As we now enter the third month of the year, New Jersey employers should conduct an annual review of their employee handbook to ensure that they reflect new regulations and the most up-to-date court precedents.
After making any changes, it is imperative to provide updated handbooks to all employees and require written acknowledgement of receipt.
Below are seven key areas to review:
New Jersey lawmakers have not yet passed a state-wide sick leave law mandating that private employers provide workers with paid or unpaid sick leave. Nonetheless, cities and towns across the state continue to enact local ordinances, thereby creating an unruly patchwork of compliance issues.
Morristown is the latest New Jersey municipality to require employers to provide paid sick leave. If you employ people in one or more affected locations, your handbook should communicate the leave rights that have been conferred upon them. Because many local ordinances contain notice provisions, New Jersey employers should check the local laws for all municipalities in which they operate to determine if any postings are required.
Defense of Trade Secrets Act
The Defend Trade Secrets Act (DTSA) creates a federal cause of action for trade secret misappropriation. Of relevance to employee handbooks, it also contains provisions that require employers to provide a notice of the DTSA’s whistleblower immunity “in any contract or agreement with an employee that governs the use of a trade secret or other confidential information” for contracts “entered into or updated after the date of the enactment of the statute.”
Businesses that fail to comply with the provisions are barred from taking advantage of the DTSA’s exemplary damages or attorney fees provisions in trade secret misappropriate lawsuits involving workers who were not given the proper notice. To ensure compliance, in addition to posting notice of such requirements, employee handbook whistleblower policies should include the required DTSA notice.
As New Jersey’s medical marijuana program continues to develop, employers should begin considering how to address marijuana use by employees. Although the law is still developing in this area, employers are still authorized to prohibit marijuana use in the workplace and prohibit workers from being under the influence of the drug during working hours. The question is whether zero-tolerance drug use policies can be enforced when marijuana is consumed off the premises and outside of working hours pursuant to a valid medical marijuana card. Prior to developing new policies, employers are advised to consult with experienced counsel.
If your employees are browsing Facebook during work hours, it may be time to update your Internet policy. A Pew Research study found that workers subject to an employee social media policy are less likely to use social media for personal reasons while on the job. At minimum, an Internet Usage Policy should make it clear that employees are expected to use the Internet exclusively for job-related activities and that personal use is not permitted.
In addition, it is imperative to expressly state that the company reserves the right to monitor employees’ Internet activity that takes place on employer-owned devices, including the data that is composed, sent or received through its online connections.
Almost all New Jersey employers are required to provide accommodations for lactating workers. Under the Patient Protection and Affordable Care Act all employers that are subject to the Fair Labor Standards Act (FLSA) must provide unpaid, reasonable break time for an employee to express breast milk for a year after her child’s birth. Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
If you provide for arbitration as the means to resolve employment law issues and disputes, have you updated your arbitration agreement? Whether it is referenced in a handbook or a separate agreement, New Jersey law requires that there be an express notice that agreeing to arbitration foregoes the right to have the issues resolved in a court before a judge and jury. Class action waivers that may appear in such arbitration agreement are highly contested and should be carefully checked to determine legality and enforceability.
Does your handbook provide for confidentiality? Believe it or not, the NLRB under the Obama administration has held that such provisions (and others) may impair employee rights to act collectively as guaranteed by the National Labor Relations Act. Such prohibitions may evaporate as the current administration fills vacant positions at the NLRB. In any event, your handbook should be checked for content. Identified objectionable provisions should be considered and possibly modified.
The bottom line
When reviewing and updating your employee handbook, it is wise to consult with experienced legal counsel. A New Jersey employment attorney can not only verify that all necessary changes are made, but also help ensure that they are implemented properly.
Do you have any questions? Would you like to discuss the matter further? If so, please contact me, Gary Young, at (201) 806-3364