Category Archives: In The Workplace

FAA Issues Proposed Regulations on the Commercial Use of Drones

By James Boyan, Esq.
jboyan@pashmanstein.com

On February 15, 2015, the Department of Transportation – Federal Aviation Administration (“FAA”) proposed a set of regulations that would allow drones to be used for commercial purposes.  The proposal would allow businesses to use small unmanned aircraft systems (i.e., drones) that weigh less than 55 pounds during daylight hours (i.e., official sunrise to official sunset, local time).

Under the proposed rules, the person actually flying the drone would be known as an “operator.”  To be certified as an operator, an individual would have to be at least 17 years old and pass an “initial aeronautical knowledge test” at an FAA-approved testing center.  The fee for obtaining an operator’s certificate will be approximately $200.  To maintain the certification, an operator will have to pass the FAA’s knowledge test every 24 months.  However, a drone operator would not be required to obtain any further certifications such as a pilot’s license.

The proposed regulations will require operators to maintain a “visual line of sight” of the drone at all times.  The rules would allow, but not require, and operator to work with a visual observer who would maintain constant visual contact with the aircraft.  However, the operator would still need to be able to see the drone at all time with unaided vision (except for corrective lenses).  A first-person view camera will not satisfy the line of sight requirement in the proposed regulations but a camera could be used as long as the sight requirement is otherwise satisfied.

The proposed regulations contain the following restrictions on the commercial use of drones:

  • The operator must discontinue flight when continuing to fly would pose a hazard to other aircraft, people or property;
  • A drone may not fly over people, except those directly involved with the flight;
  • Drone flights should be limited to 500 feet in altitude and no faster than 100 mph;
  • Operators must keep their drones out of airport flight paths and restricted airspace and obey any FAA temporary flight restrictions; and
  • Operators are not permitted to drop any objects from their drones.

The FAA’s proposed regulations will also require operators to:

  • Conduct a pre-flight inspection of the drone prior to each operation;
  • Report any accidents that result in injury or property damage to the FAA; and
  • Ensure that all drones have appropriate aircraft markings.

The FAA is also considering a separate set of rules for “micro-drones” (i.e., drones that weigh less than four pounds). Under those rules, operators would not have to pass any kind of test. Instead, they would only have to submit a written statement to the FAA certifying that they are familiar with basic aviation safety measures.

Businesses that currently use drones or plan to do so in the future should closely monitor the FAA’s proposed regulations.

Small Print Weighs Big

Pashman, L.By Louis Pashman, Esq.
lpashman@pashmanstein.com

In June of last year, the Appellate Division of the Superior Court issued what many considered a surprising decision.  In Rodriguez v. Raymours Furniture Corporation, 436 N.J. Super 305 (App.Div. 2014) the court held that the two year statute of limitations for claims of retaliatory discharge and disability discrimination can be modified by agreement.

In August 2007 Mr. Rodriguez submitted an application for employment with Raymour & Flanigan.  Just above the application signature line the applicant is advised to read the application carefully, that it will become part of his employment record.  It went on to say, in all capital letters that “any claim or lawsuit relating to my service with Raymour & Flanigan must be filed no more than six (6) months after…the subject of the claim or lawsuit.”  It specifically waived any contrary statute of limitations.

On April 5, 2010, Rodriguez was injured on the job.  He returned to unrestricted duties on September 28, 2010.  On October 1, 2010, he was laid off, along with 101 others, as part of a reduction in force.  Rodriguez claimed retaliation for filing a workers’ compensation claim and discrimination because of his disability.  He filed suit nine months after the alleged wrongful termination.  His suit was dismissed because of the six month limitation.

The court thoroughly examined several legal issues involved.  Among the more critical, the court determined:

  1. The application that created the six month limitation was a contract of adhesion, it was part of a non-negotiable form;
  2. The two year statute of limitations can be modified if the limitation period is reasonable and does not violate public policy;
  3. The provision was not unconscionable. It was set forth in large type, clearly, and Rodriguez was under no time pressure to sign (he took it home before signing).  Therefore, notwithstanding that it was an adhesive provision, it was enforceable.

As I said at the outset, many were surprised at this result, but stay tuned, the New Jersey Supreme Court has agreed to review the decision.

Social Media and Technology in the Workplace

By James W. Boyan III, Esq.

jboyan@pashmanstein.com

On September 19, 2014, Maxiel Gomez and I presented a seminar entitled “Social Media and Technology in the Workplace” at the New Jersey Corporate Counsel Association’s Annual Conference.  The seminar drew a strong turnout which shows that social media is still a hot button issue for many employers.  For those who were unable to attend the conference, here are some of the key takeaways:

  • The National Labor Relations Board – Office of the General Counsel (“NLRB”) has issued guidance concerning social media policies promulgated by employers;
  • The NLRB takes the position that certain provisions found in social media policies violate Section 7 of the National Labor Relations Act (the “Act”);
  • The NLRB has brought enforcement actions against several employers who have terminated employees for allegedly engaged in “concerted activity” on a social media site;
  • Many states, including New Jersey, have enacted password protection laws that prevent employers from demanding that an applicant or employee disclose a social media password;
  • Employers should be careful that they are not considering information disclosed on social media about an applicant’s membership in a protected class when they make employment decisions;
  • Employers can monitor social media to investigate whether employees are engaged in fraudulent or disloyal conduct; and
  • Employers should review their social media policies to ensure that they comply with the law and be cautious when they seek to discipline an employee for violating a social media policy.

Best Practices for Verifying Employee Work Eligibility While Avoiding Discrimination Issues

By Eleanor Lipsky, Esq.
elipsky@pashmanstein.com

When hiring new employees, employers should be careful to comply with laws prohibiting the hiring of undocumented immigrants, while also ensuring that no discrimination on the basis of national origin or citizenship occurs.

The Immigration and Nationality Act (INA) is a federal law that makes it illegal for employers to knowingly hire persons who are not authorized to work in the United States.  Under the INA, an employer must check documents to confirm the identity and work eligibility of all persons they hire and complete a Form I-9, the Employment Eligibility Verification form, for every new employee, whether they are a citizen or not.  Failure to comply with the Form I-9 can result in sanctions against employers.  Further, the INA makes it unlawful for an employer to continue to employ an undocumented worker or one who loses their authorization to work at a later point.

However, the INA also prohibits discrimination when hiring and firing on the basis of one’s national origin or citizenship status.  The U.S. Department of Justice’s Office of Special Council for Immigration-Related Unfair Employment Practices offers suggestions for how an employer can avoid committing any immigration-related discrimination.[1]  For instance, an employer should allow an employee to choose which documents to present for the Form I-9, as long as it satisfies the requirements of the Form.   An employee would have a case against an employer who demanded to see a certain type of document, such as a green card, if the employee already provided appropriate documents otherwise.

Most importantly, an employer should treat all applicants the same and not make any assumptions when interviewing, offering a job, and when verifying work eligibility.  Any type of “citizens only” hiring policy or requirement that applicants have a particular immigration status is usually illegal.  The same guideline applies to a firing decision — for example, an employer cannot choose to fire or lay off someone solely because they only have a temporary work permit in favor of someone with legal permanent residency.

Keep in mind that an employee or prospective employee is protected under the INA if he or she is a U.S. citizen, national, permanent resident, temporary resident, refugee, or asylee.   Remember that U.S. citizenship or nationality belongs to any individual born of a U.S. citizen, along with all persons born in Puerto Rico, Guam, the Virgin Islands, Northern Mariana Islands, American Samoa, and Swains Island. Further, employers should recognize that refugees or those with recently granted asylum may not yet have Social Security numbers.   This could become a particular concern if an employer uses an on-line application system requiring such information because it could create an unnecessary hurdle for individuals who are in fact authorized to work in the United States, and thus should be avoided.

Employers should review their hiring and work eligibility verification policies in order to ensure compliance and avoid any potential fines and penalties imposed by the INA.

[1] See http://www.justice.gov/crt/about/osc/.

 

January “To Do” Items for New Jersey Employers

By CJ Griffin, Esq.
cgriffin@pashmanstein.com

As 2013 comes to a close, New Jersey employers should be aware of important changes coming in the New Year.  First, New Jersey joins a number of states and jurisdictions that are increasing the minimum wage rate for employees. Effective January 1, 2014, New Jersey’s minimum wage will jump to $8.25 per hour.  Per the Constitutional Amendment passed by voters in November, the minimum wage will continue to automatically increase each year based on the rate of inflation.

Second, as of January 6, 2014, all New Jersey employers with 50 or more employees (regardless of whether those employees work in New Jersey offices or out-of-state offices) must conspicuously post a gender equity notice in a designated location within the workplace that is accessible to all employees. The gender equity notice advises employees that they have the “Right to be Free of Gender Inequity or Bias in Pay, Compensation, Benefits or Other Terms and Conditions of Employment” under both federal and state law.  Employers must also distribute a copy of the notice to all current employees by February 5, 2014.  Additionally, a copy of the notice must be immediately provided to any and all employees hired after January 6, 2014.  Going forward, employers must distribute the gender equity notice to all employees on December 31st of each calendar year.

A copy of the notice can be located on the New Jersey Department of Labor and Workplace Development’s Website.

NJ and NY Pending Legislation Expands Protections to Pregnant Workers

By Maxiel Gomez, Esq.
mgomez@pashmanstein.com

New Jersey

On September 30, 2013, legislation was introduced in New Jersey that would prohibit workplace discrimination against women because of pregnancy, childbirth and related medical condition.   Senator Loretta Weinberg, D-Bergen, sponsored the bill (S-2995) that would amend the New Jersey Law Against Discrimination to include pregnancy as a protected class.  Specifically, the bill provides that it shall be unlawful for an employer to treat a woman affected by pregnancy in a manner less favorable than the treatment of other persons not affected by pregnancy but similar in their ability or inability to work.  In the past, employees alleging discrimination based on pregnancy were treated as disability or gender discrimination claims.  However, if enacted, this bill would explicitly prohibit discrimination based on pregnancy.  In addition to preventing discrimination, the bill would also require that employers make reasonable accommodations for an employee’s needs related to the pregnancy when, with the advice of a physician, the employee requests an accommodation.

New York

On September 24, 2013, the New York City Council amended the New York City Human Rights Law (NYCHRL) to prohibit discrimination based on pregnancy, childbirth or a related medical condition.  Although pregnancy was already a protected status under NYCHRL, the amendment created an additional right of action against employers that fail to provide a reasonable accommodation to pregnant women. The Council’s report described reasonable accommodations to include bathroom breaks, leaves of absence for disability arising from childbirth, periodic rest and assistance with manual labor. The bill becomes effective 120 days after enactment if approved by the Mayor’s office.  The bill is  expected to be signed into law effective early 2014.