your responsibility is to ensure compliance with the FLSA and the state law of each state where you do business. So, for example, if you think your Information Services Department employee in Pennsylvania is “exempt” from the overtime provisions of the FLSA as a computer employee, think again: Pennsylvania law does not recognize the exemption for computer employees! (Hmm . . . better think of another potential exemption to apply to that employee.) Pennsylvania is not the exception — many states have “interesting” differences from the FLSA. Continue Reading

New Jersey Adopts “Ban the Box” Law

Posted in Hiring, Workplace Policies

On August 11, 2014, New Jersey joined a growing number of “ban the box” states when Governor Chris Christie signed into law the Opportunity to Compete Act. The Act, which goes into effect on March 1, 2015, precludes public and private employers with 15 or more employees from asking about a job applicant’s criminal record until after the first job interview, unless the applicant voluntarily discloses such information. The Act also prohibits employers from mentioning criminal history in any job advertisement. Employers cannot ask about criminal history in any employment application form or process before or during the applicant’s initial interview. Employers should ensure that their employment applications are compliant when the Act becomes effective. Continue Reading

How To Handle Insufficient Medical Documentation in Support of an Employee’s Disability Accommodation Request

Posted in Americans with Disabilities Act, Workplace Policies

Workplace accommodation issues under the Americans with Disabilities Act (ADA) can be tricky to navigate especially if the employee’s supporting medical documentation is insufficient. This often occurs in situations where the medical documentation only lists the medical condition but does not specify how it relates to a requested workplace accommodation or the health care professional does not have the expertise to issue an opinion on the medical condition. An employer may require that the employee provide sufficient supporting medical documentation prior to granting the accommodation request when the disability and need for accommodation are not obvious. However, a recent decision in Gilreath v. Cumberland County Board of Education, Civ. A. No. 11-0627, 2014 U.S. Dist. LEXIS 105904 (E.D.N.C. July 31, 2014), serves as an important reminder to employers that it is incumbent upon the employer to explain why the medical documentation is insufficient and allow the employee an opportunity to provide the missing information in a timely manner. The following guidance provides clarification on the rules surrounding medical documentation in support of disability accommodation requests. Continue Reading

Franchisors Not Lovin’ It: NLRB Announces McDonald’s Named Joint Employer with Franchisees

Posted in Labor Relations

On July 29, 2014, the National Labor Relations Board (NLRB) Office of the General Counsel announced that McDonald’s, USA, LLC will be named as a “joint employer” in at least 43 cases alleging unfair labor practices against its franchisees—a decision that could hold McDonald’s responsible for employment actions taken at thousands of its franchises and could impact all businesses operating under a franchise model. In addition, the ruling could open the door to unionizing the fast-food industry nationwide. Continue Reading

NLRB Rules Bergdorf Shoe Sellers Are Mismatched for Micro-Bargaining Unit

Posted in Labor Relations

In a long-awaited decision, the National Labor Relations Board (NLRB) unanimously held that women’s shoe sales associates from two different departments within Bergdorf Goodman’s New York store could not be combined into a single micro-bargaining unit. Specifically, in Neiman Marcus Group, Inc. d/b/a Bergdorf Goodman, 361 N.L.R.B. No. 11 (July 28, 2014), the NLRB dismissed a union’s petition for a representation election among 35 employees in the Salon shoe department and 11 employees in the Contemporary shoe department because the employees lacked a “community of interest.” The NLRB’s decision hinged on the fact that the boundaries of the petitioned-for unit did not resemble any administrative or operational lines drawn by the employer—the employees were in different departments, had different job classifications and did not report to the same supervisors. The decision highlights some important lessons for retail employers in preventing the certification of interdepartmental micro-bargaining units. Continue Reading

Going Paperless? Legal Guidelines & Tips for a Paperless HR Department

Posted in Workplace Policies

In today’s high-tech business environment, it is commonplace for employers to digitize personnel documents. Maintaining these documents in electronic form has obvious benefits, including ease of accessibility and storage efficiency. Although electronic storage of personnel records is permissible under federal employment laws, employers must be mindful of the statutory rules relating to document retention periods and electronic storage systems to avoid legal pitfalls. If your company is considering implementing a paperless human resources department, read on for legal guidelines and tips to ensure a smooth transition. Continue Reading

Please Nominate HRLegalist for the ABA Journal’s Blawg 100!

Posted in Uncategorized

It’s that time of year again when the American Bar Association (ABA) is seeking nominations to help it decide on the top 100 legal blogs. The ABA is accepting nominations from now until August 8, 2014. Please consider nominating HRLegalist by filling out the form located here. The submission takes less than a minute to complete and we will be eternally grateful for your support! We hope you have enjoyed our posts and look forward to continuing to provide insight into the latest developments and trends in labor and employment law and best practices for employers.

Interviewing Applicants? What Employers Can’t Ask in Interviews

Posted in Hiring

If you are the interviewer, there actually is such a thing as a stupid (and perhaps unlawful) question in an interview. The key to developing appropriate interview questions that are both useful in obtaining relevant information and also legal is to train those involved in the interview process. Participants in the interview process, regardless of whether they are decisionmakers, should fully understand what information should not be solicited during telephone screens or interviews of applicants. Even the most cautious employers, however, may face litigation from a disgruntled applicant who believes that he or she was treated unfairly in the hiring process. Recognizing these potential legal pitfalls and training those involved in the interview process is the best way to avoid asking the wrong question during an interview. Continue Reading

New Jersey Court Upholds Use of Job Application to Shorten Statute of Limitations for Employment Claims

Posted in Hiring, Workplace Policies

According to a recent decision from New Jersey’s intermediate appellate court, employers in New Jersey can now reduce the statute of limitations for employment claims by adding the appropriate language to their job applications. Employment claims in New Jersey are often brought under the New Jersey Law Against Discrimination (“NJLAD”), which allows for a private cause of action for harassment, discrimination and retaliation, and permits recovery for lost wages, emotional distress damages, attorneys’ fees, and punitive damages. The NJLAD has a two-year statute of limitations and does not require employees to file with an administrative agency before proceeding to court. Therefore, in New Jersey, it is not unusual for employees to file their employment claims just before the two-year statutory deadline. By the time discovery begins in the lawsuit, key witnesses may have left the organization and memories may have faded, making it more challenging to coordinate a defense. New Jersey employers may now be able to streamline these challenges at the outset of the employment relationship by shortening the time period for filing a lawsuit via waivers in employment applications. Continue Reading