employersassoc

On Aug. 2, the National Labor Relations Board (NLRB) set a new standard to evaluate facially neutral work rules in union and nonunionized workplaces when it issued a much-anticipated decision in Stericycle, Inc., 372 NLRB No. 113 (2023).

The new standard significantly favors employees and unions and overrules the more employer-friendly precedent in place since 2017.
 
The Board held that a work rule that has the tendency to “chill” employees in the exercise of collective rights is presumed unlawful. In determining whether a work rule has the tendency to chill employees from their rights, the Board will interpret the rule from the perspective of a reasonable employee “who contemplates engaging in [concerted] activity” but who fears discipline or discharge.

According to John Sarno, president of the Employers Association of New Jersey, the Board’s decision provides little, if any, guidance to employers about how to craft rules that will satisfy the new standard.

Sarno points to the following standard policy contained in an Employee Handbook:

If you are subject to harassment you must report it to Human Resources.  Any investigation should be treated as confidential

“I doubt that this policy is lawful because under the National Labor Relations Act, an employee can report harassment to co-workers and third parties.  Employees also have the right to exchange information with pretty much anyone that they want too.  Thus, this policy would likely be interpreted as chilling worker rights,” he says.

Sarno also points out that workers have an absolute right to talk to others, including co-workers, about their wages, meaning that those confidentiality polices are also unlawful.
 
“There are dozens of standard polices which need review and likely revision,” he adds.

EANJ is convening a live 3-hour seminar on September 19th to cover the new legal standards and much more. Click here.

On July 21, 2023, the New Jersey Department of Labor and Workforce Development posted on its website proposed regulations to implement the New Jersey Temporary Workers Bill of Rights. Public comments on the proposed regulations will be accepted until October 20, 2023.

Among other things, the proposed regulations detail how a temporary worker’s hourly rate of pay is to be calculated, including when an employer pays a comparator on a salary basis, and how to determine when temporary workers and third-party client employees are performing similar work; clarify that workers’ years of service are not relevant to determine whether two jobs are substantially similar; and provide additional clarity regarding what is required for wage statements and payroll deductions, among other things.

The proposed regulation seeks to implement the statue, which was signed into law on February 6, 2023 and requires temporary workers to be paid the same average rate of pay as a permanent employee of the third-party client who performs the same or substantially similar work for the employer at the same time the temporary worker is assigned to the position. It also goes one step further to require that temporary workers also receive the “average cost of benefits, or the cash equivalent thereof.”

The law does not apply to all temporary worker positions, but rather those positions that the Legislature considered to be “at greatest risk of exploitation.” For now, the law covers:

Food Preparation and Serving Related Occupations
Building and Grounds Cleaning and Maintenance Occupations
Personal Care and Service Occupations
Construction Laborers
Helpers, Construction Trades
Installation, Maintenance, and Repair Occupations
Production Occupations
Transportation and Material Moving Occupations

The law also requires detailed wage notices to be provided to temporary workers in writing in English and in the language identified by the temporary worker as their primary language.

The also makes clear that, beginning May 7, it is unlawful for either a temporary help service firm or third-party client to retaliate against a temporary laborer for exercising their rights under the law.

Most of the statutory provisions will take effect August 5.  However, the provisions regarding hiring notices and prohibiting retaliation were effective May 7, 2023.

The law also allows an aggrieved temporary worker to institute a civil action in the Superior Court, with no exhaustion requirement, against both the temporary help service firm and the third-party client. The temporary help firm and third-party client could be held joint and severally liable for payment of wages or any other violation. The statute of limitations is six years from the final date of employment.

According to John Sarno, president of the Employers Association of New Jersey, the law also expressly provides that an action can be brought by one or more temporary laborers on behalf of themselves and other temporary laborers similarly situated. Employers will now likely face an increase in not only single plaintiff but also class action lawsuits.

“Employers that retain temp firms are on notice with this law,” Sarno says. “Joint and several liability means that the employer will be on the hook for violations committed by the temp firm.”

As such, Sarno recommends that employers have strong indemnification protection in their contracts with temporary help firms.   

The New Jersey Department of Labor and Workforce Development (LWD) has selected Employers Association of New Jersey (EANJ) as a recipient of the Cultivating Access, Rights and Equity (CARE) Grant Program for fiscal year 2023.

The purpose of the CARE Grant Program is to increase New Jersey employers’ awareness of, and workers’ equitable access to, paid family and medical leave benefits (Temporary Disability Insurance and Family Leave Insurance), Earned Sick Leave, and related work rights.  The grant focuses on workers and industries who are less likely to have awareness of or meaningful access to paid leave.

EANJ will utilize the funding to provide outreach and education to employers statewide through May of 2024.

“EANJ is thrilled to be selected as a recipient of this grant,” says Amy Vazquez, the Association’s Vice President.  “Supporting employers through outreach and education is the very foundation of EANJ’s mission and we look forward to working with (LWD) on this important initiative.”

Because of the broad applicability of New Jersey’s paid leave programs, the vast majority of employees working in the state are eligible for earned sick leave, family leave insurance and temporary disability insurance.  Despite the wide-spread availability of benefits, awareness of these programs is lacking.  

According to EANJ’s 2019 survey of 375 NJ businesses, most paid leave claims were filed by women, usually to care for newborn babies (89% of claims), and uptake of benefits was particularly low among smaller employers, with only 2 in 10 (20%) having filed a claim for family leave insurance benefits in the 12-month period preceding the survey.  

Most employers underestimate the benefits of paid leave benefits on their businesses and overestimate the burden it will have on their operations.  However, with regard to Family Leave Insurance in particular, EANJ’s survey illustrates a low administrative burden, with 40% of employers responding that administering an FLI claim took less than 1 hour and 43% responding it took between 1-2 hours.

Of the 315,000 private sector business establishments in the state, 96% employ fewer than 50 employees. “Raising awareness among the small business community is essential for achieving equity for all workers,” says Vazquez.  “These benefits are often status quo in larger organizations but small employers routinely deny or are unaware of how these laws apply to them.”

When New Jersey’s Earned Sick Leave law took effect in 2018, EANJ served as the go-to information source for employers statewide.  When Paid Family and Medical Leave benefits were expanded in 2019, EANJ was at the forefront of bringing essential information and timely updates to employers.

EANJ will be available to speak with and providing training for members of industry-specific trade associations, business chambers, Workforce Development Boards and partner associations among others, on earned sick leave and paid family and medical leave.

“This grant will allow EANJ to bring the collective expertise of our staff to a wide-range of employers statewide,” says Vazquez.

Those interested in having EANJ address their business group can reach out directly to Amy Vazquez (amy@www.eanj.org).

The Employers Association of New Jersey (EANJ) successfully convened its 107th Annual Membership meeting on May 17, 2023.  With a focus on charting the future of the association, the meeting brought together members, staff, board members and friends of EANJ.

“The fact that so many made time in their schedules to attend this meeting provides a sense of our collective purpose, commitment and interest in the continued success of EANJ,” reflected Amy Vazquez, Vice President of the Association, “and it creates great momentum that will carry us into the foreseeable future.”

The highlight of the meeting was the presentation of EANJ’s strategic plan by Vazquez who shared the association’s mission, values and goals for the future.  The plan places a strong emphasis on member engagement, professional development and new initiatives.

The strategic plan was crafted by a strategic planning committee, comprised of EANJ board members and leadership.

Central to the development of the strategic plan was the input and feedback provided by EANJ’s membership.  EANJ conducted a comprehensive membership satisfaction survey, gathering insights and perspectives from a diverse range of members.

To further ensure that member voices were heard and incorporated into the strategic plan, a focus group session was convened. This interactive session provided a platform for in-depth discussions and allowed members to share their thoughts, suggestions, and concerns directly with EANJ’s leadership team. The input received during the focus group played a crucial role in shaping the strategic plan and ensuring its alignment with the expectations of EANJ’s membership.

“Members are at the center of all that we do,” remarked John Sarno, EANJ’s president, “aligning EANJ’s strategic priorities with the evolving needs of the membership is a critical component of the plan and how the association moves forward.”

In addition to the strategic plan presentation, the Annual Meeting featured an engaging panel discussion titled “Beyond the Pandemic: Reflections and Strategies for Shaping the Future of Work.”

The panel was comprised of incoming EANJ board members: Santo Barravecchio of Horizon Blue Cross Blue Shield of NJ; Bill Devitt of Valley National Bank; Shamida Charles-Marc of Our House, Inc. and Rachael Sobon, of Hermann Services Inc.  Marc Wolf of LTS, Inc. was also inducted to EANJ’s board but was unable to be present for the panel discussion.

Panelists shared their insights and experiences regarding the new realities and emerging trends in the workplace.  As professionals working in the filed of HR, each was on the front lines during the pandemic and navigated unprecedented challenges in the workplace that required their organizations to quickly adapt to new ways of work while also ensuring the safety and well being of their employees.

Key takeaways from the discussion included the importance of flexibility; the value of residence; the importance of well-being; and the need for agility.

“We are at a unique point in time having just come through a pandemic,” noted Vazquez who moderated the discussion, “the time is right to look at what we have learned over these past three years and consider what we can do to make work better moving forward.”

The COVID-19 public health emergency, first declared in January 2020 and renewed every 90 days since, is scheduled to come to an end on May 11, 2023.  The national emergency, which was established in March 2020, came to an end on April 10, 2023.  

The have both symbolic and real-world consequences.

According to the Centers for Disease Control and Prevention (CDC), COVID-19 was the third leading cause of death between 2020 and 2023. Currently, key measures of COVID statistics are at or near unprecedented lows for the pandemic.

“At the three-year mark, COVID is no longer upending life to the extent it once did, with a large percent of the population having some protection against the virus from vaccinations and prior infections,” says Amy Vazquez, Vice President of Employers Association of New Jersey.

Employers may wish to evaluate any COVID-19 policies, including benefits, vaccine and testing requirements, safety measures, and other employment policies to determine whether any changes are appropriate in light of the end of the emergency declarations.

Healthcare plans will no longer be required to cover COVID-19 testing and vaccines without cost sharing (i.e., co-pays and deductibles) and prior authorizations.  Employers may see an increase in requests to join employer health benefit plans as some workers may no longer qualify for Medicaid.

Provisions that allowed for extended time for special enrollment in health plans, as well as COBRA-related relief, in which employees had extra time to decide whether they wanted coverage and pay their COBRA premiums will come to an end on July 10th (60 days following the end of the National Emergency).

The Department of Health and Human Services transition guidance provides information on other benefits which may be impacted.

In terms of workplace safety, OSHA’s guidance on mitigating and preventing the spread of COVID in the workplace was last updated in August 2021 and relies on CDC community risk levels guidance to help individuals and communities to decide which prevention actions to take based on the latest information.  The community levels in each of New Jersey’s 21 counties is currently “low.”

Some employers may opt to continue policies such as daily health screening and temperature checks, which are generally not burdensome.  Businesses still face disruption due to work absences or intermittent requests for remote work due to employee or family illness.

While the end of the declarations does not require employers to end their vaccine mandates, some may use this moment to consider whether to keep mandates in place or shift to a practice of strongly encouraging all employees to remain up to date with their COVID-19 vaccines.

Employers should also consider whether continuing to COVID test is job related and consistent with business necessity under the Americans with Disabilities Act (ADA).  The EEOC recommends an individualized assessment to determine whether mandatory testing is warranted going forward.

Mask are currently optional in most locations in New Jersey, including health care facilities, unless the individual businesses or facilities choose to require them.

What about employees who wish to continue to mask up at work?  The CDC continues to recommend masking according to community levels, as well as when you have been exposed or if you are at high risk for severe illness. According an FAQ on NJ’s COVID information hub for businesses, “Businesses are permitted to impose stricter mask policies and additional prevention strategies, but businesses are not allowed to restrict the use of face masks by their staff, customers, or visitors.”  This FAQ is dated April 2021.

“If an employee can express a reasonable basis for continuing to wear a mask, the employer may be hard pressed to deny it.  A worker with a disability, for example, could always request to wear a mask as an accommodation,” says Vazquez. “It remains to be seen whether we will see additional updated guidance as the pandemic comes to an end.”

Early this year, the Biden Administration announced it will end the COVID public health emergency (and national emergency) declarations on May 11, 2023.

On May 17th, the Association will convene its 107th Annual Membership Meeting.

For well over a century, the Employers Association of New Jersey  has helped employer-members meet the workplace challenges of their time. Through world wars, influenza pandemic, stock market crashes, economic depression, social upheaval, the displacement of manufacturing and the rise of the service economy, terrorist attack – the Association has been a mainstay for employers in New Jersey who believe that skilled and motivated workers are an asset, not just a labor cost.

“One of the biggest reasons for the Association’s longevity is that regardless of the amount of time spent helping a member, each member receives the prompt attention, expert assistance and informed guidance from EANJ’s professional staff,” says John Sarno, president.

Helping employers through the pandemic was no exception, as the Association staff fielded thousands of inquiries and delivered dozens of informative webinars.

And looking ahead, the Association anticipates:

Health, safety and wellness remaining core features of the workplace and the quality of work-life,
Attracting and retaining talent continuing to be a major concern,
Maintaining a positive workplace culture remaining an ongoing challenge, and
Employers needing the best information to make evidence-based decisions.

The Association has also been diligently working on its own strategic plan.  With Amy Vazquez, the Association’s newly appointed Vice President and members of the Association board leading focus groups, collecting information and conducting surveys, the plan will chart the future of the organization.

“At this post pandemic inflection point, members are urged to attend EANJ’s 107th Annual Membership Meeting, where the organization’s strategic plan, including organization succession, will be presented to the membership for feedback,” says Sarno.

More here.