Employment Law This Week®: NJ’s Equal Pay Act, FLSA Opt-Ins, “Ambush Election” Rule, Guidance on New Tax Credit

Episode 115: Week of April 30, 2018

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We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! Read the firm's press release here and subscribe for updates.

This week’s stories include ...

1. New Jersey Passes Diane B. Allen Equal Pay Act

Our top story: New Jersey passes sweeping equal pay legislation. Governor Murphy has signed what some claim are the strongest equal pay restrictions in the country. The new legislation amends the state’s Law Against Discrimination to prohibit employers from paying members of a protected class less than other employees for substantially similar work. The legislation allows employees in protected classes to recoup up to six years of back pay and prohibits employers from taking action against employees who discuss wages. Denise Dadika, from Epstein Becker Green, has more:

“It is broader than the federal Equal Pay Act and many state laws, including New York, which limit the protections to sex. New Jersey law requires that employers provide equal compensation and benefits for substantially similar work. This is another departure from the federal law, which requires equal pay for equal work. Employers should work with legal counsel to conduct privileged pay equity studies to identify any wage differentials and to determine whether they can justify those wage differentials under New Jersey's law. In the event that they find unresolved pay differences, once the Act is in effect, they cannot correct those by lowering the wage of the higher earner. Going forward, employers also need to carefully document any wage differentials, whether it’s based on the hiring salary, bonuses, merit increases, or any other compensations, to demonstrate that those wage differentials were based on legitimate business reasons.”

Watch the extended interview here.  Read our Act Now Advisory.

2. Eleventh Circuit: Plaintiffs Can “Opt In” to FLSA Suits

The U.S. Court of Appeals for the Eleventh Circuit says that individuals can choose to become plaintiffs when a Fair Labor Standards Act collective action is not certified. The three-judge panel rejected a district court’s ruling that three dancers did not qualify as parties because the original lead plaintiff lost her bid for conditional class certification. As the three dancers filed written consents to join the suit, and because the lower court did not determine they were not similarly situated to the original plaintiff, the Eleventh Circuit found that their claims should not have been dismissed with prejudice.

3. NLRB GC Robb Suggests Change to Election Rule

Peter Robb, General Counsel of the National Labor Relations Board (NLRB), weighs in on the NLRB’s 2014 "ambush election" rule. Robb, who was appointed by President Trump and confirmed last year, recently suggested increasing the minimum required time between the filing of a petition and a vote on union representation, from eight to at least 12 days. Also, Robb commented that the NLRB’s regional directors should have the ability to extend hearing dates by an additional three days. He characterized these ideas as an effort to "streamline the process." The NLRB’s Request for Information on those rules closed on April 18. Close to 7,000 comments were received.

For more, click here: https://bit.ly/2r4WcBT

4. IRS Issues Guidance on New Tax Credit

The Internal Revenue Service has issued FAQ guidance on the new employer tax credit for paid family and medical leave. The Tax Cuts and Jobs Act of 2017 added the credit for businesses that voluntarily offer paid family and medical leave for employees. To receive the credit, employers must provide at least two weeks a year of paid family and medical leave to all qualifying full-time employees. The guidance defines qualifying employees, explains how the credit is calculated, and clarifies how the credit impacts deductions for wages paid to an employee on leave.

5. Tip of the Week

Lenora Billings-Harris, Diversity Strategist for Ubuntu Global, provides advice on enhancing intentional inclusion in the workplace:

So, often when I'm speaking to leaders about unconscious bias or employee engagement, they ask me the same question. That question is, ‘What can I do to be more comfortable around people different than myself?’ My answer is always the same. It's be basic. Now, ‘B BASIC’ is actually an acronym. The first ‘B’ stands for breathe. Be willing to take in the oxygen necessary for your brain's protein and glucose to get in gear and enable you to slow down, to become calm. The second ‘B’ is be the other. What I mean by that is be willing to go to places where you are the person who is different. Ask for feedback. Suspend judgment. Include others. The last letter is ‘C.’ Check your ego at the door. This is probably the hardest one, because we've convinced ourselves we're right about whatever judgments we have about other people. Be willing to check that ego at the door so that you can become more curious about people different than you. In other words, be BASIC.”

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