Do Not Kiss Your Employees (Whether They’re Irish or Not)

Happy St. Patrick’s Day! In this edition, we’ll be discussing new federal legislation banning mandatory arbitration of sexual harassment/assault claims (coinciding with Women’s History Month and a belated International Women’s Day), COVID-19 vaccine mandates, and retirement. But first, what does Encanto have to do with employment law? We’re glad you asked . . .

We Don’t Talk About Sexual Harassment (no, no, noooo)

A New Jersey court recently upheld a regulation that permits state employers to “request” that victims of sexual harassment keep quiet about their claims. The plaintiff argued that the regulation was unconstitutional, because a “request” to not speak about her claim was just as bad as coercing her to not speak up at all. The court disagreed, pointing to the fact that the law allows a request (as opposed to a mandate) of silence. Ultimately, the court held that the regulation promoted an investigatory process that was fair to both the accuser and the accused.

When asked his thoughts on the court’s claim that an employer’s request not to do something would easily be understood by employees as not being a mandate, the plaintiff’s lawyer said, “clearly the justices have never been married” (we’re kidding – he didn’t say that . . . at least not publicly).

If You Do Talk About Sexual Harassment, You Can’t Be Forced To Tell It To An Arbitrator

It’s official – President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (say EFASASHA three times fast) into law, ending forced arbitration in workplace sexual assault and harassment claims (we previously discussed this!). Employees now have the exclusive right to choose arbitration if they want it, but employers can’t require it.

If you have a mandatory arbitration clause in your offer letter or employment agreements, pull out the red pen – let’s get to work. No mistakes. Oh yea, and the House just introduced a bill that would ban all arbitration clauses in employment agreements. Stay tuned!

Hit Me With Your Best Shot – Warmer Weather Means More Vaccine Mandates for Healthcare Workers

Healthcare workers in New Jersey – it’s almost time to get boosted. Governor Murphy signed an Executive Order this week requiring healthcare facilities subject to the federal Centers for Medicaid & Medicare Services (CMS) rule to implement policies that require certain workers to complete their first set of COVID-19 vaccines by May 11, 2022. Workers must get a booster by April 11, 2022, or within three weeks of becoming eligible, whichever is later. Healthcare employers must implement a disciplinary policy outlined in prior Executive Order No. 283 within two weeks of the relevant deadlines. Penalties “may” be imposed for any employer who fails to comply, which “may” include a charge for a disorderly persons offense. So healthcare employers, if you permit your employees to remain unvaccinated, you do so at your own risk.

For those in NYC, NYC has lifted its vaccine mandate. No more frantic scrolling on your phone at the check-in desk for your vaccine card.

Retirement Plan Mandate Deadlines Comin’ In Hot

New Jersey’s deadline for employers to implement a retirement plan pursuant to NJ’s Secure Choice Savings Act is March 28, with employers having nine months from then to complete their roll out. As a refresher, employers with 25 or more employees who have been in business for at least two years must either implement a Secure Choice Program or offer a private retirement plan to its employees. Here is a breakdown of the Act:

  • New employees must be enrolled within three months of their date of hire;
  • 3% of pretax earnings must automatically be withheld for those who don’t opt out of the Program;
  • Employers cannot match contributions;
  • The maximum contribution for employees 50 and over is $7,000; and,
  • Employers are subject to penalties of $100 per employee in beginning phases of the Program, increasing to $250 per employee for the third/fourth years, and $500 per employee for the fifth year and beyond.

Employers who collect employee contributions, but fail to remit contributions to the program, are subject to a $2,500 penalty for a first offense and $5,000 for each subsequent offense. So if you haven’t planned this out yet, you have twenty-five days to do so. Ready, set, go!

New York rolled out a similar plan under the New York State Secure Choice Savings Program. What we know so far is that employers are not required to contribute to the plan or otherwise pay any costs other than the administrative fees. Upon enrolling, employees will contribute 3% of their wages but can modify their contribution levels. We’re still waiting on more details about when the enrollment period will begin as well as any compliance/enforcement requirements.

Enjoy the warmer weather (even though we still see some snow on the ground . . . we see you fake Spring), and, as always, drink responsibly if you’ve got questions – you know we’ve got answers.

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Lawyering differently.