Our colleagues , at Epstein Becker Green, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the financial services industry: “New Jersey’s Appellate Division Finds Part C of the “ABC” Independent Contractor Test Does Not Require an Independent Business

Following is an excerpt:

In a potentially significant decision following the New Jersey Supreme Court’s ruling in Hargrove v. Sleepy’s, LLC, 220 N.J. 289 (2015), a New Jersey appellate panel held, in Garden State Fireworks, Inc. v. New Jersey Department of Labor and Workforce Development (“Sleepy’s”), Docket No. A-1581-15T2, 2017 N.J. Super. Unpub. LEXIS 2468 (App. Div. Sept. 29, 2017), that part C of the “ABC” test does not require an individual to operate an independent business engaged in the same services as that provided to the putative employer to be considered an independent contractor.  Rather, the key inquiry for part C of the “ABC” test is whether the worker will “join the ranks of the unemployed” when the business relationship ends. …

Read the full post here.

By: James P. Flynn

The New Jersey Legislature was overwhelmingly in favor of a measure that would have barred employers from obtaining social media IDs and other social media related information from employees and applicants. Click here for A2878 as passed.  But Governor Chris Christie vetoed A-2878 because it would frustrate a business’s ability “to safeguard its business assets and proprietary information” and potentially conflict with regulatory requirements on businesses in regulated industries such as finance and healthcare. Click here for the Governor’s Veto Statement. While the Governor thought the bill well-intentioned, he conditionally vetoed it for painting “with too broad a brush,” citing the trade secrets/proprietary information concern as a primary motivation: “In view of the over-breadth of this well-intentioned bill, I return it with my recommendations that it be more properly balanced between protecting the privacy of employees and job candidates, while ensuring that employers may appropriately screen job candidates, manage their personnel, and protect their business assets and proprietary information.”

The Governor specifically recommended the bill be revised to:

  • Create an exception to allow investigation of work place misconduct or unauthorized transfer of confidential or proprietary data to a personal account;
  • Add language confirming that an employer may view, access, or utilize information about a current or prospective employee that can be obtained in the public domain;
  • Carve out of the definition of “personal account” any account, service or profile created, maintained, used or accessed by a current or prospective employee for business purposes of the employer or to engage in business related communications;
  • Eliminate provisions that would create a civil cause of action for affected employees or applicants;
  • Add a proviso stating that nothing in the act shall prevent an employer from implementing and enforcing a policy pertaining to the use of an employer issued electronic communications device or any accounts or services provided by the employer or that the employee uses for business purposes; and
  • Add a proviso stating that nothing in the act should be construed to prevent an employer from complying with the requirements of State or federal statutes, rules or regulations, case law or rules of self-regulatory organizations.

Click here for the bill as revised after the Governor’s veto statement.

These last two provisos are important ones, especially for the financial services industry and the healthcare industry. They are important because FINRA, for example, has laid out certain monitoring and record keeping requirements concerning social media used to communicate with clients and prospective clients concerning potential financial transactions. See, e.g., FINRA Guidance here.

There are likewise data security requirements emerging out of HIPAA and other bodies of law that may require security and monitoring of social media. Click here for a discussion of such issues by Dan Goldman (@danielg280), legal counsel at Mayo Clinic and Advisory Board member to the Mayo Clinic Center for Social Media. In an age of BYOD (Bring Your Own Device) and the consolidation of business and personal activity to a single mobile device, failure to include such exceptions would force employers into hard choices between required monitoring and desired seamlessness of the business/personal transition.

While many states have in the last year adopted such statutes, the interplay between the Governor and the Legislature in New Jersey plays out the competing interests nicely, and hopefully starts a trend toward a more measured approach to such questions. Accommodating these competing interests is not only a legislative challenge, but is one faced by employers and businesses every day.

by Maxine H. Neuhauser and Amy E. Hatcher

On January 7, 2013, the New Jersey Department of Labor and Workforce Development (the “Department”) published in the New Jersey Register proposed new rules and notification language to implement a recently enacted law intended to fight gender inequity and bias in the workplace.  The notice of proposal is available for downloading here.

The law, which became effective on November 19, 2012, requires every employer in New Jersey with 50 or more employees to post a notice advising employees of their right to be free from gender inequity or bias in pay, compensation, benefits, or other terms or conditions of employment under particular state and federal laws.

New Jersey employers are also required to distribute a copy of the notice:

  • In English and Spanish and any other language that the employer reasonably believes is the first language of a significant number of the employer’s workforce, provided a notice has been issued in that language by the Department;
  • To all employees no later than 30 days after the notice is issued by the Department;
  • At the time of an employee’s hiring;
  • To all employees annually, on or before December 31 of each year (and the employer must obtain a written acknowledgement of receipt); and
  • At any time upon the first request of an employee.

The notice may be transmitted electronically to employees via e-mail, or via an internet or intranet site, so long as it is accessible and the employer provides notice to employees that the notice has been posted electronically.

Importantly, the notification requirements of the law are not triggered until the New Jersey Commissioner of Labor and Workforce Development issues the form of notification by regulation, which will likely take at least a few months.  Employers will have 30 days from the date of the notice of adoption in the New Jersey Register, containing the final form of the notification, to comply with the notification and posting requirements.

A public hearing on the proposed amendments and new rules is scheduled to take place on February 13, 2013, and the due date for public comments is March 23, 2013.  The Department’s forthcoming January 22 notice, which provides notice of these dates (and also corrects an error in the January 7 proposal), is available for downloading here.

For further information on other New Jersey employer posting requirements, see EBG’s Act Now Advisory entitled “Employer Posting Requirements Under New Jersey Law.”