As we have pointed out before, New Jersey’s employment laws are structured in a way that makes it desirable, nearly all of the time, for plaintiffs to file their cases in state court under state law. In that way we differ from many other states, where federal law is used more frequently. That doesn’t mean that we New Jerseyans can completely ignore federal law, however. Here’s a brief run-through of some recent federal developments.
New Overtime Rules
New FLSA regulations will take effect December 1, 2016 to bring overtime rules up to date. The threshhold annual compensation for exempt employees increases from $23,600 to $47,476. As important, from now on the threshhold will be reevaluated every three years to ensure currency. Here’s the government’s summary, and our post on the topic. This would be a good time for employers to audit their payroll records to ensure compliance going forward.
Reasonable Accommodation Consisting of Unpaid Leave
Under the Americans With Disabilities Act, employees may be entitled to a reasonable accommodation of a disability to continue in their jobs. Many employers are required to provide such accommodations as long as they do not constitute an undue hardship for the business. As you might suspect, just how far an employer’s obligation to accommodate extends has been the subject of much litigation. The EEOC has recently provided enforcement guidance to indicate that employers must consider providing unpaid leave as an accommodation, even where the employee may have exhausted other statutory leave, such as under the Family a& Medical Leave Act [FMLA]. Thus, it is now possible that a disabled employee who takes the allowed 12 weeks of FMLA leave may be entitled to even more as an accommodation under the ADA. Is this a bit of regulatory overreach? It’s certainly possible, but for now employers must be aware. In that regard, they should not forget their obligations under the “interactive process.”
Defend Trade Secrets Act
In May the Defend Trade Secrets Act of 2016 was signed into law. It is, as the saying goes, complicated. In very broad outline, it established a federal cause of action for damages by the owner of a trade secret that is unlawfully taken. It also establishes a procedure for ex parte relief including seizure (recovery) of the unlawfully taken materials. Ex parte means that the trade secret owner can apply to a court without prior notice to the person who has taken the trade secrets. Although it sounds radical, ex parte relief is an accepted practice in other areas of law, such as trademark violation cases brought under the Lanham Act. The DTSA does provide protection for whistleblowers who take trade secret information and turn it over to the government or their attorneys. In that case the attorneys are required to follow certain procedures to prevent public disclosure of the confidential material until a court rules.