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McOmber McOmber & Luber, P.C.

Business & Employment Lawyers Red Bank & Marlton New Jersey

732-842-6500
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A new regulation issued by the United States Labor Department last week expanded the amount of employees who can qualify for overtime pay.  The new regulation will take effect December 1, 2016, and updates which salaried employees are entitled to the Fair Labor Standards Act (“FLSA”) minimum wage and overtime pay protections. Previously, salaried employees earning up to $23,660 per annum were eligible for overtime pay, or time and a half, for every hour worked over forty (40) hours per week. Now in the first salary increase since 2004, salaried employees earning up to $47,476 annually will be entitled to the same benefit. Further, under the new regulations, the salary cap will be updated automatically every three (3) years, based on wage growth over time. The rule will also raise the “highly compensated employee” (“HCE”) threshold from $100,000 to $134,004.

What does this mean for employees?

There are approximately 132,000 employees in New Jersey who will qualify for these expanded FLSA protections. If you are a salaried employee in one of these states, earning less than $47,476 annually, and work more than forty (40) hours per week, you may be entitled to overtime pay.   If you earn over $47,476 annually, you may still be entitled to overtime pay.

Above the threshold, an employer must apply a “duties test” to each employee to ensure that they have the type of job which Congress meant to exclude from overtime protection. In order to meet the “duties test” and therefore be exempt from overtime requirements, the employee’s actual job duty must be to act as a true “executive,” “administrative” or “professional” employee.  Under New Jersey law and in accordance with Federal regulations, an employee whose primary duty is executive, administrative or professional in nature is classified as exempt from the overtime requirements of the FLSA. Each of these types of duties is detailed thoroughly in the FLSA.

The HCE threshold is the level above which an employee is almost presumptively unable to obtain overtime pay.  The HCE threshold of $134,004 can be paid via commissions, nondiscretionary bonuses or other non-discretionary compensation.  Once an employee reaches the HCE threshold, the duties test need not be exercised to determine whether the employee is entitled to overtime pay.  Rather, employers must complete a modified duties test where they are only required to show that the employee performs office or non-manual work, and the employee customarily performs at least one of the duties of an exempt executive, administrator or professional employee.

What does this mean for employers?

The definition of employer under the FLSA is expansive.  Employer under the FLSA is defined as “any person acting directly or indirectly in the interest of an employer in relation to an employee…” Unlike the Family Medical Leave Act, in determining who is an employer under the FLSA there is no minimum amount of employees necessary or geographical limitation. Luckily, the new regulations do not take effect for six (6) months, which gives employers time to understand and implement the rule.  Employers will have a choice under the new regulations.  They can either: (1) Raise their employees’ salaries to at least the new salary threshold; (2) Limit employees to working less than forty (40) hours per week; or (3) Pay employees overtime rates for any additional hour worked over forty (40) per week.  Employers should carefully review their present overtime and salary policies and procedures to determine which employees will be affected by the new rule.

Cherry Hill employment lawyers at McOmber McOmber & Luber, P.C. can provide guidance to employees and employers with regard to the new FLSA regulations.  Contact our offices serving Evesham Township, NJ or Middletown, NJ today, toll free at 888-396-0736 or contact us online.

In January 2014, the New Jersey legislature took a big step in protecting female employees by adding pregnancy to the list of protected classes that fall within the purview of the New Jersey Law Against Discrimination (NJLAD).

As a result of the amendment, it is now unlawful for any New Jersey employer to subject an employee to disparate treatment, hostility or retaliation because of an employee’s pregnancy.  Pursuant to the statute, “pregnancy” includes medical conditions and complications relating to pregnancy and the childbirth itself.  In other words, under the NJLAD, an employee’s pregnancy, pregnancy related complications or childbirth should not have an unfavorable impact on an employee or otherwise cause the employer to take adverse employment action against the employee (i.e., hire, fire, or promote an employee).  Pregnant employees should not be treated any differently than non-pregnant employees.  As a corollary, pregnant employees are entitled to reasonable accommodations.  The NJLAD provides a non-exhaustive list of accommodations, such as bathroom and water breaks; lifting restrictions; and modified scheduling and job duties.

So what are some common examples of pregnancy discrimination?  Pregnancy related discrimination cases typically involve employers that pay pregnant women, or women of childbearing potential, less compensation.  This may include failing to promote such employees or provide pregnancy employees with equal opportunity for advance.  In addition, during the interview process, many employees attempt to screen out women who are pregnant or likely to become pregnant in the near future.   Furthermore, a common case may involve a boss or manager that subjected a pregnant employee to increased scrutiny, criticism and harassment.  Such conduct may include verbal or physical abuse, refusing or discouraging pregnancy leave, and changing the responsibilities/demoting a pregnant employee.  Worse, some employers terminate or lay off pregnant employees (or an employee who has recently had a child) to protect the bottom-line and retaliate against an employee who takes maternity leave or complaints of mistreatment.

While New Jersey prohibits discrimination on the basis of “pregnancy,” currently there is no state law that protects an employee’s right to express milk in the workplace (i.e., breastfeed or pump breast milk).  Currently, New Jersey law merely states that “a mother shall be entitled to breast feed her baby in any location of a place of public accommodation, resort or amusement wherein the mother is otherwise permitted.”  With respect to employees, Federal Law (the Affordable Care Act)—which only applies to employers with 50 or more employees—requires employers to provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth” and “provide a place, other than a bathroom, that is shielded from view and free from intrusion.”  To date, New Jersey does not have a similar law on the books.

Late last year, however, the New Jersey Legislature introduced a proposed amendment to the NJLAD, which would require employers to provide reasonable accommodations to employees that breastfeed.  Similar to the NJLAD’s pregnancy amendment and federal law, the new law would require all New Jersey employers to provide breastfeeding women reasonable break time and access to a private room (that is not a bathroom) to express milk.

New Jersey Employment Lawyers at McOmber McOmber & Luber, P.C. Counsel Employers and Employees Regarding Pregnancy, Breastfeeding, Pumping in the Workplace. 

Our New Jersey employment lawyers at McOmber McOmber & Luber, P.C. routinely represent both employers and employees in pregnancy, breastfeeding, and pumping employment discrimination matters. With offices located in Red Bank and Marlton, New Jersey, we represent clients throughout the state. To learn how we can help, contact us at 732-842-6500 (Red Bank), 856-985-9800 (Marlton) or complete our online contact form today.

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Red Bank Office

  • 54 Shrewsbury Avenue, Red Bank, NJ 07701
    732.842.6500
    732.530.8545

Marlton Office

  • 50 Lake Center Drive Suite 400, Marlton, NJ 08053
    856.985.9800
    856.263.2450

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  • 60 Park Place Suite 307, Newark, NJ 07102
    973.878.9040
    973.310.5216

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  • 11 Broadway, Suite 615 New York, NY 10004
    929.566.1300

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  • 1650 Market Street, Suite 3600 - No. 973 Philadelphia, PA 19103
    267.777.7800

Office Locations

Red Bank Office

  • 54 Shrewsbury Avenue, Red Bank, NJ 07701
  • 732.842.6500

Marlton Office

  • 50 Lake Center Drive Suite 400, Marlton, NJ 08053
  • 856.985.9800

Newark Office

  • 60 Park Place Suite 307, Newark, NJ 07102
  • 973.878.9040

New York Office

  • 11 Broadway, Suite 615 New York, NY 10004
  • 929.566.1300

Philadelphia Office

  • 1650 Market Street, Suite 3600 - No. 973 Philadelphia, PA 19103
  • 267.777.7800

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