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Matthew M. Collins, Esq.
mcollins@bracheichler.com
973.403.3151
Anthony M. Rainone, Esq.
arainone@bracheichler.com
973.364.8372
 
Associates
Eric Magnelli, Esq.
Danielle Alvarez, Esq.
March 2014
The Brach Eichler LLC Employment Services Group is pleased to provide our clients and contacts with this month's Employment Law Update.

HR TIP OF THE MONTH
Religious Attire And Grooming Practices in the Workplace Understand Your Obligations
Although most employers understand that there are state and federal laws which prohibit religious discrimination in the workplace, they don’t always appreciate that an employee’s dress and grooming practices can trigger protections under these laws.  An employer’s failure to properly address such issues can result in a claim that the employer failed to accommodate, discriminated against and/or harassed the employee.  Examples of religious attire and grooming practices include wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman's practice of not wearing pants or short skirts); or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).  Making matters even more difficult is the fact that such protections may apply to sincerely held religious, ethical or moral beliefs and practices that are not followed by formal religious denominations and/or are not widely observed. Employers also need to understand that taking action based upon a customer’s preference is not a defense to religious discrimination claims.  This month, the U.S. Equal Employment Opportunity Commission (EEOC) issued informal guidance regarding the application of the federal discrimination law to religious attire and grooming practices in the workplace.  The guidance consists of both a fact sheet and a question and answer section.  It is recommended that employers make sure they fully understand their obligations under applicable state and federal law.
   
REGULATORY UPDATE

President Obama Directs DOL to Revise Overtime Regulations
This month President Obama signed a Presidential Memorandum directing the Secretary of Labor to revise overtime regulations so that more employees will be entitled to overtime under the Fair Labor Standards Act (FLSA).  It is expected that one of the ways the Department of Labor (DOL) will achieve the President’s goal of expanding overtime eligibility under the FLSA is by changing the duties that must be performed in order to be deemed exempt (i.e., not entitled to overtime).  Although it likely will be more than a year before revised regulations are implemented, the added publicity and focus on these classification issues could result in more employee claims under existing regulations.  As such, employers should be diligent in periodically conducting self-audits to determine if their employees are properly being classified as exempt or non-exempt. 
 
FTC and EEOC Issue Joint Guidance on Employee Background Checks
Employee background checks are lawful but heavily regulated under the Fair Credit Reporting Act (FCRA).  Background checks also can trigger claims under state and federal anti-discrimination laws.  This month the U.S. Federal Trade Commission (FTC), which enforces the FCRA, and the U.S. Equal Employment Opportunity Commission (EEOC), charged with enforcing the federal antidiscrimination laws, jointly issued guidance regarding an employer’s obligations regarding background checks.  Part of the guidance is directed at employers and another part is directed at employees.  The FTC portion of the guidance explains employers’ notice requirements both before conducting background checks and in the event any adverse employment action is taken following the background check.  The EEOC portion reminds employers not to base any employment decisions on a person’s protected characteristics that may be revealed through the background check and, further, cautions employers against asking any questions that may elicit medical or genetic (family medical) information.  Employers should make sure that background checks are performed consistently and for legitimate business reasons only.  In addition, employers should be mindful of any applicable state and/or local laws governing background checks.
 
Affordable Care Act
The Employer Mandate as of March 2014 - With the recent issuance of the final regulations on the employer mandate provision of the Affordable Care Act (ACA), and the announcement of several forms of transitional relief, large employers now have some clarity as to their obligations.  As of the date of this publication, large employers now know:
 
  • The employer mandate (which requires applicable large employers to offer minimum essential coverage to 95% of full time employees and their dependents) is effective January 1, 2015 (with the latest date to begin compliance being the plan’s anniversary date in 2015)
  • Transitional relief is offered to large employers so that for the 2015 plan year only, they only need to ensure the offer of coverage to at least 70% of full time employees, without the requirement to offer coverage to dependents
  • Transitional relief also is offered to large employers with only 50-99 full time employees so  that these employers will not be subject to the employer mandate provided they maintain the workforce size and aggregate hours of service, maintain health coverage that existed as of February 9, 2014, and they certify to the IRS that they have not restructured the workforce to avoid the employer mandate
  • The employer’s information reporting requirement has been delayed one year to 2015
  • Effective January 1, 2015, employers may not have enrollment periods that exceed 90 days
  • If not done so already, employers have until December 31, 2014 to amend their plan documents and summary plan description regarding any changes relating to the lower flexible spending account employee contribution limits
 
   
Brach Eichler Employment Services Group attorneys represent employers of all sizes in New Jersey and New York in connection with their labor and employment needs.  Our services range from compliance and counseling advice to defending employers in court against claims of wage and hour violations, unlawful employment practices, discrimination and retaliation. We encourage you to contact Brach Eichler Employment Services Group for all of your labor and employment law issues.
Matthew M. Collins, Esq.
Chair of the Employment Group
mcollins@bracheichler.com
973.403.3151

Anthony M. Rainone, Esq.
Member of the Employment Group
arainone@bracheichler.com
973.364.8372
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