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New Jersey Governor Phil Murphy just signed a bill amending the state’s workplace bias statute by expanding protections against age discrimination. The most significant aspect of Assembly Bill No. 681, signed into law on October 5 and taking effect immediately, is the elimination of a provision of the New Jersey Law Against Discrimination (NJLAD) that permitted employers to refuse to hire or promote any person over 70 years old. What do New Jersey employers need to know about this development?
Significance of Amendment
The removal of the upper age limit is most significant for employers with less than 20 employees. They can no longer refuse to hire or promote an individual over the age of 70. The Age Discrimination in Employment Act of 1967 (ADEA), which applies to employers with 20 or more employees, does not have an upper age limit for its prohibitions on refusals to hire or promote individuals. However, some categories of damages available to those suing employers under the ADEA are limited. Now, due to the Amendment, all damages available to aggrieved workers under the NJLAD are available to all individuals age 70 and older.
Other Aspects of New Law
The Amendment also imposes a higher standard for setting a mandatory retirement age for government employees. It eliminates the provision that allowed government employers to force employees to retire if they could show “the retirement age beared a manifest relationship to the employment in question.” However, the Amendment does not eliminate the NJLAD’s language permitting government employers to mandate their employees retire upon the attainment of a certain age if the employer can show the employee is unable to adequately perform his or her duties. Moreover, the Amendment does not alter mandatory retirement for certain government employees, such as state judges.
Finally, the new law also expands the remedies available to employees forced to retire (now including all those available under the NJLAD) and the forums in which employees can file a complaint. Before the Amendment, employees forced to retire could only seek reinstatement of employment and backpay by filing a complaint with the Attorney General.
What Should You Do?
This revision of the law should cause you to revisit any written policies or other company policies related to hiring restrictions for those over the age of 70. Now that this area of the law has changed, you will need to bring your hiring policies and practices into line with the current state of affairs.
Even if your policies and practices were not restricted in such a way, this amendment will no doubt bring the concept of age discrimination to the forefront of the minds of workers and plaintiffs’ attorneys alike – so it should serve as a good reminder for to you ensure your compliance efforts are up to date when it comes to age bias issues. In particular, you should review and revise, if necessary, your criteria for promotions and hiring to ensure age is not taken into consideration when deciding which employees to promote or hire. You should also make sure your workforce is up to date on any discrimination training, including training on implicit bias.
Employment laws in New Jersey are rapidly changing and evolving. In addition to this Amendment to the NJLAD, the governor has expressed interest to significantly expand the scope of the law in other ways. Fisher Phillips will continue to monitor any changes and provide updates as warranted, so make sure that you are subscribed to Fisher Phillips’ Insights to get the most up-to-date information direct to your inbox. Be sure to reach out to your Fisher Phillips attorney, the authors of this Insight, or any attorney in our New Jersey office should you have any questions about legal requirements.
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Effective October 1, Florida businesses will be obligated to report services received from independent contractor as a result of a new law signed into effect by Governor Ron DeSantis in June. Specifically, Senate Bill 1532 amends Fla. Stat. § 409.2576 to mandate that any “service recipient” report contractors making $600 or more per calendar year to the Florida Department of Revenue. The bill broadly defines “service recipient” as “a person engaged in a trade or business who pays an individual for services rendered in the course of such trade or business.” Therefore, independent contractors who are paid $600 or more in the calendar year are included. What do Florida employers need to know about this new law?
What Has Changed and Why?
Prior to this amendment, the law only required businesses to provide a report to the State Directory of New Hires for employees but made it optional to report independent contractors. That discretion has now been eliminated and the report is mandatory when it comes to contractors. The new law, however, includes a provision that exempts businesses from reporting employees and individuals by or under contract with a federal or state agency performing intelligence or counterintelligence functions, as the legislators realize that mandating reporting pursuant to this section could endanger the safety of the employee or individual.
This new legislation was implemented to improve Florida’s child-support collection system by making reporting requirements substantially the same for contractors as they are for employees. In doing so, this should facilitate the enforcement of child support benefits through income deduction orders, which previously could be circumvented by independent contractor pay structures.
What Do You Need to Do?
For businesses already familiar with the new hire reporting process, the process for contactors is largely the same and can be accomplished through the same online reporting tool. Below is a summary of the reporting requirements under the new law:
- A business (service recipient) must report to the State Directory of New Hires an individual who is not an employee, but who the service recipient pays $600 or more per calendar year for services rendered in the course of its trade or business.
- The following information will be required in the reporting:
- The Independent Contractor’s
- Social security number; and
- Date of birth (if available);
- The date services for payment were first rendered by the individual; and
- The name, address, and federal employer identification number of the service recipient.
- The Independent Contractor’s
- Service recipients must make the report within 20 days after the earlier of:
- The date of the first payment made which requires an information return in accordance with section 6041A(a) of the 452 Internal Revenue Code of 1986; or
- The date on which a contract providing for such payments is entered into.
- When a service recipient reports individuals electronically, the reports may be made by two monthly transmissions, if necessary, but may not be less than 12 days or more than 16 days apart.
What Should You Do?
Florida businesses that utilize independent contractors should take immediate steps to determine whether individuals will meet the $600 threshold before the end of the calendar year to ensure timely reporting occurs. Businesses that are in the process of engaging the services of new contractors need to determine whether the arrangement will trigger the $600 reporting threshold with the execution of any agreement. Finally, businesses that have not utilized the new hire reporting system in the past can register here to set up an account for electronic reporting.
We will continue to monitor for ongoing developments with the new Florida law. Make sure you are signed up for Fisher Phillips Insight System to receive the latest news. For more information, contact your Fisher Phillips attorney, the authors of this Insight, or one of the attorneys in any of our Florida offices.
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Oct. 14 is the annual deadline for employers that offer prescription drug benefits to notify Medicare-eligible employees and dependents of whether coverage under the employer’s plan is equivalent with Medicare Part D. Model notices are available online.
California Governor Gavin Newsom just signed into effect a first-in-the-nation law that specifically targets warehouse distribution centers with complicated restrictions that regulate the use of production quotas. While much of the media attention surrounding AB 701 has focused on high-profile online retailers, the broad scope of the bill signed yesterday means it will potentially apply to many employers across a wide range of industries that utilize warehousing operations and distribution centers. This new law contains a multitude of legal risks and goes into effect on January 1, 2022. If AB 701 applies to your operations, you will need to start preparing now. What do employers need to know about this significant new law?
Which Employers Does AB 701 Target?
The first step to examine is which businesses will be impacted by the new law. AB 701 targets employers that utilize “warehouse distribution centers” and that meet certain employee population thresholds.
What Is a Warehouse Distribution Center?
In summary, AB 701 broadly applies to establishments that are primarily engaged in operating merchandise warehousing and storage facilities, that sell durable and/or nondurable goods to other businesses, or that are primarily engaged in selling merchandise using non-store means, such as through the Internet or catalogs.
Rather than provide a clear definition, AB 701 cites four NAICS Codes to define a “warehouse distribution center”:
- 493110 – General Warehousing and Storage;
- 423 – Merchant Wholesalers, Durable Goods;
- 424 – Merchant Wholesalers, Nondurable Goods; and
- 454110 – Electronic Shopping and Mail-Order Houses.
It then requires employers to determine if their warehouse and/or distribution centers fit into those NAICS Codes. You should carefully review each applicable NAICS Code definition to determine if AB 701 applies to your business. The law specifically exempts establishments that qualify as Farm Product Warehousing and Storage under NAICS Code 493130.
Note that under AB 701 it is irrelevant which NAICS Code you or another entity has assigned to your establishment. If any of these definitions could apply to your establishment, your warehouse and/or distribution center qualifies.
Do You Meet the Employee Population Threshold?
If your establishment qualifies as a warehouse distribution center, you then need to determine if you meet the employee population threshold.
AB 701 applies to employers that employ or exercise control over the wages, hours, or working conditions of 100 or more employees at a single warehouse distribution center, or 1,000 or more employees at one or more distribution warehouse centers in California.
Employers must include in the population count workers who are provided through third parties, such as staffing agencies, if the employers exercise control over those workers’ wages, hours, or working conditions. They must also include in the count all employees of the “commonly controlled group” who work at distribution warehouse centers in California.
AB 701’s New Requirements
Qualified employers who use quotas must carefully follow—and quickly implement—AB 701’s new requirements.
Employers may implement quotas for their nonexempt warehouse employees, but those quotas now have specific restrictions. Under AB 701, a “quota” is a work standard assigned to an employee that the employee must complete within a defined time period or face an adverse employment action. A work standard is a requirement that the employee perform a specified productivity speed, perform a quantified number of tasks, or handle or produce a quantified amount of material.
Employers cannot require quotas that prevent compliance with meal or rest periods, use of bathroom facilities (including the time to travel to and from such facilities), or occupational health and safety laws. Additionally, the time employees spend complying with occupational health and safety laws must be considered as on task and productive for purposes of any quota — although meal and rest breaks are not considered productive time unless employees remain on call.
Written Descriptions of Quotas
Starting January 1, 2022, AB 701 requires employers to provide to each new hire a written description of applicable quotas. A compliant written description must include each work standard, the defined time period the work standard must be completed in, and any potential adverse employment actions if the quota is not met.
AB 701 also requires employers to give written descriptions of quotas to all current employees by January 31, 2022. Employers who do not already provide compliant written descriptions of quotas must act quickly to meet this deadline.
Taking Adverse Actions Against Employees Who Do Not Meet Quotas
AB 701 allows employers to take adverse actions against employees who do not meet their quotas. Still, you cannot do so if the quotas prevent compliance with meal or rest periods or occupational health and safety laws. Additionally, you cannot take adverse actions against an employee for failing to meet a quota unless the employee received the quota in writing as required by the law and discussed above.
Request for Records
Current or former employees who believe that a quota violated their right to meal or rest periods or any occupational health and safety laws can request a written description of each quota that applies to them and their work speed data over the previous 90 days. Employers must provide this information no later than 21 calendar days from the date of the request. Former employees may only make one such request. The law does not limit the number of requests current employees can make.
Notably, the law allows current or former employees to make written or oral requests. Additionally, a request for records under AB 701 does not include qualitative performance assessments, personnel records, or itemized wage statements. Employees who want that information must use procedures already in place through other Labor Code sections.
Enforcing AB 701
AB 701 also introduces many enforcement mechanisms.
Retaliation Claims, Injunctions, and PAGA Claims Are Available to Employees
The law creates new opportunities for employees to enforce the law. Of course, in doing so, the law creates new avenues for plaintiffs’ attorneys to line their pockets. First, the law presumes retaliation if employers take adverse action against employees who, in the previous 90 days, have 1) requested for the first time in the calendar year their quota and/or work speed data or 2) complained to their employers or government agencies about an alleged violation of AB 701.
Second, the law allows current and former employees to bring an action for injunctive relief for any alleged violations of AB 701. It also allows those employees to recover costs and attorneys’ fees if they prevail.
Third, the law allows plaintiffs to include AB 701 violations in PAGA actions. With that said, the law also allows employers to cure any alleged violations before plaintiffs file a lawsuit. But that may be cold comfort for employers already facing frequent PAGA shakedowns.
New State Actions
The law also creates new requirements for government agencies. The Labor Commissioner must coordinate with other government agencies to educate employees, track injury data, and enforce AB 701. The Labor Commissioner can also use already available enforcement mechanisms to enforce AB 701.
Additionally, the law requires Cal/OSHA and the Division of Workers’ Compensation to notify the Labor Commissioner if a worksite or employer has an annual employee injury rate of at least 1.5 times higher than the industry average.
What Employers Should Do Now
If AB 701 applies to you, act now to ensure compliance before the law goes into effect on January 1, 2022.
- Evaluate your current quotas. Although you likely already do this, ensure any quotas do not prevent employees from taking compliant meal and rest periods, using the bathroom, or complying with health and safety laws.
- If you utilize quotas, make sure that you create and produce written quotas for each employee. Current employees must receive compliant written descriptions of quotas by January 31, 2022. Additionally, new employees must receive compliant written descriptions of quotas at the time of hire.
- Create a process for data requests. Ensure that you have processes in place — and that you communicate those processes — for employees to request their data in writing or orally. Also ensure that you have processes in place to provide that data within 21 days of the request.
- Pause before taking adverse actions. The unlawful retaliation presumption creates significant risks for employers who want to discipline, terminate, or take any other adverse action against their nonexempt warehouse employees. Of course, employers should always ensure that their reasons for taking an adverse action are proper and well-documented. But, with this new presumption, employers should be even more careful.
We will monitor developments related to this new law and provide updates as warranted, so make sure that you are subscribed to Fisher Phillips’ Insights to get the most up-to-date information direct to your inbox. If you have further questions on how to comply with AB 701, contact your Fisher Phillips attorney, the author of this Insight, or any attorney in any one of our six California offices.
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