Effective March 1, 2015, many New Jersey employers will be prohibited from making inquiries into an applicant’s criminal record on employment applications. The following is a brief list of Frequently Asked Questions concerning the new Opportunity to Compete or “Ban the Box” law.

1. Does the law apply to all New Jersey employers? No.

The law only applies to employers with 15 or more employees who conduct business, employ persons or take applications for employment within the State of New Jersey.

2. Does the law prohibit employers from making any inquiry regarding an applicant’s criminal record at any point during the interview process? No.

The law only prohibits employers from making oral or written inquiries regarding an applicant’s criminal record during the initial employment application process, meaning the employment application itself. The law also prohibits employers from posting job advertisements stating that the employer will not consider any applicant who has been arrested or convicted of a crime.

3. What does the “initial application process” mean?

The “initial application process” is when an applicant or the employer makes an inquiry about a prospective employment position, either in writing or by other means. It is important to note that the process concludes when an employer has completed the first interview of the applicant.

4. What if the applicant voluntarily discloses information regarding his or her criminal background during the initial application process?

If that occurs during the interview process, the employer is free to ask questions concerning the criminal record. However, it is imperative that the employer document that the information was obtained as a result of a voluntary disclosure by the applicant.

5. What are the penalties associated with a violation of the new law?

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The New Jersey Department of Labor can impose $1,000.00 for the first violation, $5,000.00 for the second violation, and $10,000.00 for each subsequent violation.

6. Do employers need to have a posting in the workplace regarding the new law?

There are no required postings.

7. What other States currently have similar “ban the box” legislation?

At present, 12 other states have embraced bans on criminal background checks during the initial application process including: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Mexico and Rhode Island. There are also a number of cities and counties (including New York City) that have passed similar legislation.

If you have any questions, please feel free to contact Howard A. Matalon, Esq. at 908-964-2424.

Effective April 1, 2014, businesses with a New York City office that have 20 or more employees working out of such office are required to provide five paid sick days per calendar year to their employees.  (The law will expand to employers with 15 or more employees starting October 1, 2015.)   Businesses with fewer employees working out of an office in New York City do not have to provide paid sick time, but must allow their employees five unpaid sick days.

 The purpose of this Client Alert is to address some of the Frequently Asked Questions we have received from our clients about the new employment law. As we often stress, simple employment mistakes are often quite costly to fix:

Q.    Does the law apply only to full-time employees?  No.  The law applies to all employees whether full-time, part-time, temporary or seasonal, as long as they work more than 80 hours in a calendar year.

Q.    Does it matter whether the principal location of the business is in New York City?  No.  The law applies to any business as long as the business has employees based out of a location in New York City.  Employers with offices in different states need only accommodate employees working in New York City with the leave time required under this law.

Q.    Are there any limitations to the use of sick time?   Almost none.  Employees may use sick time for absences due to their own illness, injury or health condition or the illness, injury or health condition of a family member.  In addition, the law allows sick time if the place of business is closed due to a health emergency or the employee must take care of a child whose school or care provider has been closed under similar circumstances. 

Q. Do the five days need to be provided automatically to new employees?  No.  New employees can be required to work at least four months before they can use the sick days. 

Q.    How are the sick days accrued per year?  Employees will accrue one hour of sick time for every 30 hours worked, and are entitled to 40 hours per calendar year.

Q.    Can the employer insist on documentation if the employee uses multiple days on a consecutive basis?  Yes.  The law permits employers to require reasonable documentation for sick time lasting more than three consecutive work days.

Q.    Does the law require businesses to extend any existing sick leave policy by the five days covered under the law?  No.  Employers who already provide at least five days of leave time (40 hours per calendar year) for the same paid leave usage and under the same conditions as leave time required under the new law are not required to provide additional sick time.

 Q.    Do the five days carry over from year to year?  Yes.  But the business may cap usage of accrued unused sick days to a maximum of 40 hours in a calendar year.

 Q.    Are businesses required to notify the employees about this change in the law?  Yes.  Written notice of rights must be provided to the employee at commencement of employment. 

 If you have any questions, please feel free to contact Howard A. Matalon, Esq. at 908-964-2424.

The consequences of failing to develop employment-hiring materials can be devastating. So why do many employers fail to develop a basic set of documents governing the employment relationship with new hires?

Howard Matalon notes that although employment documents can be developed in a very cost-effective manner, many employers fail to give consideration to such documents until it is too late.  and no employer can afford to build a business without them. “Employers must reprioritize the importance of employment hiring practices and make them an actual part of their business model,” says Matalon.   Compliance as an afterthought has become an extremely expensive prospect for the unfortunate employers who ignore their human resource obligations.”

For these reasons, all employers must take a methodical approach to their hiring practices and procedures and treat these processes as seriously as they would every other critical aspect of their business. Read the full article regarding employment hiring practices.

Employment/Workplace Social Media Policies

Employment/Workplace Social Media Policies

No one wants to lose his or her job over a Facebook post. However, most employees also do not think twice before griping about a boss in a status update, or posting a picture from last Friday night on a coworker’s wall. While free speech has historically been protected in the United States, there can also be negative repercussions for exercising that right.

By Alice Cheng

Does it violate the law to fire someone over social media activity? Possibly, depending on whether the post is determined to be a “protected concerted activity” or not. Generally, the National Labor Relations Board (NLRB) has determined that Section 7 of the National Labor Relations Act permits “concerted activity,” which involves employees talking jointly about terms or conditions of employment (i.e., coworkers discussing a disliked supervisor on Facebook), and is permissible in order to protect employees against employer retaliation. Section 8(a)(1) is related and prohibits interfering with employees rights under Section 7.

For example, merely “venting” on a social network about a workplace condition is generally not enough to constitute protected concerted activity. Protected posts usually must involve, at a minimum, initiating or inducing coworkers to action (i.e., generating discussion among coworkers on Facebook).

Last month, the Acting General Counsel of the NLRB issued his third report on social media, including an analysis of seven recent social media cases, focusing on employers’ social media policies and rules. The report mentions that rules explicitly restricting Section 7 activity would be clearly unlawful. If the rule does not explicitly do so, it may still be unlawful under Section 8(a)(1) upon a showing that: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Although the cases within the report do not represent “the law,” they still provide helpful general guidance for employers seeking to design appropriate policies.

Avoid broad and ambiguous language. Policies which tell employees to not use “offensive” or “demeaning” comments should be backed with a specific example (such as offensive posts meant to discriminate based on race, sex, religion, or national origin) so that reasonable employers would not construe such language to cover protected activities. The Board has also long held that any rule requiring an employee to obtain the employer’s permission prior to engaging in protected activity is blatantly unlawful. Similarly, policies cannot require posts to be “completely accurate and not misleading” and should not limit discussions of work so that any discussion would be virtually impossible.

Rules requiring employees to maintain the confidentiality of trade secrets and private and confidential information are permissible, as employees have no protected right to discuss these matters. Generally speaking, employees have few rights to workplace privacy. However, there are limits on an employer’s ability to limit the use of the employer’s logos and trademarks.  For example, an employer cannot prohibit the use of picket signs containing the logos or trademarks.

Savings clauses have no real effect. These clauses generally state that the policy will be administered in compliance with relevant laws.  The NLRB has dismissed these as not curing any ambiguities in the overbroad policies.

It is also helpful for employers to place policies in context.  The policies should acknowledge the usefulness and appeal of social media, but also remind employees that they are responsible for what they write, to know their audience, and to use their best judgment. The purpose of a social media policy should clearly be to avoid use that would adversely affect job performance or business interests (including harming clients or customers), rather than for the sake of surveillance and retaliation.

Employers should also stay updated on recent developments pertaining to the disclosure of social media passwords. Recently a number of states have considered or implemented bans on “shoulder surfing” or mandatory disclosure of private accounts.