In light of recent changes by the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor (DOL), employers should conduct a compliance check to ensure they are abiding by federal law posting requirements.
On June 2, the EEOC announced that it is more than doubling the fines for employers that violate notice posting provisions of Title VII and other statutes from $210 to $525 per violation. The EEOC said it was adjusting the penalty for inflation, in accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. Employers covered by Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act or the Genetic Information Nondiscrimination Act must post notices describing the key provisions of these acts in “prominent and accessible” spots in the workplace, according to the EEOC. The requirement applies to private employers, state and local governments, and educational institutions employing 15 or more individuals, as well as to federal contractors and subcontractors. The “EEO is the Law” poster, prepared by the EEOC, summarizes these laws and is available for free here in English, Arabic, Chinese and Spanish
In May, the DOL issued a new user-friendly Family and Medical Leave Act (FMLA) poster. Employers who are covered by the FMLA are required to display a DOL-prepared poster advising employees and applicants of the major provisions of the Act. Employers are still permitted to display the prior version of the poster (dated February 2013) or may elect to use the new poster (dated April 2016). A copy of the new poster is available for free from the DOL here.
You may recall previous blog posts surrounding lawsuits over some unpaid interns in film. (Don’t worry, this isn’t the kind of sequel where you need to have seen the previous installments). Essentially, a group of interns who worked on the Fox Searchlight Pictures’ “Black Swan” sued Fox Searchlight on the grounds that they should have been paid at least minimum wage under the Fair Labor Standards Act. Back in 2013, the plaintiff’s won. The crux of the suit provided that if employers maintain an unpaid internship program, those interns must be provided training as if in an “educational environment” and, perhaps more importantly, the intern must provide no material benefit to the employer. In other words, in order to remain unpaid, the intern cannot practically function as an assistant to company employees by getting coffee, making copies, and running errands. In our sequel, we reported that in 2015, the United States Court of Appeals for the Second Circuit vacated the “Black Swan” decision, holding that the lower court erred in focusing too much on the above criteria in determining whether an internship can be unpaid and that the current criteria is adopted from old legal precedent and “too rigid.” In our most recent installment, we introduce some new characters. Aulistar Mark worked at Gawker, a New York City based online media company and blog network (famous for blogs such as Lifehacker, Deadspin, and Jezebel), for three months in 2010. Hudson also worked at Gawker, back in 2008. Mark and Hudson, along with two other plaintiffs who have since dropped out of the suit, sued Gawker and its founder Nick Denton in June 2013. According to the complaint, their work included researching and writing stories, which was “central to Gawker’s business model as an Internet publisher.” Plaintiffs, like the Black Swan interns, argued that they should have been paid at least minimum wage under the FLSA. Recently, a New York federal judge Alison J. Nathan ruled in favor of Gawker. First, Hudson’s (and other similar plaintiffs who sought class-action certification) claims were dismissed as time-barred. More importantly, however, Mark’s claims were dismissed. “Mark’s time with [Gawker blog] Kotaku was a bona fide internship in which Mark traded his labor for significant vocational and educational benefits, and these benefits outweighed those received by defendants in the form of Mark’s work and the ability to evaluate him for future employment,” Judge Nathan wrote. Essentially, Mark benefitted from the program at least as much as Gawker. Moreover, Judge Nathan determined that while Mark did similar work done by paid employees, he failed to provide any evidence Gawker used the interns to displace paid employees or that it would’ve hired more paid employees had there been no interns. Further, Mark received credits associated with his work at Gawker. Ultimately, Marks had obtained sufficient benefits to be properly classified as an “intern,” not an “employee,” and was therefore not owed FLSA-based compensation. So what does this mean for employers? Although this case is one small step in the right direction, we nevertheless suggest you tread lightly when it comes to unpaid interns. Particularly if they are not receiving college credit. If you choose to retain unpaid interns, make sure that the interns glean some benefit from the program, and that that benefit is at least as much as yours from their work. That means acting more like an employee, and less like a coffee-courier.
As we mentioned in a previous blog post here, on September 19, 2012, New Jersey Governor Chris Christie signed into law Bill A2647, which requires an employer with fifty or more employees to provide written notice and post notices that detail an employee’s right “to be free of gender inequity or bias in pay, compensation, benefits or other terms or conditions of employment” under the New Jersey Law Against Discrimination, Title VII of the Civil Rights Act of 1964, and the Equal Pay Act of 1963.
The New Jersey Department of Labor (“NJDOL”) has issued proposed rules providing guidance about the new law, along with a sample proposed notice for posting and distribution to employees. The rules and notice are available here.
Importantly, in the proposed rules, the NJDOL clarified a significant point of confusion regarding to which entities the posting and notification requirements applied. Per the proposed rules, the law applies broadly to New Jersey employers with 50 or more employees regardless of whether those employees work inside or outside of New Jersey.
Although this new law went into effect on November 19, 2012, employers are not obligated to comply with the notice posting requirement until a final form notice and rules are issued. The comment period for the proposed rules ended on March 23, 2013. The NJDOL is expected to release a final form of the notification this summer.
The NJDOL will be posting regular updates on its website as to the status of the rulemaking.
On September 19, 2012, New Jersey Governor Chris Christie signed into law Bill A2647, which requires an employer with fifty or more employees to provide written notice and post notices that detail an employee’s right “to be free of gender inequity or bias in pay, compensation, benefits or other terms or conditions of employment” under the New Jersey Law Against Discrimination, Title VII of the Civil Rights Act of 1964, and the Equal Pay Act of 1963.
To comply with the law, the notice must be in a form issued by regulation promulgated by the Commissioner of Labor and Workforce Development (the “Commissioner”). Although the law becomes effective on November 19, 2012, the Commissioner has not yet developed the notice, nor has it made the notice available for employers. Consequently, the law’s posting and distribution requirements have not yet been triggered.
Once the Commissioner issues the notice, however, each employee must be provided with a written copy of the notice: (i) no later than 30 days after the form is issued by the New Jersey Department of Labor (“NJDOL”); (ii) at the time of the employee’s hiring, if he or she is hired after the issuance; (iii) annually, on or before December 31 of each year; and (iv) at any time upon the first request of the employee. The notice must be in both English and Spanish, as well as any other language in which the NJDOL has made the notice available and which the employer reasonably believes is the first language of a “significant number” of its workforce.
The employer may provide the written notice by (i) email; (ii) printout (“including but not limited to, a pay check insert, brochure or similar informational packet provided to new hires, an attachment to an employee manual or policy book, or flyer distributed at an employee meeting”); or (iii) through an intranet website, provided that the website is for the exclusive use of all employees, is accessible by all employees, and the employer provides notice of the intranet posting to the employees. Importantly, an employer must confirm the distribution of the notice by requiring employees to execute an acknowledgement (either signed in writing or by means of electronic verification), which confirms that the employee has received the notice and has read and understood its terms. The acknowledgement must be returned to the employer within thirty days.
Finally, in addition to distributing the written notice, the employer must post the notice in a place or places accessible to all employees in each of the employer’s workplaces.
The new law does not indicate what penalties, if any, can be imposed for a failure to comply. The NJDOL will be posting regular updates on its website as to the status of the rulemaking.