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Archive for the ‘Employment Law Blog – PA and NJ’ Category

Federal Court Dismisses Chamber of Commerce’s Injunction Against Philadelphia’s Wage Equity Law

Posted on: May 31st, 2017

By: Christopher M. Curci

The Philadelphia Chamber of Commerce’s effort to halt the implementation of Philadelphia’s new wage equity law has been dismissed – for now.

By way of background, Philadelphia is at the forefront of increased legislative measures across the country designed to combat wage equity issues. In December of 2016, the Philadelphia City Council passed an ordinance making it unlawful for employers to (1) inquire about a prospective employee’s wage history, and (2) rely on a prospective employee’s wage history in determining that individual’s wages unless the employee “knowingly and willingly discloses” such information. Similar legislation was passed in Massachusetts in 2016 and Oregon last week.

The Philadelphia ordinance was set to go into effect on May 23, 2017. However, the Philadelphia Chamber of Commerce filed a Complaint and a Motion for Preliminary Injunction in the United States District Court for the Eastern District of Pennsylvania on April 6, 2017. In response, the City filed a Motion to Dismiss, arguing that the Chamber of Commerce did not have legal standing to challenge the ordinance. The City agreed to temporarily halt the effective date of the ordinance pending the Court’s decision.

Proponents of the City’s ordinance assert that basing a worker’s wages on her previous salary serves to perpetuate gender wage inequality. The Chamber asserts that the ordinance violates the constitutional rights of its members without meaningfully advancing the City’s interest in eliminating gender discrimination wage disparities. The Chamber further states that the language of the ordinance is overly broad and vague, thereby making it unduly burdensome on employers. In its Motion for Preliminary Injunction, the Chamber stated that the ordinance would be less restrictive and constitutional if it allowed wage history inquiries, but prohibited employers from using wage history as the sole determination of a worker’s salary.

On May 31, 2017, the Court held that the Chamber of Commerce lacks standing to challenge the City’s ordinance. The Court did not address the merits of whether the ordinance passes constitutional muster.  However, that issue may still be decided on another day.  The Court’s holding was predicated on the fact that the Chamber did not identify a member who would suffer specific harm from the Ordinance.  The Court has allowed the Chamber fourteen days to file an Amended Complaint, and there is also the possibility of an individual business filing a similar Complaint.

Philadelphia employers should be aware of this litigation and the possibility of the ordinance taking effect this summer. Violations of the ordinance can result in compensatory damages, punitive damages, fines, and even imprisonment.

For any questions, please contact Chris Curci at [email protected].

The Battle for Transgendered Bathroom Rights in PA

Posted on: April 19th, 2017

UPLOADBy: Jennifer Ward

Transgender rights have become an increasing divisive issue in the United States, and the use of public bathrooms has been a key part of the controversy. The Obama administration introduced federal protections that allowed transgendered students to choose a bathroom that aligned with their gender identity and not necessarily their gender of birth. Rescinding the Obama federal protections, the Trump administration revoked federal guidelines specifying that transgender students have the right to use public school restrooms that match their gender identity. Trump administration is calling for the states and local school districts to determine their own policy of transgender bathroom use.

In February, three teens from a Pittsburgh high school won in federal court to suspend their school’s bathroom policy of ‘assigned’ use. U.S. District Judge Mark Hornak ruled in favor of the transgendered students, citing the lack of evidence that physical and visual privacy was compromised. Based on this one small victory, it is unclear whether transgendered rights can prevail without federal protection. 

If you have any questions or would like more information, please contact Jennifer Ward at 267.758.6012 or [email protected].

 

New Jersey’s Appellate Court Rules LAD Exception Applies Concerning Accommodation of Employee’s Religious Practice

Posted on: March 22nd, 2017

By: Barry S. Brownstein

In Tisby vs. Camden County Correctional Facility (CCCF), New Jersey’s Appellate Court decided in January of this year whether the trial court had properly found that the CCCF’s concerns for its safety, security and neutrality were legitimate non-discriminatory reasons why allowing plaintiff an accommodation would cause an undue hardship on defendants. New Jersey courts have not previously addressed this issue.

After reporting to work in a traditional Muslim khimar, a tight-fitting head covering, Tisby’s supervisor informed her she was not in compliance with the uniform policy and could not work unless she removed the khimar. When Tisby refused to remove her khimar, she was sent home and disciplinary charges were recommended. Even though she had not formally submitted a request, CCCF’s warden advised Tisby he considered her “position as a request for an accommodation under Title VII of the Civil Rights Act, as well as New Jersey’s Law Against Discrimination (LAD).” Following her removal, Tisby filed a complaint against the CCCF, asserting that she had been “wrongfully suspended without pay” due to her religious beliefs, in violation of N.J.S.A. 11A:2–13, and CCCF had failed to reasonably accommodate her religious beliefs pursuant to the LAD.

The core of Tisby’s complaint is a violation of her religious rights. Under the LAD, employers cannot impose any condition upon employees that “would require a person to violate … sincerely held religious practice or religious observance.” N.J.S.A. 10:5–12(q)(1). However, an exception exists if an employer cannot accommodate “the employee’s religious observance or practice without undue hardship on the conduct of the employer’s business” after putting forth a “bona fide effort” to accommodate. An “undue hardship” is defined as “an accommodation requiring unreasonable expense or difficulty, unreasonable interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system or a violation of any provision of a bona fide collective bargaining agreement.” N.J.S.A. 10:5–12(q)(3)(a).

After weighing the safety concerns, including the safety risk and the ability to hide contraband in head coverings, as well as the necessity of uniform neutrality, the trial judge determined that the CCCF had met its burden of establishing accommodation was a hardship. In addition, the CCCF’s reasons for denying an accommodation were not pretextual. Therefore, Tisby failed to overcome the finding of a hardship to the CCCF. Consequently, the Appellate Court held that summary judgment to CCCF had been properly entered.

Employers should be aware that this exception exists if they cannot accommodate an employee’s religious observance or practice.

For any questions, please contact Barry Brownstein at [email protected].

Breaking News – Puzder Withdraws from Consideration to be Secretary of Labor

Posted on: February 15th, 2017

By: Paul H. Derrick

Andy Puzder, President Trump’s nominee for Secretary of Labor, has withdrawn his name from consideration after being plagued by criticism since his nomination. Union leaders and prominent Democrats have been among his staunchest critics. Puzder’s decision to step down comes a day before his Senate confirmation hearing was set to begin. Just hours before the announcement of his withdrawal, media outlets had begun reporting that Republican officials advised the White House that Puzder lacked the votes needed for confirmation because at least four GOP senators intended to break ranks and vote against him. It remains to be seen who President Trump will nominate in his place.

For any questions, please contact Paul Derrick at [email protected].

Be on the Lookout for Minimum Wage Increases in 2017

Posted on: December 20th, 2016

 By: Brad Adler and Agne Krutules

As we enter into 2017, employers should remember that, while the federal minimum wage remains at $7.25, many state and local jurisdictions have passed legislation that will increase their respective minimum wage in 2017.

Below is a list of the states and some of the major local governments that will be increasing their minimum wage in 2017. Of course, if you have employees working within any of these jurisdictions, it is important that you pay them in accordance with the state or local law.

Jurisdiction Current Min. Wage Planned Min. Wage Effective Date
Alaska $9.75 $9.80 January 1, 2017
Arizona $8.05 $10.00 January 1, 2017
City of Flagstaff, AZ $8.05 $12.00 January 1, 2017
Arkansas $8.00 $8.50 January 1, 2017
California* $10.00 $10.50 January 1, 2017*
Berkeley, CA $12.53 $13.75 October 1, 2017
Cupertino, CA $10.00 $12.00 January 1, 2017
Emeryville, CA $13.00 $14.00 July 1, 2017
Los Altos, CA $10.00 $10.50 January 1, 2017
Los Angeles, CA $10.50 $12.00 July 1, 2017
Los Angeles County, CA $10.50 $12.00 July 1, 2017
Mountain View, CA $11.00 $13.00 January 1, 2017
Oakland, CA $12.55 $12.86 January 1, 2017
Palo Alto, CA $11.00 $12.00 January 1, 2017
Pasadena, CA** $10.00 $10.50 July 1, 2017
Richmond, CA $11.52 $12.30 January 1, 2017
San Diego, CA $10.50 $11.50 January 1, 2017
San Francisco, CA $13.00 $14.00 July 1, 2017
San Jose, CA $10.30 $10.50 January 1, 2017
San Mateo, CA $10.00 $12.00 January 1, 2017
Santa Clara, CA $11.00 $11.10 January 1, 2017
Santa Monica, CA $10.50 $12.00 July 1, 2017
Sunnyvale, CA $11.00 $13.00 January 1, 2017
Colorado $8.31 $9.30 January 1, 2017
Connecticut $9.60 $10.10 January 1, 2017
District of Columbia $11.50 $12.50 July 1, 2017
 Florida $8.05 $8.10 January 1, 2017
Hawaii $8.50 $9.25 January 1, 2017
Chicago, IL $10.50 $11.00 July 1, 2017
Cook County, IL $8.25 $10.00 July 1, 2017
Johnson County, IA $9.15 $10.10 January 1, 2017
Polk County, IA $7.25 $8.75 April 1, 2017
Wapello County, IA $7.25 $8.20 January 1, 2017
Maine $7.50 $9.00 January 1, 2017
Portland, ME $10.10 $10.68 January 1, 2017
Maryland $8.75 $9.25 July 1, 2017
Montgomery County, MD $10.75 $11.50 July 1, 2017
Prince George County, MD $10.75 $11.50 October 1, 2017
Massachusetts $10.00 $11.00 January 1, 2017
Michigan $8.50 $8.90 January 1, 2017
Missouri $7.65 $7.70 January 1, 2017
Kansas City, MO*** $7.65 $9.82 January 1, 2017
Montana $8.05 $8.15 January 1, 2017
New Jersey $8.38 $8.44 January 1, 2017
Albuquerque, NM**** $8.75 $8.80 January 1, 2017
Bernalillo County, NM $8.65 $8.70 January 1, 2017
Las Cruces, NM $8.40 $9.20 January 1, 2017
New York***** $9.00 $9.70 December 31, 2016
New York City, NY****** $9.00 $11.00 December 31, 2016
Nassau, Suffolk, and Westchester Counties, NY $9.00 $10.00 December 31, 2016
Ohio $8.10 $8.15 January 1, 2017
Oregon******* $9.75 $10.25 July 1, 2017
South Dakota $8.55 $8.65 January 1, 2017
Vermont $9.60 $10.00 January 1, 2017
Washington******** $9.47 $11.00 January 1, 2017

 

* Although the statewide minimum wage will increase from $10.00 to $10.50 as of January 1, 2017, employers with 25 or fewer employees will receive a one-year reprieve and will not face the statewide increase in 2017.

** In Pasadena, employers with 25 or fewer employees will face a minimum wage increase to $10.50 as of July 1, 2017, while larger employers will face an increase from $10.50 to $12.00 as of the same date.

*** The Kansas City minimum wage was slated to increase to $9.82 on January 1, 2017, but is stalled due to pending court challenges. The Missouri Supreme Court is expected to soon rule on the issue. The same holds true for the St. Louis minimum wage, which was scheduled to increase to $10.00 as of January 1, 2017.

**** However, if the employer provides healthcare and/or childcare benefits to the employee during any pay period and pays an amount for these benefits equal to or in excess of an annualized cost of $2,500, the minimum wage will increase from $7.75 to $7.80.

***** For fast-food employers outside of New York City, the minimum wage will increase from $9.75 to $10.75 on December 31, 2016.

****** For businesses with less than 11 employees, the minimum wage will increase from $9.00 to $10.50. For fast-food establishments in New York City, the minimum wage will increase from $10.50 to $12.00 on December 31, 2016.

******* For employers within the state’s Urban Growth Boundary, the minimum wage increase on July 1, 2017 will be from $9.75 to $11.25. For employers in frontier counties, the minimum wage increase on July 1, 2017 will be from $9.50 to $10.00 per hour.

******** Seattle employers with 500 or more employees will see an increase in their minimum wage from $13.00 to $15.00 on January 1, 2017. The SeaTac minimum wage applicable for hospitality and transportation workers will increase from $15.24 to $15.35 as of January 1, 2017. In Tacoma, the minimum wage will increase from $10.35 to $11.15.

The minimum wage for federal contractors covered by those regulations and Executive Order 13658 (primarily those with Davis-Bacon Act and Service Contract Act contracts) will increase from $10.15 to $10.20 effective January 1, 2017.