Maxine Neuhauser

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The EEOC announced a rule change that will more than double the maximum fine for violating Title VII, the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA)  notice posting requirements. Under the new rule, which is projected to become effective the first week of July, employers will face a maximum penalty of $525 per violation — up from $210.

While most retailers undoubtedly know they must have notices, where the notices are posted matters. The regulations require that they be in a prominent and accessible place where notices to employees and applicants are customarily maintained. For retailers in tight spaces this might prove challenging.  To avoid being dinged, however, it will pay to double check that the notices are not properly displayed and relegated to a storage closet door or obscured by stacked boxes.

Maxine NeuhauserIn a decision with ramifications for employers in health, retail, hospitality and other industries serving the public, on October 22, 2015 in a decision, Marina Del Rey Hospital, 363 N.L.R.B. No. 22, 2015 BL 347693, the NLRB confirmed the legality of policies barring employees from the premises when not on duty, which contain an exception permitting off-duty employees to be on the premises as members of the public, e.g., as a patient or a visitor.  The Board found, however, that enforcement of the facially neutral policy to certain employment restrict protected activity constitutes an unfair labor practice. The decision addressed the policy stated in the Marina Del Rey Hospital’s employee handbook stating:

Off-duty employees may access the Hospital only as expressly authorized by this policy. An off-duty employee is any employee who has completed or not yet commenced his/her shift.

An off-duty employee is not allowed to enter or re-enter the interior of the Hospital or any Hospital work area, except to visit a patient, receive medical treatment, or conduct hospital-related business. “Hospital related-business” is defined as the pursuit of an employee’s normal duties or duties as specifically directed by management.

An off-duty employee may have access to non-working, exterior areas of the Hospital, including exterior building entry and exit areas and parking lots.

Any employee who violates this Policy will be subject to disciplinary action up to and including termination.

The record before the Board established that the hospital permitted off-duty employees on premise for non-union, employment-related activities such as picking up paystubs, submit­ting scheduling requests, applying for a transfer, and at­tending social events, e.g. retirement parties and wed­ding and baby showers. On at least two occasions, however, the hospital applied the off-duty access policy to prevent or curtail off-duty employees from meeting with union representatives in the hospital cafeteria. The Board found that this disparate enforcement of the otherwise facially lawful constituted an unfair labor practice in violation of employees’ Section 7 rights.

While at first blush the decision appears to favor a policy permitting carve outs, as a practical matter, the problematic examples of employee off-duty conduct, e.g., picking up pay stubs, applying for and the like, that the Board found problematic point to the difficulty employers are likely to have in maintaining a no access rule with carve-outs.

34th Annual Workforce Management Briefing Banner

When:  Thursday, October 15, 2015    8:00 a.m. – 3:00 p.m.

Where:  New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

This year, Epstein Becker Green’s Annual Workforce Management Briefing focuses on the latest developments that impact employers nationwide, featuring senior officials from the U.S. Department of Labor and the Equal Employment Opportunity Commission. We will also take a close look at the 25th anniversary of the Americans with Disabilities Act and its growing impact on the workplace.

In addition, we are excited to welcome our keynote speaker Neil Cavuto, Senior Vice President, Managing Editor, and Anchor for both FOX News Channel and FOX Business Network.

Our industry-focused breakout sessions will feature panels composed of Epstein Becker Green attorneys and senior executives from major companies, discussing issues that keep employers awake at night.  From the latest National Labor Relations Board developments to data privacy and security concerns, each workshop will offer insight on how to mitigate risk and avoid costly litigation.

View the full briefing agenda here. Contact Kiirsten Lederer or Elizabeth Gannon for more information and to register.   Seats are limited.

On Epstein Becker Green’s Management Memo blog, I review New Jersey U.S. District Court’s ruling in Naik v. 7-Eleven that four franchise owner-operators may pursue overtime and minimum wage claims against franchisor 7-Eleven under both the federal Fair Labor Standards Act (“FLSA”) and the New Jersey Wage and Hour Law (“NJWHL”).

Following is an excerpt from the blog post:

On July 29, 2014 the NLRB’s General Counsel announced a decision to treat McDonald’s, USA, LLC as a joint employer, along with its franchisees, of workers  43 McDonald’s franchised restaurants with regard to unfair labor practices charges filed by unions on behalf of the  workers and authorized charges against of both the franchisees and McDonalds. (See our July 30 blog post  and Aug. 14 blog post)

To access the full blog post, please click here.

Our colleagues Maxine Neuhauser and Amy E. Hatcher have written a client advisory: “Employer Posting Requirements Under New Jersey Law.” Following is an excerpt:

The list of employee notices that New Jersey employers are required to post has grown this year. Accordingly, as 2012 comes to a close, New Jersey employers should take some time to review the notification requirements relating to employees’ workplace rights and responsibilities under state law.

Employers are mandated under New Jersey law to display official posters informing their employees of the law relating to employee rights and responsibilities. An employer that fails to comply with these requirements may face monetary fines and other penalties.

Generally, to comply with these regulations, an employer must post the most recent version of the posters in locations visible to all employees and applicants for employment. Employers should display these notices in areas accessible to all employees, such as a lunchroom, break-room, or human resources office. New Jersey also requires that certain of the notices be distributed to employees. This article serves as a reminder and summary of New Jersey’s notification requirements applicable to most employers.

Click here for the full advisory, “Employer Posting Requirements Under New Jersey Law.”