Last month the Diane B. Allen Equal Pay Act (the “Act”) was signed into law by New Jersey Governor Phil Murphy. This marks the third time in four years that the NJ legislature has amended its Law Against Discrimination. The Act expands equal pay protections for NJ employees and increases compliance obligations on NJ employers. The Act goes into effect on July 1, 2018. In a nut shell, the Act makes it an illegal employment practice to pay an employee who is a member of a “protected class” less compensation and benefits for performing substantially similar work by employees outside of the “protected class” unless the employer can show a recognized exception. In addition, the Act imposes public reporting requirements for employers who deal with public contracts.
Last month a federal judge sitting in the Eastern District of Pennsylvania ruled that the recently enacted prohibition against asking job applicants their wage history violated the first amendment. The Philadelphia City Council enacted the ordinance to level the playing field with respect to the wage gap between men and woman. For a discussion surrounding the history and specific components of this law, please click here for my earlier post.
Philadelphia’s Wage History Law
Last month the Pennsylvania Supreme Court held that accessing any information from a cell phone without a warrant violates the fourth amendment to the constitution. The Fourth Amendment states in a nut shell that we shall be free from unreasonable searches and seizures. In this particular criminal case, the police powered on a cell phone that was recovered at the scene of an arrest. The police officers at the scene powered on the phone, determined its number, connected it to a crime and obtained a warrant to monitor a phone number that was found in the cell phone. This action ultimately led to the arrest of the owner of the cell phone that the police powered on without a warrant. The PA Supreme Court stated there is “no exception for what police or courts may deem a ‘minimally invasive search.” The Court reasoned that a person’s expectation of privacy rests in the phone itself and even went so far as to compare the opening and powering on of a cell phone as tantamount to walking through the front door of someone’s house without a warrant.
Protection of Digital Rights
The Pennsylvania Supreme Court’s decision continues the movement towards the protection of digital rights. While this case centered on criminal activity, it has clear implications in the business world. SEC or DOJ investigations, internal audits and civil litigation will be impacted by this decision. With virtually every adult in the business world possessing a cell phone, understanding one’s rights and obligations in this digital world can mean the difference between jail and freedom, termination for cause versus without cause, or turning over trade secrets when you are under no obligation to do so. The laws that encompass digital privacy are rapidly changing. Indeed, I have had several New Jersey litigation cases where opposing counsel was not aware of New Jersey’s Social Media Law that prohibits employers from requiring employees to provide access to their social media accounts (5th amendment issues). Without this information, opposing counsel was not able to access the information needed to prove her case.
Last month the Department of Labor’s Wage and Hour Division officially rejected the 6-part test it had been using to determine if an employer who had an unpaid intern was violating the Fair Labor Standards Act (FLSA). Going forward the DOL will employ a “primary beneficiary” test which is designed to focus on the specific economic realities between the employer and intern. The new test affords the DOL more flexibility in its analysis with one factor not being any more or less important than another factor.
Primary Beneficiary Test
Operators of an Internet Service
Last week on October 13 the Third Circuit Court of Appeals held that an employer must pay a non-exempt employee for all rest breaks of 20 minutes or less. This is nothing new and has been the law of the land under the Fair Labor Standards Act (FLSA) for quite some time. The FSLA was established in 1938 and established certain minimum living standard for workers such as minimum wage, time and a half and child labor standards. What is new under this decision is that the Court decided this is a bright line test and the facts surrounding each break period need not be looked at on a case by case basis. In other words, if the employer did not pay an employee for a 20 minute employee break, the analysis is over and the employer has violated the FLSA.
Employee Breaks – FLSA as a Federal Floor and State Laws
Employers are governed by both federal (FLSA) and state employment laws. Understand that the FSLA is a minimum standard, a floor, if your will, and that if a particular state has more stringent employee protection requirements, that state’s law must be complied with as well. The Department of Labor has a list that identifies (current as of January 2017) what each state requires under their employment laws regarding paid employee breaks. Click here for that state by state list.
The recent Equifax data breach has been called the worst personal data breach in history. Over 143 million people have been affected. Experts are saying that is it safer to assume you were affected and take preventative measures immediately.
Data Breach Timeline
The I-9 form is used by employers to verify both the identity and eligibility of individuals for employment in the United States. The new form goes into effect on September 18, 2017. You can download a copy of the new I-9 form by clicking here. From now through September 17, 2017, both the new form and the prior version are acceptable. After September 18, 2017, only the new form is acceptable.
Whats New in the I-9?
This week I reviewed three Non-Disclosure Agreements and was surprised when two of the NDAs were silent regarding employee solicitation. Working with clients over the years I have found that in virtually every successful company, it is almost always the employees, along with the technology, that are among the most valuable assets that need protection. Yet in the deals my clients were exploring, these valuable assets were not protected, or at least would not have been protected had my clients not shared the NDA with me before signing. First however, I want to take a step back and discuss why the NDA (also called a Confidentiality Agreement) is used, and identify common NDA scenarios.
Protect Confidential Information
The General Data Protection Regulation, more commonly known as the GDPR, replaced an inconsistent country by country approach to how companies were required to handle the personal data of European Union (EU) residents. The EU Parliament approved the GDPR last month and all companies, including US companies, must be compliant by May 25, 2018 or face heavy fines that can be up to 20 million euros or 4% of a company’s prior year world-wide revenue, whichever is higher. This is not a typo. Now that I have your attention, let’s break the GDPR down to 2 important questions.
Does my US business offer goods or services to EU residents? If the answer is yes, you are subject to the GDPR.
First, what is a EU resident? A EU resident is any individual that resides in any of the 28 member states that form the EU. This applies to anyone who resides in the EU. Citizenship is NOT required. Second, there is no requirement that the company offering the goods or services be located in the EU. All that is required is that the individual resides in the EU. The GDPR focuses on the EU resident, known as the “data subject” and not the “data controller”. Consider the following, does your company have a website? If your website collects data from a EU resident you fall under the purview of the GDPR regardless whether you have a physical business location in the EU or any business transaction was consummated between your business and the EU resident. The mere surfing of a Pennsylvania business’s website by a EU resident makes your business subject to the GDPR.