Law and the Workplace
Daniel Saperstein

Daniel Saperstein

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Third Circuit Nixes EEOC Retaliation Suit

Last week, in Equal Employment Opportunity Commission (“EEOC”) v. Allstate Insurance Co., No. 2-01-cv-07402 (3d Cir. Feb. 13, 2015), the Third Circuit affirmed that the defendant did not violate federal anti-retaliation laws by offering thousands of terminated at-will employees the opportunity to continue working as independent contractors in exchange for signing a release. By way … Continue Reading

Fourth Circuit Affirms Summary Judgment against EEOC in Background Check Suit

Last week, in Equal Employment Opportunity Commission (“EEOC”) v. Freeman, No. 13-2365 (4th Cir. Feb. 20, 2015), the Fourth Circuit affirmed the award of summary judgment against the EEOC in its suit alleging that the defendant’s use of credit and criminal background checks had a “disparate impact” on African-American job applicants in violation of Title … Continue Reading

N.J. High Court Adopts Faragher-Ellerth Defense for LAD Sexual Harassment Claims

Last week, in Aguas v. New Jersey, No. A-35-13 (Feb. 11, 2015), New Jersey’s high court for the first time embraced the federal Faragher-Ellerth defense for claims alleging vicarious liability for supervisory sexual harassment under New Jersey’s Law Against Discrimination (“LAD”). Under the Faragher-Ellerth analysis—which the U.S. Supreme Court crafted almost two decades ago—an employer may … Continue Reading

NJ Supreme Court Hears Argument on Whether Disgorgement of Employee’s Salary Requires Economic Damages

In Kaye v. Rosefielde, a case alleging fraud and malpractice against a former general counsel, the New Jersey Supreme Court recently heard oral arguments on whether the Appellate Division erred in affirming that economic damages are a necessary prerequisite for disgorgement of the general counsel’s salary.  The appellants have argued to the contrary that disgorgement … Continue Reading

NJ Supreme Court Considers Remittitur of Emotional Distress Award in Race Discrimination Case

The New Jersey Supreme Court has agreed to address whether a trial court erred in denying remittitur on a whopping $1.4 million award for emotional distress damages in a racial discrimination suit brought under the Law Against Discrimination.  The defendants had argued before the trial court and the appellate division that the award “shocks the … Continue Reading

NJ Supreme Court Clarifies Independent Contractor Standard under State Wage Laws

Last week, New Jersey’s highest court ruled in Hargrove v. Sleepy’s, LLC, No. A-70-12 (Jan. 14, 2015), that the so-called “ABC test” applies when determining whether a worker is an employee or independent contractor under the New Jersey Wage Payment Law (“WPL”) and Wage & Hour Law (“WHL”).  That test presumes an individual is an employee … Continue Reading

Michigan Protects Employers from Negligent Hiring and Retention Claims

On January 1, a new Michigan law took effect to protect companies that hire ex-offenders who go on to cause damage or injury during the course of their employment.  Louisiana, Georgia, Tennessee, and Texas recently passed similar laws. The Michigan law specifically provides that, in an action seeking damages for personal injury, property damage, or … Continue Reading

New Michigan Law Expands the Types of Criminal Records Applicants & Employees Can Refuse to Disclose to Employers

Existing Michigan law has served to prevent private employers from considering criminal records “set aside” by law (more commonly known as expungement) in hiring and personnel decisions. An amendment to that law, which took effect on January 12, expands the circumstances under which ex-offenders may seek to set aside their criminal records and, thus, may further … Continue Reading

SEC Approves FINRA Rule Strengthening Background Checks

The Securities and Exchange Commission (SEC) has approved a Financial Industry Regulatory Authority (FINRA) rule requiring member firms to strengthen their background investigation of applicants seeking registration.  We have detailed the requirements of the FINRA rule in our previous blog post.  The SEC has “accelerated approval” of the rule, though the agency still will accept … Continue Reading

Illinois and Chicago “Ban the Box” Laws Take Effect

Illinois’ and Chicago’s “ban the box” laws took effect on January 1.  Both laws prohibit private employers from making criminal inquiries until after an applicant has been notified of his or her selection for an interview (where the employer does not conduct an interview, it must wait until after making a conditional offer).  The two … Continue Reading

New Minnesota Expungement Law Helps Protect Employers from Liability

A new Minnesota law that took effect on January 1 expands the opportunities for ex-offenders to expunge their criminal records.  In an effort to protect employers who hire employees with expunged records, the new law provides that such records “may not be introduced as evidence in a civil litigation against a private employer . . … Continue Reading

The Top 10 Trends in New Jersey Employment Law in 2014

2014 was another busy year for developments in New Jersey employment law, including in ten key areas—whistleblowing, pre-employment inquiries/background checks, amendments to the Law Against Discrimination (“LAD”), LAD litigation, wage and hour, the Family Medical Leave Act, sick leave, states of emergency, arbitration, and “unemployment discrimination.”  Read our Top 10 newsletter to learn more about … Continue Reading

Background Checks Headline in 2014

In 2014, background checks were a hot topic in state and local legislatures.  Before this year, only 8 jurisdictions in the country had passed laws preventing private employers from asking job candidates about their criminal histories on an employment application (i.e., “banning the box”).  This year alone, however, 9 jurisdictions enacted ban-the-box laws covering private … Continue Reading

D.C.’s “Ban the Box” Law Takes Effect, OHR Issues Notice of Rights

D.C.’s Fair Criminal Record Screening Act of 2014 took effect on December 17.  The new law prevents employers with 11 or more employees in D.C. from making any criminal inquiries on an initial employment application (i.e., “banning the box”).  Once the employer has extended the applicant a conditional offer of employment, it may inquire into … Continue Reading

New Jersey’s Minimum Wage Rises to $8.38 in the New Year

Due to to an increase in the Consumer Price Index (CPI), New Jersey’s minimum wage will rise to $8.38 per hour starting January 1, 2015.  This is the second consecutive year that the state’s minimum wage will increase.  Per our prior client alert, last year New Jersey voters approved a constitutional amendment that increased the … Continue Reading

Lawsuits Grow Under “Old” Pennsylvania Background Check Law

A growing number of states and localities have enacted laws that restrict employers from considering certain types of criminal records in hiring and other personnel decisions.  Though many of these laws are more recent, Pennsylvania’s Criminal History Record Information Act (“CHRIA”) has been on the books for more than three decades.  The law, which prevents … Continue Reading

NJ Supreme Court to Rule on SOL Waiver

Last week, the New Jersey Supreme Court agreed to address whether to uphold a provision in a job application that limited the time in which an employee could sue the company to no more than 6 months after an alleged adverse employment action, notwithstanding a longer statute of limitations (in this case, the 2-year SOL … Continue Reading

NYC Council Debates Expansive “Ban the Box” Bill

A couple of months ago, we blogged about the New York City Council’s general support for a proposal that would effectively ban credit checks in hiring and other personnel decisions.  As the council continues to debate credit checks, it also is considering a mayor-backed proposal (Int. No. 318) that would remove another potential barrier to … Continue Reading

Prince George’s County “Bans the Box”

Add another locality to the growing list that have “banned the box” for private employers.  Starting January 20, 2015, employers with at least twenty-five full-time employees in Prince George’s County (MD) can no longer ask applicants about their criminal records on employment applications (i.e., banning the box) or through another medium (such as a consumer … Continue Reading

San Francisco Issues Guidance for Employers and Contractors on Fair Chance Ordinance

San Francisco has posted FAQs explaining key provisions of the city’s so-called Fair Chance Ordinance (“Ordinance”), which took effect on August 13, 2014.  The Ordinance “bans the box,” prohibiting most private employers and contractors in the city from asking job applicants about their criminal histories until after the first interview or following a conditional offer … Continue Reading

Columbia, Missouri Joins “Ban the Box” Trend

Columbia, Missouri is the latest jurisdiction to “ban the box” by prohibiting private employers from making criminal inquiries on an employment application.  The law, which took effect on December 1, 2014, only allows employers to ask about an applicant’s criminal history after the applicant has received a conditional offer of employment. Despite these prohibitions, the … Continue Reading

Rochester Issues FAQs on Newly Effective “Ban the Box” Ordinance

Rochester recently posted FAQs highlighting key provisions of the city’s “ban the box” ordinance, which takes effect today.  The new law prohibits employers from inquiring into an applicant’s criminal conviction history until after an initial employment interview or following a conditional offer of employment. For more on the Rochester law, see our prior client alert. … Continue Reading

FTC Issues Another Guide on Background Checks

As we reported in our prior alert, in March of this year, the Federal Trade Commission (“FTC”) issued a short brochure—Background Checks: What Job Applicants and Employees Should Know—on the use of background checks in hiring and personnel decisions.  This month, the FTC issued a follow-up guide—Tips for Job Applicants and Employees—that expounds on the … Continue Reading

Montgomery County “Bans the Box”

Montgomery County, Maryland is the latest jurisdiction to “ban the box” by prohibiting private employers from making criminal inquiries on the initial employment application. Montgomery’s new law takes effect on January 1, 2015 and applies to employers with 15 or more full-time employees in the County.  The law covers applicants seeking paid employment or vocational … Continue Reading
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