August 20, 2019

August 20, 2019

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August 19, 2019

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Notices for the New Year and Good News for Employers: Update on Wage and Hour Class Actions

Required Notices

With the holiday season upon us, employers should be careful not to lose sight of important notice, posting and distribution obligations commencing early in the new year. Below is a summary of the upcoming requirements, some old and some new, with which employers with employees in New York City, New York State and/or New Jersey must comply:

  • New York City: As a result of the recently enacted Pregnant Workers Fairness Act, employers with four or more employees are required to provide a written notice, regarding the right to be free from discrimination related to pregnancy, childbirth, and related medical conditions, to all current employees by January 30, 2014 and, thereafter, to new employees upon commencement of employment. The New York City Commission on Human Rights has released a model written notice. The notice should also be conspicuously posted in the workplace. For more information about the impact of the Pregnant Workers Fairness Act see our October 2013 Legislative Update. Covered employers also should review their policies and manuals to ensure compliance with the new law.
  • New York State: The New York Wage Theft Prevention Act (“WTPA”) requires all private sector employers to provide all New York employees with an annual notice regarding their compensation and other terms of employment. The notice must be provided to all employees between January 1 and February 1 of each year, regardless of length of employment or whether compensation has changed. Accordingly, all employees must receive a written WTPA notice on or before February 1. For additional information regarding notice requirements, see our prior annual WTPA reminder. Employers should be reminded that, in addition to annual notices, WTPA notices must be provided at the time of hire and to current employees in advance of a reduction in pay.
  • New Jersey: New Jersey’s new pay equality notice law, which became effective on November 19, 2012, requires every employer in New Jersey with 50 or more employees to post a notice advising employees of their right to be free from gender inequity in pay, compensation, benefits, or other terms or conditions of employment. Commencing January 6, 2014, covered employers are required to: (1) post the notice in a conspicuous place (or places); (2) provide a written copy of the notice by February 5, 2014 to all employees hired on or before January 6, 2014; (3) provide a written copy of the notice at the time of hiring, for employees hired after January 6, 2014; (4) provide all employees with a written copy of the notice on or before December 31 of each year; and (5) provide all employees with a written copy of the notice upon request of the employee. Notice under (2) through (5) may be provided through hard copy, e-mail, or, in certain circumstances, via employer intranet/internet sites and must be accompanied by an acknowledgement that the employee received, read and understood its terms. The acknowledgment must be signed and returned to the employer within 30 days.

D. R. Horton Decision

In our March 2013 Alert, we advised you of the NLRB decision in D.R. Horton, 2012 NLRB LEXIS 11, 357 NLRB No. 184 (N.L.R.B. Jan. 6, 2012), invalidating FLSA class action waivers in employment arbitration agreements as violations of the NLRA. In a victory for employers, on December 4, 2013, the Fifth Circuit Court of Appeals overturned that decision and found that the Board’s decision did not “give proper weight to the Federal Arbitration Act (FAA).” The Court further held that while the NLRA protects collective suit filing as concerted activity, the FAA mandated the enforcement of arbitration agreements according to their terms, and the effect of the Board’s interpretation would be to disfavor arbitration. Because there is no text or legislative history in the NLRA that demonstrates a “congressional intent to override the FAA”, and to avoid creating a split in the circuits, the Fifth Circuit found that arbitration agreements containing class action waivers are enforceable even taking into account the NLRA.

Practice Tip

Until and unless the Supreme Court weighs in on this issue, employers can feel relatively safe in deciding to include class action waivers in employment agreements containing arbitration provisions. The one caution that can be derived from the case is that the language of the waiver must make clear that the employer is not attempting to interfere with any rights under the NLRA. 

© Copyright 2019 Sills Cummis & Gross P.C.


About this Author

David I. Rosen, Sills Cummis Gross, Wrongful Dismissal Lawyer, Labor Arbitration Attorney

David I. Rosen has practiced labor and employment law on behalf of management clients since 1977. He handles employment litigation in the federal and state courts, before administrative agencies and through arbitration and mediation, and has broad experience with wrongful dismissal and employment discrimination claims, having successfully defended employers following jury and bench trials. His litigation experience extends to the enforcement and defense of restrictive covenants, NLRB unfair labor practice trials and appellate advocacy. Mr. Rosen also represents employers in labor...

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Galit Kierkut, Employment Litigation Attorney, Sills Cummis Gross, Social Media Matters Lawyer

Galit Kierkut concentrates her practice on employment litigation and counseling. She conducts human resources audits, performs management and employee training in all areas, including sexual harassment, social media and electronic communications use, and counsels clients regarding compliance with state and federal employment laws, including discrimination laws, the Fair Labor Standards Act (FLSA), family and medical leave, and the Worker Adjustment and Retraining Notification (WARN) Act. She also reviews and drafts employee handbooks, social media policies and employment contracts, including restrictive covenants and severance agreements. Her employment litigation practice is primarily focused on resolving claims in the areas of discrimination, sexual harassment, restrictive covenants, whistleblowing and employment contract disputes in state and federal courts and before the Department of Labor and the Equal Employment Opportunity Commission (EEOC).

Jill Turner Lever, Employment Attorney, Sills Cummis, Separation Agreements Lawyer
Of Counsel

Jill Turner Lever practices in all aspects of employment law.  She advises clients on a wide range of employment law issues including day-to-day advice and counsel on compliance with federal, state and local employment laws.  Ms. Lever drafts employment agreements, separation agreements, employee handbooks and human resources policies.  She provides advice on handling complaints of sexual and other forms of workplace harassment.  

Grace Byrd, Labor Litigation Lawyer, Employment Attorney, Sills Cummis, Law Firm

Grace A. Byrd is an Associate in the Firm’s Employment and Labor Practice Group.  Ms. Byrd represents corporate clients from a wide range of industries, including health care, pharmaceutical, hospitality, financial services and manufacturing, among others, in connection with employment disputes.  Her experience includes employment discrimination, wrongful discharge and other employment-related litigation, including claims in the areas of sexual harassment, age, disability, gender, pregnancy, race, retaliation, family leave laws, whistleblower statutes, restrictive covenants and...