STATE AND FEDERAL GOVERNMENTS TAKE STEPS TO AMEND AND CLARIFY EMPLOYMENT RIGHTS LAWS
By: Gary Sarno, Winter 2004
Two recent developments in the area of employment law have created a considerable impact on the responsibilities of employers in protecting the rights of current and potential employees. The first concerns the most recent amendment to the Conscientious Employee Protection Act (CEPA), signed into law by Governor McGreevey on September 14, 2004. Under CEPA, or the New Jersey “Whistleblower” statute as it is more commonly known, employers are now required, in addition to prominently posting notice of their employees’ protections, obligations, rights and procedures under CEPA, to annually distribute such notices to each employee. The notices can be in writing or sent electronically and must be in English and Spanish, as well as any other language spoken by a majority of the employer’s employees.
Employers who are unsure as to the proper form to use for compliance under CEPA can obtain, for a fee, copies of an approved form of notice from the New Jersey Commissioner of Labor. The approved forms can, at the request of the employer, be provided in a language other than English or Spanish.
The new requirement of annual distribution of notices under CEPA does not apply to all employers. Those employers with less than 10 employees are exempt from the obligation to distribute the notices. However, the exemption does not apply to the continued requirement, applicable to every employer in New Jersey, to conspicuously display the notice at the workplace.
The second important development can be found on the federal level and is a direct result of the impact of the war in Iraq on our nation’s workforce. On September 20, 2004, the U.S. Department of Labor (USDOL) issued a set of proposed regulations designed to help both employees and employers understand their rights and obligations under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA was enacted by Congress in 1994 to protect the employment rights of our military men and women once they return from military service to civilian life. The purpose of the new regulations is to help clarify the often confusing language found in USERRA in light of their increased applicability in the face of the largest mobilization of National Guard and reservists since World War II.
In order to accomplish its goal, the USDOL issued the regulations in aion and answer format, using plain language instead of legalese. They are designed to explain how the many goals of USERRA shall be implemented, including the prevention of discrimination against current employees and job applicants based on their military service; the withholding of paid leaveand other earned benefits and promotions from service members during their time away from civilian employment; and the protection of the rights of service members to report back to their civilian jobs after their military service has concluded.
In addition to serving as a guide to employees of their rights under USERRA, the proposed regulations are a useful roadmap for employers who are unsure as to what actions they are permitted to take when confronted with a current or potential employee who is suddenly called upon to satisfy a military obligation. They explain, among other things, the types of employers, employees and service activities covered under USERRA; the type of notice required to be given to an employer by an employee leaving for military service; the procedures to be taken for seeking reemployment upon completion of military activity; the defenses to reemployment given to employers upon completion of the employee’s military service; and the benefits that employers must confer upon returning employees.
Since the USDOL has declared its intention to vigorously enforce the protections granted under USERRA, it is certainly in the best interest of employers to review the regulations in order to prevent potential employee complaints and to be in a position to proffer a proper defense if such a complaint is actually filed.
It is important to note that the regulations are proposed and therefore subject to revision by the USDOL. The regulations can be obtained or reviewed by visiting www.regulations.gov and clicking on the appropriate link. Comments on the regulations may be submitted through November 19, 2004 at the website.
This publication is intended for general information purposes only and does not constitute legal advice. The reader should consult legal counsel to determine how the law may apply to specific situations.
Two recent developments in the area of employment law have created a considerable impact on the responsibilities of employers in protecting the rights of current and potential employees. The first concerns the most recent amendment to the Conscientious Employee Protection Act (CEPA), signed into law by Governor McGreevey on September 14, 2004. Under CEPA, or the New Jersey “Whistleblower” statute as it is more commonly known, employers are now required, in addition to prominently posting notice of their employees’ protections, obligations, rights and procedures under CEPA, to annually distribute such notices to each employee. The notices can be in writing or sent electronically and must be in English and Spanish, as well as any other language spoken by a majority of the employer’s employees.
Employers who are unsure as to the proper form to use for compliance under CEPA can obtain, for a fee, copies of an approved form of notice from the New Jersey Commissioner of Labor. The approved forms can, at the request of the employer, be provided in a language other than English or Spanish.
The new requirement of annual distribution of notices under CEPA does not apply to all employers. Those employers with less than 10 employees are exempt from the obligation to distribute the notices. However, the exemption does not apply to the continued requirement, applicable to every employer in New Jersey, to conspicuously display the notice at the workplace.
The second important development can be found on the federal level and is a direct result of the impact of the war in Iraq on our nation’s workforce. On September 20, 2004, the U.S. Department of Labor (USDOL) issued a set of proposed regulations designed to help both employees and employers understand their rights and obligations under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA was enacted by Congress in 1994 to protect the employment rights of our military men and women once they return from military service to civilian life. The purpose of the new regulations is to help clarify the often confusing language found in USERRA in light of their increased applicability in the face of the largest mobilization of National Guard and reservists since World War II.
In order to accomplish its goal, the USDOL issued the regulations in aion and answer format, using plain language instead of legalese. They are designed to explain how the many goals of USERRA shall be implemented, including the prevention of discrimination against current employees and job applicants based on their military service; the withholding of paid leaveand other earned benefits and promotions from service members during their time away from civilian employment; and the protection of the rights of service members to report back to their civilian jobs after their military service has concluded.
In addition to serving as a guide to employees of their rights under USERRA, the proposed regulations are a useful roadmap for employers who are unsure as to what actions they are permitted to take when confronted with a current or potential employee who is suddenly called upon to satisfy a military obligation. They explain, among other things, the types of employers, employees and service activities covered under USERRA; the type of notice required to be given to an employer by an employee leaving for military service; the procedures to be taken for seeking reemployment upon completion of military activity; the defenses to reemployment given to employers upon completion of the employee’s military service; and the benefits that employers must confer upon returning employees.
Since the USDOL has declared its intention to vigorously enforce the protections granted under USERRA, it is certainly in the best interest of employers to review the regulations in order to prevent potential employee complaints and to be in a position to proffer a proper defense if such a complaint is actually filed.
It is important to note that the regulations are proposed and therefore subject to revision by the USDOL. The regulations can be obtained or reviewed by visiting www.regulations.gov and clicking on the appropriate link. Comments on the regulations may be submitted through November 19, 2004 at the website.
This publication is intended for general information purposes only and does not constitute legal advice. The reader should consult legal counsel to determine how the law may apply to specific situations.
