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OUR LOCATIONS
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tel: 516.466.3200
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tel: 212.786.7380
fax: 212.658.9313
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WE OFFER SERVICES
in these specialty areas:
· Complying with local, state and federal
employment laws and regulations
· Drafting
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of HR and legal topics
· Advising on labor relations and union
avoidance
· Defending organizations in labor and
employment litigation
· Performing workplace investigations
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Real Workplace Issues
March 2010
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Greetings!
Welcome to the latest installment of "Real Workplace
Issues," a newsletter dedicated to providing our clients and friends with
practical, everyday employment law and HR information.
In this issue, we highlight a significant New Jersey sexual harassment case, the ever-extending COBRA subsidy, CHIP notice requirements, the revised NY Mini-WARN regulations, and the new Miami-Dade Wage Theft Ordinance.
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As always, feel free to contact us should you require any
assistance, or have any questions regarding the information contained in this
newsletter.
Sincerely,
Halpern Employment Law Advisors
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New Jersey Businesses Can Sue Each Other For Sexual Harassment
On January 16, 2010, the New Jersey Appellate Division
decided the case of J.T.'s Tire Serv.,
Inc. v. United Rentals N. Am., Inc., 411 N.J. Super. 236 (App.Div. 2010),
and held that New Jersey's
Law Against Discrimination (LAD), N.J.S.A. 10:5-12(l), prohibits "quid pro quo"
sexual harassment between businesses.
Eileen Totorello, the owner of J.T.'s Tire Service, Inc.,
sued United Rentals North America, Inc., claiming that United's branch manager
tried to extort sexual favors from her as a condition of doing business with
her company. After several years of Totorello denying the branch manager's sexual advances,
United discontinued its business relationship with J.T.'s Tire Service.
Totorello brought her lawsuit under N.J.S.A. 10:5-12(l),
which expressly prohibits "any person to
refuse to buy from, sell to, lease from or to, license, contract with, or trade
with, provide goods, services or information to, or otherwise do business with
any other person on the basis of the...sex...of such other person or of such other
person's spouse, partners, members, stockholders, directors, officers,
managers, superintendents, agents, employees, business associates, suppliers,
or customers."
The Appellate Division held that although the LAD does not
specifically mention sexual harassment as a prohibited form of discrimination,
it is "well-established that sexual harassment is a form of sex discrimination..."
and that "[w]here, as here, the harassment consists of sexual overtures and
unwelcome touching or groping, it is presumed that the conduct was committed
because of the victim's sex." The Appellate Division therefore held that
N.J.S.A. 10:5-12(l) prohibits quid pro quo sexual harassment between
businesses.
As a result of J.T.'s Tire Service, Inc., New Jersey
employers must now be aware that they can be held liable not only when their
employees become victims of sexual harassment, but also when non-employees whom
they conduct business with are victimized by quid pro quo sexual harassment.
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COBRA "Stimulus Act" Extended Yet Again
The COBRA subsidy originally provided for under the American
Recovery and Reinvestment Act of 2009 (the "Stimulus Act") and which was extended until
February 28, 2010 under the Department of Defense Appropriations Act of 2010
(the "DOD Act"), was recently extended yet again by the Temporary Extension Act
of 2010 ("TEA").
According to the U.S. Department of Labor's website, TEA extends the COBRA
premium reduction eligibility period for one month until March 31, 2010. TEA
also expands eligibility to individuals who experience a qualifying event that
is a reduction of hours occurring at any time from September 1, 2008 through
March 31, 2010, which is followed by an involuntary termination of employment
on or after March 2, 2010 through March 31, 2010.
This expansion also includes a second election opportunity for these
individuals who had a reduction of hours qualifying event followed by an
involuntary termination, if they did not elect COBRA continuation coverage when
it was first offered OR elected but subsequently discontinued COBRA."
For more information on TEA, as well as updated model COBRA notices, please
visit www.dol.gov/ebsa/cobra.html.
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Employers Required to Distribute CHIP Notices
The Children's Health Insurance Program Reauthorization Act of 2009
(CHIPRA), which President Obama signed into law last February, requires employers who
maintain group health plans to inform employees of potential opportunities
currently available in the state in which the employee resides for premium
assistance under a state Medicaid plan or state Child Health Insurance Plan
(CHIP).
Employers must distribute the
required notice to employees by either May 1, 2010, or the beginning of the
first plan year that starts after February 4, 2010, whichever is later.
The U.S.
Department of Labor's model notice can be found at www.dol.gov/ebsa/. For more information on CHIPRA, visit www.insurekidsnow.gov/.
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NYSDOL Revises "NY Mini-WARN" Regulations
The New York State Workers Adjustment and Retraining Notification ("NY Mini-WARN")
Act is designed to give employees, their representatives, the
New York State Department of Labor (NYSDOL), and the local Workforce Investment Board early
warning of business closings and layoffs. Under NY Mini-WARN, covered employers are required to provide 90 days' notice prior to a plant
closing, mass layoff or relocation occurring on or after February 1,
2009.
On February 12, 2010, the NYSDOL amended its NY Mini-WARN Regulations. Included in the various
changes made to the regulations are the following:
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The new regulations provide for additional
information that must be included in the content of the required notices to the
N.Y. Commissioner of Labor, each affected employee, the employees'
representative(s) and the local Workforce Investment Board.
- Providing notice by e-mail is now permitted so
long as certain requirements are satisfied.
- The definition of the term "date of layoff" has
been revised to mean "the last day an employee is eligible or permitted to work
for his or her employer."
- A covered "relocation" must affect at least 25
employees.
- The new regulations clarify which entity must
provide notice in the event of the sale of a business, the consolidation of all
or part of a business, or a merger.
- The new regulations also address the application
of NY Mini-WARN in bankruptcy situations.
Also revised and/or clarified are:
- the definition of "single site of employment"
- the look-ahead/look-behind aggregation
requirements
- the regulations on temporary employment
(including provisions on seasonal employment which have been added); and
- the liability, enforcement and confidentiality
provisions.
The text of the new regulations
with the amendments identified is available at www.labor.ny.gov/workforcenypartners/warn/pdfs/Part921_Comparison2-16-10.pdf.
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Miami-Dade Wage Theft Ordinance Effective 3/1/10
The Miami-Dade County Board of
Commissioners recently passed the Miami-Dade Wage Theft Ordinance, which became
effective March 1, 2010. The Ordinance applies to private employers with
employees employed in Miami-Dade
County, and seeks to
prohibit "the underpayment or nonpayment of wages earned by persons working in
the County..."
The Ordinance provides that covered
employers must pay covered employees within a minimum of 14 calendar days from
the date on which the work is performed. The employer can pay the employee
later than 14 days (but not to exceed 30 days) upon an express written
agreement signed by the employee. Failure to do so is considered "wage theft"
under the Ordinance.
Employees subjected to wage theft may
file a complaint with the County alleging a violation of the Ordinance. In addition, either party
is entitled to a hearing before a Hearing Examiner appointed by the County. If,
upon the conclusion of a hearing, the Hearing Examiner determines that the "preponderance of the evidence" demonstrates a wage violation has occurred, the
employer will be liable for:
- Liquidated damages of twice the amount an
employer is found to have unlawfully failed to pay the employee; and
- An assessment of costs in an amount not to
exceed actual administrative processing costs and costs of the hearing.
Employees also have the right at
any time to stop the proceeding and file a civil action in State or Federal
Court. It should also be noted that supervisors may also be individually liable
for violations under the ordinance.
It is therefore critical that
employers in Miami-Dade
County review their pay
policies, as well as their exempt/non-exempt classifications to ensure that
employees are receiving their proper pay at the proper time.
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IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform
you that any U.S. federal tax advice contained in this communication is not
intended or written to be used, and cannot be used, for the purpose of (i)
avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing
or recommending to another party any transaction or matter that is contained in
this document.
In addition, this newsletter is provided for informational
purposes only and is neither intended to be legal
advice nor does it create an attorney-client
relationship between Halpern Employment Law
Advisors and any reader.
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