11.20.2024Not So Fast - Texas Court Derails DOL Rule Expanding Eligibility for Overtime PayOn November 15, a U.S. District Court in Texas put the brakes on the Department of Labor’s April 2024 Rule designed to make more employees eligible for overtime pay under the Fair Labor Standards Act. State of Texas v. United States Department of Labor; Plano Chamber of Commerce v. United States Department of Labor.
11.18.2024Third Circuit Clarifies Procedural Roadmap to Compel ArbitrationFacing a federal lawsuit, companies with agreements that mandate arbitration of disputes must decide how to efficiently obtain an order from a federal judge compelling arbitration. The Third Circuit Court of Appeals recently clarified how to do so in the District Courts in that Circuit (New Jersey, Delaware and Pennsylvania), correcting what the Court admitted was “a misstep we caused” in a prior decision.
11.05.2024Corporate Transparency Act Report for LLC Owners – Less Than One Month Until the Deadline!As a reminder, the Corporate Transparency Act (CTA) went into effect on January 1, 2024 and requires that all LLCs submit annual beneficial ownership reports to the Financial Crimes Enforcement Network (FinCEN). If your LLC was created or registered prior to January 1, 2024, you have until January 1, 2025, to file your BOI report.
10.30.20242024 Election: How Labor Law Could Shift Under Trump or Harris LeadershipThe Presidential Election is upon us with many indicators predicting a close election. The two candidates and their respective party platforms offer opposing views on many major issues. While some issues play more prominently in the press than others, issues related to Labor Law feature two vastly divergent approaches. Since President Trump already has a track record on federal labor policy and Vice President Harris signals support for President Biden’s labor policy, here are three areas in Labor Law that will be sensitive to who takes the oath of office on January 20, 2025.
10.24.2024FTC Rule On Non-Competes Is Bruised But Not Yet Beaten As FTC Appeals, While NLRB Continues To Challenge Non-CompetesIn April 2024, the FTC issued a Rule declaring invalid most existing non-compete agreements and prohibiting most employers from entering into new non-compete agreements after September 3, 2024, with few exceptions. Three lawsuits were filed challenging the FTC Rule - - two in Texas and one in Philadelphia. The Philadelphia lawsuit resulted in the court’s denying a motion to stay enforcement of the Rule on July 23, 2024. Judge Hodge then set a deadline of September 20, 2024 for the plaintiff, ATS Tree Service, to file a motion for summary judgment, a deadline that was extended twice. On October 4, ATS withdrew its Complaint, thereby ending this challenge and any right to appeal.
10.18.2024Pay Transparency Law Takes Big Step Forward – here’s what that means for employersNew Jersey moved closer to becoming the 11th state to enact a pay transparency law on Sept. 26, when the General Assembly passed A4151/S2310, which would require certain New Jersey employers to disclose their hourly wage or annual salary pay ranges and general benefit information for each job posting/advertisement. The bill would also require employers to make “reasonable efforts” to advise current employees of promotional opportunities within their organization.
10.11.202410th Birthday Wishes to the Affordable Care Act’s Employer MandateThe Patient Protection and Affordable Care Act (“ACA”) was signed into law by President Obama on March 23, 2010. ACA affected health insurance coverage, costs and preventive care. It also established the Health Insurance Marketplace allowing individuals with certain income thresholds to obtain affordable health care regardless of employment status. The Biden Administration reported that 21.3 million people selected ACA Health Insurance Marketplace coverage in the 2024 open enrollment period.
10.09.2024Three Strikes: Lessons Learned From The ILA, Autoworkers, & Actors StrikesNow that the ILA short-lived but eventful strike is over, it is important to understand what this strike and the two noteworthy strikes of last year by the Autoworkers and the Actors-Writers have in common and what we might learn from them. Technology. Or, to put it a bit more expansively, the march of advancing technology pitted against the anxieties over job loss. The Autoworkers’ union picketed in part because of job vulnerability due to the increasing market share of electric cars, which require a different process to manufacture. Actors and Writers protested the way artificial intelligence is affecting and will affect their work. The ILA struck in part due to the threat automation presents to their jobs on the docks. The strikes were all viewed as successful by the unions because of significant wage increases. But were they successful at stemming the tide of technology or have they just plugged the dam? Put another way, what can employers do to embrace technology while also embracing its employees and maintaining labor peace?
10.08.2024Should I Stay Or Should I Go: The NLRB Weighs InOn October 7, 2024, NLRB General Counsel Jennifer Abruzzo announced to her staff and the public that she intends to prosecute employers for “Stay-or-Pay” employment agreements, agreements that require a new employee to repay outlays for training if the employee leaves within a certain timeframe after being hired. The General Counsel reasons that such provisions are “presumptively unlawful” under Section 7 of the National Labor Relations Act, which protects the rights to unionize or engage in protected concerted activity, because they force employees to remain in jobs they would otherwise leave, or deter an employee from union activity so as not to risk termination and the repayment obligation.
10.02.2024New Complaint Questions the Constitutionality of the Occupational Safety and Health Review CommissionKenric Steel, LLC, a New Jersey based steel fabrication company, filed a complaint in the U.S. District Court of New Jersey alleging that the Occupational Safety and Health Review Commission (OSHRC), an independent federal commission, should not decide whether Kenric Steel, LLC has to pay $348,000 in penalties for alleged violations of the Occupational Safety and Health Act (OSH Act). The penalty assessed includes citations for willful violations.
09.13.2024Retailers Face New Compliance Requirements: Violence Prevention and Panic Buttons Under New York LawOn September 5, 2024, New York Governor Kathy Hochul signed into law the Retail Worker Safety Act (“Act” and “Legislation”), which in 6 months, will impose a series of new obligations on retail businesses operating in the State. Following California, which in July 2024 enacted legislation requiring retail employers to maintain a Workplace Violence Prevention Plan, New York’s new law is in response to the verbal harassments, threats of violence and physical violence to which retail workers are routinely exposed, according to the Act’s legislative history.
08.26.2024SIXTH CIRCUIT DECLINES TO DEFER TO NLRB DECISION CITING LOPER BRIGHTThere has been much speculation about how much deference the courts will give to federal administrative agencies,’ including the NLRB’s statutory interpretations in the wake of the Supreme Court’s June Loper Bright decision which jettisoned Chevron deference. We didn’t need to wait long to find out the 6th Circuit’s answer – none.
07.09.2024Chevron’s Passing Likely to Reshape Labor and Employment Law as SCOTUS Questions Presumption of Agency Subject Matter ExpertiseOn June 28, 2024 the Supreme Court overruled the 40-year-old landmark ruling known as Chevron, a doctrine of administrative law that has until now required courts to defer to federal agencies’ interpretations of ambiguous statutory language. By doing so, the Court has created opportunities for court challenges to agency regulations including those issued by federal labor law and equal employment law agencies.
06.25.2024SCOTUS Requires NLRB to Meet Traditional Standards for Preliminary Injunctive Relief On June 13 the U.S. Supreme Court heightened the standard a court must apply to an NLRB request for a preliminary injunction against an employer accused of violating federal labor law. In resolving a circuit split in which courts applied different tests in determining when to grant preliminary injunctive relief, the Court held that district courts should apply the traditional, four-pronged test in determining whether to grant a preliminary injunction under Section 10(j) of the National Labor Relations Act (Act). Starbucks Corp. v. McKinney.
06.21.2024The NLRB Gives An Employee Four Strikes And He's Still Not Out The National Labor Relations Act gives employees the right to engage in activities together with and on behalf of their co-workers to improve working conditions, called protected concerted activity. The question frequently arises as to the outer bounds of this right. How far can an employee take the cause?
06.17.2024Unanimous But Fractured: Supreme Court Upholds Rejection of “Trump Too Small” Trademark, With Little Guidance for the FutureLast week, the U.S. Supreme Court decided in Vidal v. Ester, 602 U.S. ___ (2024) that the federal prohibition on registering trademarks that identify a living individual without their consent does not violate the First Amendment right to free expression. Although the Justices were unanimous in the ultimate result, they disagreed dramatically as to why, ultimately providing little guidance for future cases.
05.13.2024FTC’s Final Rule on Non-Competes May Not be the Final WordIn a controversial move, on April 24, 2024 the Federal Trade Commission (“FTC”) announced that beginning September 4, 2024, it will enforce its Final Rule banning most non-compete agreements that seek to limit a worker’s ability to change jobs. The Rule also requires employers to notify those workers who have non-compete agreements that are nullified by the Rule that these agreements are no longer enforceable once the Rule takes effect; written notices must be sent no later than September 4, 2024. The exceptions to the FTC Rule are few, and extend to non-compete agreements (i) entered into with a business’s senior executives before September 4, 2024, (ii) entered into between a buyer and a seller as part of a bona fide sale of a business, or (iii) that are part of a franchisee-franchisor relationship.
03.22.2024New Jersey’s New Flood Risk Information Law Goes Into EffectBeginning on March 20, 2024, the new NJ law requires sellers of real property and landlords to make disclosures regarding known and potential flood risks in purchase and sale agreements and new leases and renewals.
Previously, sellers and landlords had no specific statutory obligation to disclose a property’s flood history to buyers and tenants or advise them if the property was located in a Federal Emergency Management Agency (FEMA) Flood Hazard Zone Area. This new requirement imposes one of the strictest requirements of potential flood risk disclosure on sellers and landlord in the nation.
03.19.2024Important Changes to the New Jersey ELEC Pay-to-Play Annual DisclosureNew Jersey has long had a requirement for business entities that hold government contracts to file a Business Entity Annual Statement (“Form BE”). The Form BE, normally due on March 30 of each year, will be due on April 1, 2024 this year, as the first business day following March 30. If your business entity received payments of $50,000 or more (in the aggregate) as a result of New Jersey government contracts during the 2023 calendar year, the Form BE must be electronically filed.
03.12.2024Activity in the Legislature Addressing Inactive Licenses and Other ReformOn January 16, 2024, Governor Murphy signed S4265/A5912 into law, reforming New Jersey’s long-standing liquor license practices. The law was enacted to provide open opportunities for new development in communities, in the hope that craft alcohol manufacturers will revitalize business districts across the state. The law aims to harmonize growth with the substantial investments of existing liquor licenses holders. Reforms include making use of inactive licenses, easing restrictions on breweries and distilleries, and creating new types of licenses.
03.05.2024With Great Caution and Deference New Jersey Courts Leave Decisions Resulting From Internal Grievance Proceedings of Universities UndisturbedOn February 16, 2024, in a published decision in Chee Ng, PH.D., v. Fairleigh Dickinson University, the New Jersey Appellate Division granted summary judgment in favor of the University against a former tenured professor who disagreed with the findings of his termination hearing. The court left the University’s decision to terminate the professor undisturbed because it is well settled that Universities have the freedom to decide who to hire, promote, or retain. A University’s – whether public or private – grievance process is entitled to deference.
03.01.2024H-1B Lottery Process Begins On March 6thOn Wednesday, March 6, 2024, USCIS will open its H-1B cap registration process for fiscal year 2025, informally known as the H-1B Lottery. Since 2020, USCIS has implemented an electronic registration system that requires the sponsoring employer to complete a few information forms and pay a registration fee. For the past three years, the registration fee was $10. For 2024, the registration fee increases to $215 for each visa beneficiary.
02.28.2024Twist & Shout: Supervisor’s Termination for Shouting Match With Subordinate Upheld Despite Alleged Whistleblowing ActivityOn February 16, 2024, the New Jersey Appellate Division in Ugarte v. Barnabas Health Med. Group, upheld the dismissal of a whistleblowing claim filed by a former supervisor. The Court affirmed the trial court’s decision dismissing the employee’s claim under the Conscientious Employee Protection Act (CEPA), finding that she was properly terminated for mistreating her subordinate. Ultimately, the supervisor could not establish a retaliation claim because there was no causal link between her termination and reporting HIPAA concerns.
02.05.2024Consistent Documentation Of Poor Performance Defeats Employee's Age Discrimination Claim On January 9, 2024, in Krassowski v. Bloomberg L.P., the New Jersey Appellate Division unanimously affirmed a trial court’s grant of summary judgment in favor of an employer that had well-documented proof of an employee’s continued failure to meet the expected level of performance for his role. The court found that the employee’s age discrimination suit faltered as he failed to demonstrate age played a role in his termination.
01.31.2024Pennsylvania Government Contractor Pay-to-Play Disclosure Deadline – February 15, 2024Under Pennsylvania's pay-to-play disclosure law, any business entity that has been awarded any no-bid contract by the Commonwealth of Pennsylvania or any of its political subdivisions must file a disclosure with the Pennsylvania Department of State by February 15, 2024.
01.24.2024USDOL Wage-Hour Division Final Rule on Independent Contractor Status Reverts to Pre-Trump Rule and Rejects “Core Factor” TestOn January 9, 2024 the U.S. Department of Labor (DOL) released a final rule that will apply beginning March 11, 2024 in determining whether a worker can be classified as an independent contractor as opposed to an employee under the Fair Labor Standards Act (FLSA). The 2024 Rule modifies Wage and Hour Division regulations by adopting an analysis that the agency claims is more consistent with judicial precedent and the FLSA’s text and purpose than the final rule issued by the agency during the final days of the Trump Administration (2021 Rule).
01.23.2024New Jersey Domestic Workers Gain Added Protections On January 12, 2024, Governor Phil Murphy signed the New Jersey Domestic Workers Bill of Rights Act (S-723/A-822), establishing a broad range of rights and employment protections for domestic workers. Domestic workers were previously excluded from the Law Against Discrimination and the New Jersey State Wage and Hour Law, leaving them without employee rights such as protections against harassment and discrimination, rest and meal breaks. The new law follows the precedent set by other states, including California, Connecticut, New York, and Massachusetts. Similar bills are pending in Philadelphia and Washington, D.C. The law will take effect in July 2024.
01.16.2024Supreme Court Agrees To Resolve Circuit Court Conflict Over Standard For Section 10(j) Injunction In Unionization Efforts Targeting StarbucksThe boiling dispute over the unionization of baristas is heading to the Supreme Court. Section 10(j) of the National Labor Relations Act authorizes federal courts to issue preliminary injunctions against employers that are allegedly violating federal labor law. This allows the National Labor Relations Board to seek this extraordinary relief at the outset of a case, before the employer can defend itself during the NLRB’s lengthy administrative process.
01.11.2024Political-Law Calendar for 2024With the new year comes an opportunity to review and re-set the political-law compliance for campaigns, PACs, lobbyists, businesses, and individuals. The following checklist provides a brief overview of upcoming dates on the political-law calendar for 2024.
12.13.2023Important Reporting Update for all LLC Owners – Corporate Transparency Act Goes into Effect January 1, 2024One of the main reasons that clients choose to form a limited liability company (LLC) is to protect themselves and their assets from the debts and liabilities that come with owning a business. Forming an LLC means that only the LLC can be held accountable for the debts and liabilities incurred by the business, thereby shielding the owners and managers from personal liability.
11.29.2023Heads Up To Group Health Plans: December 31 Gag Clause Attestation Deadline ApproachesThe Consolidated Appropriations Act of 2021 prohibits group health plans from agreeing to avoid making certain disclosures of provider-specific cost or quality-of-care information. This is referred to as the gag clause prohibition. The Act also requires health plans and insurers offering group health insurance coverage to attest annually that they are in compliance with the gag clause prohibition. The attestation requirement applies to health insurers offering group or individual coverage and to insured and self-insured group health plans, including ERISA covered plans, non-federal government plans, and church plans.
11.15.2023Ending Forced Arbitration of Sexual Harassment, Not DiscriminationArbitration agreements are a powerful tool used by many employers to compel the utilization of arbitration as a means of alternative dispute resolution. Arbitration allows the parties to a claim to resolve the dispute privately, without involvement of a court of law. The Federal Arbitration Act (FAA) strongly favors arbitration and allows courts to stay the proceedings of any claims subject to valid and enforceable arbitration agreement and to compel the parties to binding arbitration.
10.30.2023Important Changes to ELEC Pre-Election ReportingWith just over a week remaining until election day, now is the time for reporting committees, individuals and corporations, and organizations to prepare for and understand their ELEC reporting obligations. Under the Elections Transparency Act, a wider range of organizations are required to file ELEC reports, and a broader range of transactions are subject to pre-election reporting.
10.17.2023Political Law With The Simpsons - A Four Part Series By Avi KelinAs far back as 1995, The Simpsons established that you don't win friends with salad. Even though you may not make any friends with salad, it still has a monetary value. This dichotomy can actually teach us something about political-law compliance. We present to you: Political Law With The Simpsons - A Four Part Series.
09.19.2023Assessing the New Jersey Elections Transparency Act Before the 2023 General ElectionWe are now less than eight weeks out from Election Day 2023, and even less time to go before the start of vote-by-mail and early voting. This year is the first in a series of big elections: the entire New Jersey Legislature on the ballot in 2023, before the Presidential election in 2024, and the Gubernatorial in 2025.
08.31.2023Risk of Cemex Bargaining Order Raises Stakes for Employers that Commit Serious Unfair Labor Practices During Union CampaignsExpressing palpable frustration with an employer that committed many unfair labor practice charges after a union filed an election petition, and acknowledging the lack of serious disincentives to engage in unlawful behavior opposing a union campaign, on August 25, 2023, the NLRB issued a new set of rules that will apply immediately to many employers and unions locked in a unionizing campaign. The major change is that the Board has determined that it has the power to impose a bargaining order on an employer that engages in serious unfair labor practice charges during an organizing campaign despite the union’s losing a Board-supervised election and without entertaining the remedy of a re-run election.
08.29.2023The ABC’S Of The EEOC’S Proposed Regulations On Pregnancy: Accommodations In The WorkplaceEffective July 27, 2023, the Pregnant Workers Fairness Act (PWFA) requires employers with 15 or more employees, to accommodate pregnancy and pregnancy-related complications in the workplace. The Equal Employment Opportunity Commission (EEOC), which is the federal agency charged with enforcing the PWFA, recently issued proposed regulations clarifying employer obligations and employee rights under the PWFA. The PWFA requires employers to provide qualified employees and applicants with known limitations relating to pregnancy, childbirth or related mediation conditions with reasonable workplace accommodations, unless the accommodation causes an undue hardship. The key terms, underlined for clarity, are explained herein.
08.15.2023You Can Say What?! New Jersey District Court Rejects Claims of Hostile Work Environment On July 29, 2023, the United States District Court for the District of New Jersey in Tavares v. Builders FirstSource Northeast Group, Inc., granted Defendant’s Motion for Summary Judgment most notably finding that racist and sexual comments that Plaintiff used to support his claim of hostile work environment did not rise to the “severe and pervasive” standard necessary to support a claim. This case harkens back to the notorious case of Heitzman v. Monmouth County, 321 N.J. Super. 133 (App. Div. 1999), where several anti-Semitic comments were found insufficient to meet the “severe and pervasive” standard. Heitzman was of course cited by every defense lawyer for the next decade to try to defeat hostile work environment claims. So, the question becomes does Tavares mean that the New Jersey courts will become more skeptical of plaintiff’s claims and more supportive of employer defenses like in Heitzman, despite the Me Too movement and the seeming reluctance by the New Jersey judiciary to grant summary judgment to employers? The answer is context matters. There are lessons from Tavares to be sure, but it does not yet herald a major shift to employers in the New Jersey courts.
08.14.2023After the Injury: NJ District Court Reiterates Indefinite Light Duty & Unpaid Leave is Not a Reasonable AccommodationOn July 12, 2023, in Wraith v. Wayfair, Inc., the United States District Court for the District of New Jersey granted summary judgment in favor of an employer, dismissing a former employee’s claim of disability discrimination and failure to accommodate in violation of the New Jersey Workers’ Compensation Act (WCA), the New Jersey Law Against Discrimination (NJLAD) and the New Jersey Paid Sick Leave Law (PSLL) following an on-the-job injury. The District Court found that the employer did not have a duty to accommodate an indefinite light duty or indefinite leave under the law where the only information provided was a physician note indicating the employee could not return to work.
08.10.2023NLRB Applies a Shifting Burdens Analysis in Reviewing Employer Work Rules; Boeing OverruledOn August 2, 2023, the NLRB further limited employers’ flexibility in designing work rules by holding that all work rules will be reviewed on a case-by-case basis, and no work rules will get an automatic pass. The Board’s 3-1 decision in Stericycle Inc. holds that once the NLRB General Counsel proves that a work rule could chill employees’ exercise of Section 7 rights, there is a presumption that the rule is unlawful, which the employer can rebut only with proof that the work rule serves a lawful business interest, the rule advances the lawful interest, and a more narrowly tailored rule would not advance the interest.
08.08.2023NJDOL Issues Proposed Regulations Implementing N.J. Temporary Workers Bill of Rights ActOn July 21, 2023 the N.J. Department of Labor and Workforce Development (Department) issued long-awaited guidance regarding the Temporary Workers Bill of Rights Act. Certain provisions of the Act took effect on August 5, 2023. These regulations address Sections 1 through 7, and Section 10 of the Act only and are not technically binding on employers and temporary help service firms (THSFs) now since they are in their proposed form and the Department is accepting public comments through October 20; however, they provide additional guidance for employers and THSFs who are trying to comply with the provisions of the Act.
08.03.2023Entrepreneurial Opportunity Takes A Back Seat In Revised NLRB Test Of Employee Versus Independent Contractor StatusOn June 13, 2023, in a 3-1 decision, the NLRB overruled its own 2019 decision in SuperShuttle DFW and returned to the test of statutory employee status in its 2014 FedEx II decision which it terms carefully calibrated. In doing so, the Board held that the Atlanta Opera’s makeup artists, wig artists, hairstylists, and others who worked at the Opera only when operatic productions were staged are employees within the meaning of the National Labor Relations Act, and not independent contractors. The Atlanta Opera, Inc. The NLRB refused to apply the U.S. Court of Appeals 2009 ruling in FedEx I which held that entrepreneurial opportunity is an animating principle of the independent contractor test and accused the Court of misperceiving Board law. The Board decision in Atlanta Opera leaves no doubt that entrepreneurial opportunity is not a super-factor in the analysis of employee status, and is only one factor to be considered in analyzing independent contractor versus employee status. The NLRB held that its prior SuperShuttle DFW holding is no longer the law since it conflicts with common law agency principles, and U.S. Supreme Court and NLRB precedent.
08.02.2023Cleaning House: New Jersey Enacts Building Service Worker Retention Law On July 24, 2023, Governor Phil Murphy signed into law Assembly Bill 4682/Senate Bill 2389 protecting non-managerial and non-professional service workers, who work at eligible locations, from sudden and unexpected loss of employment due to changes in ownership. New Jersey’s new law is the second of its kind in the United States.
06.27.2023New York Assembly Passes Bill to Ban Non-Compete AgreementsOn June 20, 2023, the New York State Assembly passed a bill (A1278B) to make non-compete agreements unlawful. The New York State Senate previously passed the bill’s counterpart (S3100A). The bills aim to prohibit non-compete agreements and authorize covered individuals to bring a civil action against employers alleged to have violated the bills’ provisions. The bills make clear that they would ban non-competes entered into or modified after the effective date. If signed by Governor Kathy Hochul, the bills would come into effect 30 days after being signed into law. While the business community reacted with shock and anger at the bills, the proposed bills in New York follow the nationwide trend against non-competes that we have been tracking for the past several years.
06.20.2023Patience is a Virtue: NJ Appellate Division Affirms Settlement of Discipline Bars Recovery Under the NJLAD On May 1, 2023, in Onukogu v. New Jersey State Judiciary, the Superior Court of New Jersey, Appellate Division affirmed the trial court’s grant of summary judgement in favor of the employer, affirming the dismissal of the employee’s allegations of discrimination and retaliation under the New Jersey Law Against Discrimination (NJLAD). The case demonstrates how employers, when faced with employees with long-term disciplinary problems who they wish to retain, can link decisions not to discipline or terminate to a release of potential claims.
06.01.2023Non-Competes with Rank and File Employees Targeted by NLRB Challenges to non-competes by the federal government continue unabated under the Biden Administration. In the latest effort by the federal government to curtail the use of non-competes, which are traditionally governed by state law, on May 30, 2023, Jennifer A. Abruzzo, Esq., General Counsel of the NLRB, issued a memorandum attacking non-compete agreements as violative of the National Labor Relations Act (“Act”).
05.31.2023COVID-19 Flexibilities for I-9 In-Person Document Inspections Extended to July 31, 2023, but Physical Inspections of Remotely Verified Documents Must be Completed and Documented by August 30, 2023Federal law requires employers to perform in-person inspections of new employees and their documents (as well as current employees with expiring Employment Authorization Documents (EADs) to verify that they are authorized to work in the United States. Employers must fully and accurately complete a Form I-9, Employment Eligibility Verification, when they inspect the employee’s documents, within three business days of a new hire’s first day of employment (or upon the expiration of a current employee’s EAD.) Beginning in March 2020, though, employers were permitted to perform virtual, remote Form I-9 verifications and document inspections for employees working remotely due to COVID-19.
05.25.2023A Second Chance: NJ Employer Escapes Liability Where It Rectifies Discriminatory Conduct On May 17, 2023, in Schoenberg v. The Devereux Foundation, the New Jersey Appellate Division affirmed summary judgment for an employer, on a complaint filed by a former employee alleging gender and pregnancy discrimination in violation of the New Jersey Law Against Discrimination (NJLAD). The Court found that even where the employer had discriminated against the employee by revoking a job offer when it learned the employee was pregnant, the employer had rectified the situation and made the employee “whole” by reinstating the offer. The Court concluded that the employee unreasonably rejected the offer.
04.27.2023New York State Department of Labor Updates its Mandatory Sexual Harassment Policy RequirementsAs New York State employers are well aware, effective October 9, 2018, New York State Labor Law Section 201-g requires that employers adopt a sexual harassment policy and provide annual employee sexual harassment training. Employers may adopt the State’s Sexual Harassment Model Policy or establish their policy so long as it meets the State’s minimum standards for compliance, which can be found here . Alternatively, employers may utilize the State’s model sexual harassment training for annual compliance.
04.25.2023NJ District Court Awards Rule 11 Sanctions in Favor of Employer for Frivolous SuitOn March 31, 2023, the United States District Court for the District of New Jersey, in the matter of Desire v. Dreamwear Inc., imposed Rule 11 sanctions in favor of an employer based on the filing of a frivolous Second Amended Complaint. This case serves as an important reminder that filing frivolous claims will not be tolerated by the court and when warranted, employers should move for sanctions.
04.21.2023NJ District Court Upholds Employee Termination After FMLA Leave On March 31, 2023, in LeBlanc v. Thomas Jefferson University, the United States District Court for the District of New Jersey granted an employer’s motion for summary judgment, dismissing a former’s employee’s allegations of discrimination and retaliation pursuant to the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the New Jersey Law Against Discrimination (NJLAD).
04.13.2023No Signature, No Settlement: NJ Appellate Division Reiterates Settlements Reached at Mediation Absent a Signed Agreement Are Unenforceable On March 28, 2023, in a published decision in Gold Tree Spa, Inc, v. PD Nail Corp., the New Jersey Appellate Division extended the New Jersey Supreme Court’s seminal decision in Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC and confirmed that settlements reached at mediation are unenforceable when the parties do not sign a term sheet before mediation comes to a close, irrespective of whether mediation is voluntary or court-ordered. Although the Gold Tree case involved a commercial dispute, the decision contains important lessons for employers and employment law practitioners.
04.10.2023NJ Appellate Division Rules No Age or Disability Bias in Termination of 60-Year-Old EmployeeOn March 29, 2023, the New Jersey Appellate Division affirmed an employer’s win after a former employee claimed he was fired on the basis of his age and disability. In Estate of Zoto v. Cellco Partnership d/b/a Verizon Wireless, Inc., the Appellate Division ruled that where an employee offers no evidence of age discrimination and fails to submit any documentation of a medical disability to his employer, there is no violation of the New Jersey Law Against Discrimination (NJLAD).
03.29.2023NJ Appellate Division Rules Former Employee’s Cell Phone Records & Private Social Media are Not So Private AfterallOn March 16, 2023, in a published decision in Norma Davis v. Disability Rights New Jersey, the New Jersey Appellate Division ruled that a former employee’s private social media accounts and personal cell phone records are relevant and discoverable to defend against a claim of wrongful termination in violation of the New Jersey Law Against Discrimination (NJLAD), where the former employee claims the employer’s conduct subjected them to severe emotional distress.
03.14.2023To Click or Not to Click: NJ Appellate Division Reaffirms Enforceability of Electronic Arbitration AgreementsOn March 7, 2023, in Dakota Powell vs. Prime Comms Retail LLC, the New Jersey Appellate Division ruled that a former employee must arbitrate her claims of race discrimination, rather than pursue them in court due to her electronic acknowledgement of a Mutual Agreement to Arbitrate upon hiring. The decision in Powell further confirms the growing acceptance of arbitration agreements by the New Jersey courts in New Jersey Law Against Discrimination (NJLAD) cases.
02.24.2023NLRB Places NDAs and Non-Disparagement Agreements with Rank and File Employees in its Cross-HairsOn February 21, 2023, in McLaren Macomb, 372 NLRB No. 58, the NLRB made a broadside attack on precedent and confidentiality and non-disparagement provisions in severance agreements signed by rank and file employees. This far-reaching decision calls into question the enforceability of standard severance and employment agreement provisions entered into with statutory employees going forward.
02.20.2023 FEC Announces New Contribution Limits for Federal CandidatesThe Federal Election Commission has announced its inflation-adjustments for contribution limits to federal political recipients. These new limits apply to the 2023-2024 federal elections, and represent a significant increase from previous limits.
02.10.2023What The Temporary Workers' Bill of Rights Means For New Jersey EmployersOn February 6, 2023, Governor Murphy signed Assembly Bill 1474/S511, commonly referred to as the "Temporary Workers' Bill of Rights." The bill's "equal-pay-equal-benefit" provision requires that temporary workers be paid at least the same average rate of pay and equivalent benefits (or cash equivalent) as the third-party client’s permanent employees performing the same or similar work on jobs that require equal skill, effort, and responsibility. The legislation applies to workers in designated classifications, including certain workers in protective service, food preparation and serving, building, and grounds cleaning and maintenance, personal care and service, construction, production, and transportation occupational categories.
02.07.2023Pennsylvania Government Contractor Pay-to-Play Disclosure Deadline – February 15, 2023Under Pennsylvania's pay-to-play disclosure law, any business entity that has been awarded any no-bid contract by the Commonwealth of Pennsylvania or any of its political subdivisions must file a disclosure with the Pennsylvania Department of State by February 15, 2023.
01.23.2023Practical Considerations On The Speak Out ActThe Federal Speak Out Act Limits Confidentiality Over Resolved Claims Against Employers For Sexual Harassment And Assault. Here Are Some Practical Pointers For New Jersey Employers.
01.18.2023Combating Human Trafficking: New York Enacts Posting Requirements & Recognition Training for Hospitality & Transportation EmployeesOn July 20, 2022, New York State Governor Kathy Hochul signed eight pieces of legislation into law aimed to provide support and resources to victims of human trafficking. These laws impose new training requirements for employees in the hospitality and transportation industries, in addition to requiring crucial information be posted in the restrooms of human trafficking hotspots like airports, bus terminals and truck stops.
01.17.2023Beginning On April 10, 2023, New Jersey Employers Must Comply With Stricter Requirements On Mass-Layoffs And Business ClosuresIn 2020, New Jersey amended the Millville Dallas Airmotive Plant Job Loss Notification Act (referred to as the NJ WARN Act), which regulates employers implementing mass layoffs and business closures. Governor Phil Murphy placed those amendments on hold due to the Covid-19 pandemic. Three years after their enactment, on January 10, 2023, Governor Murphy passed legislation making those amendments effective on April 10, 2023. Those amendments change the landscape for those employers who are forced to close their doors or reduce their workforce.
01.09.2023Federal Trade Commission Proposes Banning Noncompete ClausesOn January 5, 2023, the Federal Trade Commission (FTC) proposed a radical and unprecedented rule that would prohibit employers from entering noncompete clauses with their workers. This follows the initiation of a landmark FTC enforcement action aimed at noncompete clauses and a larger crackdown on what the FTC perceives as unfair restrictions on competition.
12.22.2022Compliance Alert For New Jersey Employers: Updated Employment Posters issued by the DCRThe New Jersey Division on Civil Rights (DCR) recently adopted new and amended regulations concerning the "Display of Official Posters of the Division on Civil Rights” which require employers to display two updated posters in the workplace. The first poster informs employees of the prohibition under the New Jersey Law Against Discrimination (NJLAD) against discrimination and harassment in the workplace based on a protected status. The second poster informs employees of their right to take up to 12 weeks of unpaid, job protected leave in a 24 month period to care for a family member or bond with a newly born or placed child under the New Jersey Family Leave Act (NJFLA). The NJFLA applies to employers of 30 or more employees.
12.13.2022Gift Rules for Elected Officials and Government EmployeesSecret Santa, Pass the Parcel, White Elephant, Mystery Maccabee—whatever you call it, this is the season of gift giving. But private individuals, businesses, and elected officials need to think carefully before providing or accepting any gifts or other things of value this holiday season. New Jersey’s gift-and-ethics rules can restrict even such innocuous seeming items as gift baskets, meals, or entertainment—providing anything of value to an elected official or government employee can have important legal and compliance implications.
11.03.2022Timing is Everything: NJ Appellate Division Compels Arbitration of Employee’s Sex Harassment ClaimsOn October 26, 2022, the New Jersey Appellate Division in Rourke v. Herr Foods, Inc. once again confirmed that the Federal Arbitration Act (FAA) preempts the 2019 amendment to the New Jersey Law Against Discrimination (NJLAD) invalidating employment agreements that require employees to waive rights pertaining to claims of harassment, discrimination and/or retaliation. Thus, the employee was required to proceed to arbitration on his sexual harassment, sexual assault and retaliation claims.
11.01.2022New York City Salary Transparency Law Effective November 1, 2022As of November 1, 2022, employers advertising a “job, promotion or transfer opportunity” in the 5 Boroughs of New York City must state the minimum and maximum salary for the position contained in the job posting or advertisement. This law applies to all jobs that will be or can be performed, at least in part, in New York City.
10.24.2022NJEDA Opens Application Process for Studio Partner and Film-Lease Partner IncentivesNew Jersey’s commitment to growing the Garden State’s film industry continues to develop. While New Jersey tax credits have already been awarded under the New Jersey Film and Digital Media Tax Credit Program, recent changes to the law have created two new designations that are meant to encourage the development of large, long-term studio facilities—Studio Partner and Film-Lease Partner—and the applications for these designations are now live on the NJEDA website.
09.21.2022Who Can Make Political Contributions in New Jersey?Now that Labor Day is in the rearview mirror, we are only two months out from important federal and state elections here in New Jersey. In this period will come a rush of dinners, cocktail parties, and breakfasts, all with the goal of raising funds for the homestretch of the election. Before you or your business attend one of these fundraisers, it is important to understand which people and entities are legally permitted to make political contributions, and which are not.
09.15.2022Third Circuit Confirms ABC Test Applies in Wage Theft CaseIn a recent decision in Bailey v. Millennium Group of Delaware et al, the U.S. Court of Appeals for the Third Circuit confirmed that the ABC Test – long used by the New Jersey Department of Labor – sets forth the proper analysis for determining whether a worker is an employee or an independent contractor under the State’s wage and hour laws.
09.14.2022 Can Money Buy Happiness? New York Seeks to Retain Health Care Workers Through its New Bonus Initiative Last month, New York Governor Kathy Hochul announced the launch of the Health Care and Mental Hygiene Worker Bonus (HWB) Program, an initiative to increase New York’s health care workforce by 20% over the next five years. The Program seeks to recruit, retain, and reward health care and mental hygiene workers through issuing bonuses to qualifying workers who remain in their position for at least six months.
08.31.2022You Snooze You Lose: NJ Appellate Division Affirms Dismissal of Sleep Apnea Disability Bias Class Action On August 15, 2022, the New Jersey Appellate Division declined to reinstate a disability bias class action brought by a New Jersey Transit train operator who was required undergo a sleep apnea screening due to the results of his physical examination as required by NJ Transit’s policy stemming from safety concerns as a result of a 2016 train accident.
08.24.2022Is Age Just A Number? On August 15, 2022, in Cronin v. Booz Allen Hamilton Inc., et al., the Third Circuit Court of Appeals upheld the District of New Jersey’s grant of summary judgement to Booz Allen on Cronin’s age discrimination claims, finding that Cronin was unable to show that Booz Allen’s non-discriminatory reasons for not hiring her were “so plainly wrong that it cannot have been [Booz Allen]’s real reason.” Absent such a showing, the Third Circuit would not overturn the decision of the District Court.
08.23.2022New Jersey Appellate Division Says Farewell to Courier New in Court Rule UpdatesOn August 5, 2022, the Supreme Court of New Jersey released amendments to the Court Rules governing practice in New Jersey’s state courts, which will take effect on September 1, 2022. We highlight two of the main changes in the new rules that impact commercial litigation.
08.10.2022ABC Is Not As Easy as 1-2-3: NJ Supreme Court Issues Independent Business Misclassification Decision On August 2, 2022, the New Jersey Supreme Court in East Bay Drywall, LLC. v. Department of Labor and Workforce Development, issued a unanimous opinion holding that workers, hired on a need and availability basis, who used their own equipment and provided certificates of insurance and business entity registration information, were employees of a drywall installation business and not independent contractors as the company claimed. The Court also held that whether or not the workers could “join the ranks of the unemployed” when the relationship with the company ends directly impacts independent contractor status in New Jersey.
08.04.2022A Real “Who Dunnit?”: Dispute Over Unsigned Arbitration Agreement Means Judges Must Wear Detective’s CapOn July 18, 2022, the New Jersey Appellate Division provided a perfect reminder why all employers and HR professionals should diligently confirm that new hires complete all on-boarding paperwork. In Bhoj v. OTG Management, LLC, the Appellate Division reversed a trial court’s order compelling arbitration, finding that the terminated employee’s failure to sign or acknowledge receipt of an arbitration agreement presented a factual mystery that required a more in-depth investigation by the judge before she could enforce an unsigned arbitration agreement.
06.16.2022It’s Settled . . . Or Is It? NJ Appellate Division Rules The NJLAD Does Not Prohibit Non-Disparagement Clauses in Settlement Agreements On May 31, 2022, in Savage v. Township of Neptune, the New Jersey Appellate Division partially upheld, and partially overturned, a trial court’s enforcement of a private settlement agreement, holding that although the settlement agreement’s non-disparagement clause was enforceable and not violative of the statutory prohibition against enforcing non-disclosure provisions in harassment/discrimination/retaliation cases, the employee’s allegedly disparaging statements did not actually violate the non-disparagement clause as written.
05.31.2022Is There a Problem Officer?: NJ Appellate Division Affirms Dismissal of Retired Police Officer’s Disability LawsuitOn May 23, 2022, the New Jersey Appellate Division upheld a trial court’s dismissal of failure to promote, hostile work environment, and retaliation claims brought by a retired New Jersey State Police Trooper. In Stonnell v. State of New Jersey, the Appellate Division affirmed the trial court’s dismissal of the trooper’s New Jersey Law Against Discrimination (NJLAD) claims, finding that he failed to set forth facts sufficient to establish that the New Jersey State Police violated the law with respect to his employment.
05.09.2022New York’s New Electronic Monitoring Law Effective May 7, 2022As we previously notified our readers, it’s a new dawn of electronic monitoring in New York. Effective May 7, 2022, employers engaging in electronic monitoring must provide detailed notice to their employees. Notice will be required if the employer wishes to digitally monitor or otherwise intercept phone conversations, text messages, e-mails and internet usage of employees.
04.28.2022Glass Houses: Hostile Work Environment Claim Dismissed Due to Employee’s Own Unprofessional ConductOn April 19, 2022, in Bouziotis v. Iron Bar, LLC, the New Jersey Appellate Division upheld a trial court’s dismissal of a former bartender’s hostile work environment and gender discrimination claims partly on the grounds that employee partook in the “pejorative language and boorish conduct pervading Iron Bar’s atmosphere,” just as much as anyone else, regardless of gender. Because the former employee could not show that the alleged misconduct occurred “but for [her] gender,” the Appellate Division upheld the trial court’s grant of summary judgment in favor of the employer.
04.25.2022Employer Documentation Saves the Day & Earns Dismissal of Age Bias LawsuitOn April 4, 2022, in the matter of Jane Rocks, et al. v. PNC Investments LLC, et al., a three-judge Appellate Panel affirmed the Superior Court’s grant of summary judgment in favor of PNC Investments LLC and dismissing the former employees’ claims of age discrimination, hostile work environment, and constructive discharge in violation of the New Jersey Law Against Discrimination (NJLAD). The Appellate Division found the employees were unable to demonstrate that they were held to higher standards due to their age.
03.28.2022New DOJ Guidance on ADA Web Accessibility Leaves Unanswered QuestionsOn March 18, 2022, the Department of Justice (DOJ) published web accessibility guidance under the Americans with Disabilities Act (ADA). The ADA is a federal civil rights law that prohibits discrimination against people with disabilities and guarantees that people with disabilities have the same ability as everyone else to enjoy opportunities, goods, and services. Although the new Guidance establishes the DOJ’s intentions to ensure websites are accessible to all, it leaves several unanswered questions on exactly how businesses and governments are to stay in compliance with the ADA.
03.14.2022Calling all NJ Government Contractors—The ELEC Pay-to-Play Annual Disclosure Filing Deadline is ApproachingNew Jersey’s annual pay-to-play filing deadline will be here at the end of March. If your business entity received payments of $50,000 or more (in the aggregate) as a result of New Jersey government contracts during the 2021 calendar year, the time has come to begin preparing your Business Entity Annual Statement (“Form BE”).
03.10.2022Deadline for New Jersey's Annual Pay-to-Play Disclosure is ApproachingDoes your company do business with New Jersey government entities? Does your company make political contributions to New Jersey political recipients? Does your company have a political action committee/continuing political committee that is active in New Jersey? Do your officers, directors, partners or their spouses make political contributions to New Jersey recipients? If you answered “yes” to any of these questions, you are most likely required to file an Annual Pay-to-Play Disclosure Form for calendar year 2021.
03.10.2022City of Newark Poised to Pass Amended Inclusionary Zoning OrdinanceOn March 8, 2022, Mayor Ras J. Baraka introduced amendments to the City of Newark’s Inclusionary Zoning Ordinance (“IZO”) that may have far reaching impact on residential development in the City. The proposed amendments passed through the City Council on first reading, and are now referred to the Planning Board for review. Following Planning Board review, the amendments are expected to be adopted by the Council in the coming months.
03.08.2022NJ Appellate Division Upholds Requests, Not Commands, By Employers to Maintain Confidentiality in Employment InvestigationsOn February 28, 2022, the New Jersey Appellate Division ruled that a request for confidentiality by an investigator in connection with a discrimination or harassment investigation is valid and does not violate an employee’s right of free speech or the New Jersey Law Against Discrimination (NJLAD). In Usachenok v. State of New Jersey Department of the Treasury, et al., the Appellate Division denied an attempt made by a former employee to invalidate a regulation by the State's Civil Service Commission requesting confidentiality in connection with a harassment investigation.
02.25.2022To Be Blunt: The NJLAD Does Not Bar Arbitration of Medical Marijuana User’s Employment ClaimsOn February 15, 2022, the New Jersey Appellate Division upheld a trial court Order compelling arbitration of discrimination and wrongful termination claims brought by a former employee who was terminated for testing positive for marijuana. In a matter of first impression, the Appellate Division in Antonucci v. Curvature Newco, Inc. held that federal law governing arbitration preempts a 2019 amendment to the New Jersey Law Against Discrimination (NJLAD) invalidating employment agreements that require employees to waive certain rights, with respect to discrimination, retaliation, and/or harassment claims.
02.09.2022Pennsylvania Government Contractor Pay-to-Play Disclosure Deadline – February 15, 2022Under Pennsylvania's pay-to-play disclosure law, any business entity that has been awarded any no-bid contract by the Commonwealth of Pennsylvania or any of its political subdivisions must file a disclosure with the Pennsylvania Department of State by February 15, 2022.
01.25.2022New York City Passes Law Requiring Salary Ranges in Job PostingsA makeover is on the horizon for job postings in New York City. On December 15, 2021, the New York City Council passed new legislation relating to wage transparency on job postings. On January 15, 2022, New York City Mayor Eric Adams returned this bill without a veto, effectively passing it into law. The goal of the legislation was to reduce pay disparities affecting historically disadvantaged applicants, which follows a national trend.
01.18.2022Whose Burden is it Anyway? NJ Appellate Division Holds Employee Fails to Meet the Burden of Persuasion of Showing Discriminatory Intent Despite surviving summary judgment, securing a favorable verdict at the second trial, and being awarded counsel fees, Plaintiff’s gender discrimination case was abruptly dismissed by the Appellate Division. On January 3, 2022, the three-judge panel held that an employee in a discrimination case bears the burden of persuasion at all stages. This employee’s argument fell short of that burden, and her case was, therefore, dismissed.
01.14.2022High Court Blocks OSHA Vaccine or Test MandateYesterday, the U.S. Supreme Court blocked the implementation of OSHA’s Emergency Temporary Standards (“OSHA ETS”) that had applied to all private employers with 100 or more employees. OSHA’s standards had required these employers to issue a written policy requiring their employees be fully vaccinated or undergo weekly testing. Several business groups and states challenged the OSHA ETS.
01.11.2022Political Compliance Calendar for 2022With the new year comes an opportunity to review and re-set the political-law compliance for campaigns, PACs, lobbyists, businesses, and individuals. The following checklist provides a brief overview of upcoming dates on the political-compliance calendar for 2022.
11.19.2021New York’s New Electronic Monitoring Law Mandates New Disclosure Requirements for Employers It’s a new dawn of electronic monitoring in New York, as employers will soon be required to disclose the extent of their electronic monitoring of employees in the workplace. On November 8, 2021, New York Governor Kathy Hochul signed a new law amending New York State’s Civil Rights Law requiring all private employers that conduct business in the State of New York, regardless of size, to provide notice to employees of electronic monitoring of telephone, email, and internet access and usage.
11.17.2021Governor Hochul Expands The New York Paid Family Leave Act To Cover Siblings With A Serious Health ConditionThis is the first blog in a series covering New York’s Recent Expansions Of Its Employment Laws.
Governor Hochul recently expanded New York’s Paid Family Leave Act by amending the definition of family to include siblings. Siblings under the amendment covers both biological and adopted siblings, half siblings, and step-siblings. This amendment will allow employees time off to care for siblings with a serious health condition. Employers have time to comply, as this amendment does not become effective until January 1, 2023.
11.10.2021Federal Government Issues Regulations Regarding Vaccine Mandates for Private EmployersRecently, we published a blog post describing the numerous state and federal vaccine mandates that have been announced. We noted that we were awaiting Emergency Temporary Standards from the Occupational Safety and Health Administration (“OSHA”) and revised regulations from the Centers for Medicare & Medicaid Services (“CMS”) regarding further vaccine mandates. OSHA and CMS released these regulations on November 4, 2021. Given the broad reach of these new requirements, employers must quickly assess the impact of the requirements on their workforces and, if necessary, implement policy changes.
11.03.2021Employers Beware: New York State Expands Whistleblower Protections Increasing Employer LiabilityOn October 28, 2021, New York Governor Kathy Hochul signed legislation amending the New York Labor Law (“Labor Law”) to substantially enhance the whistleblower protections afforded to private-sector workers who report alleged wrongdoing by their employers significantly increasing potential liability for New York employers. The legislation becomes effective 90 days after its signing, was amended to include a two-year statute of limitations, and significantly broadens the scope of covered individuals and protected activities.
10.29.2021Governor Murphy Requires Vaccination or Testing for All State ContractorsOn October 20, 2021, Governor Murphy signed Executive Order 271, which requires that New Jersey state contractors mandate vaccination or weekly COVID-19 testing for all their employees. This follows several other vaccine mandates that have been imposed by the State of New Jersey and the federal government. As these mandates go into effect, public and private employers need to be aware of their obligations under state and federal law to vaccinate and/or test their employees for COVID-19.
10.12.2021Employees 70 & Older Gain New Life With Expanded Protections Against Age Discrimination in the WorkplaceOn October 5, 2021, New Jersey Governor Phil Murphy signed legislation expanding the New Jersey Law Against Discrimination (NJLAD) providing increased protections against age discrimination for workers 70 years of age and older. The new legislation closes loopholes by repealing provisions permitting age discrimination in hiring, promoting, and retirement practices, while increasing available remedies to those facing age discrimination in employment.
09.21.2021NY HERO Act COVID-19 Designation Activates Employer Prevention PlansOn September 6, 2021, New York State Governor Kathy Hochul announced that the New York State Commissioner of Health has designated COVID-19 a highly contagious communicable disease that presents a serious risk of harm to the public health under the New York Health and Essential Rights Act (HERO Act), thus requiring all employers to implement workplace safety plans to prevent workplace airborne infectious disease outbreaks.
09.16.2021Third Circuit Upholds Arbitrator’s Imposition of Parent Company Liability for Pension Withdrawal LiabilityOn August 26, 2021, the Third Circuit confirmed that a corporation remained on the hook for the pension withdrawal liability of its bankrupt subsidiary despite diluting its ownership interest in the subsidiary below 80%, to avoid controlled group liability. The decision is an example of a court’s power under ERISA Section 4212(c) to disregard a transaction when it finds that the transaction’s principal purpose is avoiding pension withdrawal liability.
09.08.2021Stepping In Where Unions Have Failed, NYC Council Imposes Just Cause Standard On Non-Union EmployersAs our readers may be aware, in March 2021, New York City passed an ordinance requiring fast food employers to have just cause to discharge their employees, where discharge includes termination, constructive discharge, indefinite suspension, and reduction in hours by more than 15%. The ordinance has been effective as of July 5, 2021, and enforcement of these mandates began September 3, 2021.
08.31.2021Political Law Update for Banks, Utilities, Insurance Companies and Regulated IndustriesAs summer winds down, we are entering the home stretch for the 2021 gubernatorial election in New Jersey. Because of the importance of this election, businesses and individuals who normally sit out politics may find themselves getting involved in political activity. This process can be especially tricky for New Jersey’s regulated industries—banks, utilities, insurance companies, and more—because the rules of the road for their political activity have recently changed.
08.25.2021Everyone’s Out of Bounds! NJ District Court Finds Employer’s Discretion in Managing Suspected FMLA Abuse is Limited by the Employer’s Lack of Proper Documentation On August 6, 2021, the New Jersey District Court in Calio v. Camden County Board of Chosen Freeholders, denied motions by both an employer and an employee to resolve a dispute over abuse of leave under the Federal Family and Medical Leave Act (FMLA) and New Jersey Family Leave Act (NJFLA) rights. The District Court ruled that it could not dispose of the case in its early stages and could not find that the employer properly disciplined the employee for excessive absences, due in part, to the employer’s lack of proper documentation.
07.30.2021Paycheck Protection Program - Necessity QuestionnaireThe Small Business Administration ("SBA") has announced, that it has discontinued use of the Loan Necessity Questionnaire, in regards to the PPP program, citing delays caused by loan necessity reviews.
07.09.2021New Jersey Enacts Higher Penalties for Employee MisclassificationOn July 8, 2021, Governor Phil Murphy signed three bills into law that continue to raise the stakes for employers that misclassify employees as independent contractors. With these changes, businesses that operate in New Jersey and misclassify employees can expect to pay stiffer fines and face legal enforcement actions that did not exist before.
07.07.2021Trenton Okays State And Local Government Use Of Project Labor Agreements On Public Works ProjectsFor many years construction contractors that bid on public works projects have had to contend with complying with prevailing wage and benefit, apprenticeship program, certified payroll, and Labor Commissioner registration requirements. Now add to these requirements the risk that a bidding contractor must sign onto a project labor agreement as a condition to performing on a medium or large sized public works project.
On April 30, 2021, Governor Murphy signed Bill S.3414/A.5378 into law, which took effect immediately and allows state, county and municipal governments and agencies, including school districts, to require public works projects they fund to be subject to a project labor agreement (“PLA Law”).
07.06.2021NJ Supreme Court Issues A Grim Prognosis For Employers Facing Hostile Work Environment ClaimsAfter losing in both the trial and appellate courts, Armando Rios, Jr., an ex-Pharmaceutical Executive, managed to sway the minds of the Justices on the State’s highest court to revive his hostile work environment claim. Rios claimed his direct supervisor twice referred to Hispanics by a racial epithet thereby creating a hostile work environment. The lower courts held that two incidents are not severe or pervasive enough to constitute a hostile work environment and dismissed his case. A unanimous New Jersey Supreme Court, however, disagreed and reversed the lower court decisions.
06.29.2021The Supreme Court Says, “The NCAA is not above the law.” Will College Athletes Get Paid To Play?In a long awaited decision, the U.S. Supreme Court ruled unanimously this week in National Collegiate Athletic Association v. Alston et al., that the NCAA violated the antitrust laws in limiting the education-related benefits colleges and universities can offer student athletes. The case involved a broader challenge by current and former NCAA Division I student athletes, to rules on student-athlete pay imposed by the NCAA.
06.24.2021NJ District Court Gives Employers Hope in the Fight Against FMLA MisuseOn May 28, 2021, the U.S. District for New Jersey in VanHook v. Cooper Health Systems, granted Cooper’s summary judgment against its employee’s discrimination and retaliation claims under the Family and Medical Leave Act (FMLA), the Law Against Discrimination (NJLAD), and the Americans with Disabilities Act (ADA). The District Court agreed with the employer that the record confirms the employee’s abusive and dishonest actions and granted the employer’s motion of summary judgment.
06.22.2021NJ Supreme Court Strikes Adverse Employment Action Requirement in Failure to Accommodate ClaimsOn June 8, 2021, the New Jersey Supreme Court in Richter v. Oakland Board of Education affirmed the Appellate Division’s ruling that an employee asserting a failure to accommodate claim does not have to separately establish that she suffered an adverse employment action in addition to demonstrating her employer’s inaction in failing to reasonably accommodate her disability.
06.22.2021The IEs are Coming: Regulated-Industry Companies Now Free to Make Independent Expenditures in NJLate yesterday, the United States District Court of the District of New Jersey held that a century-old statute “does not ban any entity from making independent expenditures” in New Jersey. The decision comes just in time for the 2021 general election in New Jersey with the governor’s race and all 120 seats in the New Jersey Legislature up for grabs.
06.07.2021Supreme Court Narrows Liability Under the Computer Fraud and Abuse ActLate last week, the U.S. Supreme Court issued a decision that narrows the scope of a statute used by the Government and private parties against individuals who access computer systems without authorization. The decision in Van Buren v. United States resolved a split among lower courts limiting both civil and criminal liability under the Computer Fraud and Abuse Act (CFAA), a statute that prohibits individuals from “intentionally access[ing] a computer without authorization or exceed[ing] authorized access, and thereby obtain[ing]…information from any protected computer.”
05.26.2021Sign on the Dotted Line: Enforceability of Arbitration Agreements Against Predecessor Company On April 30, 2021, in Hampton v. ADT, LLC, et al., the New Jersey Appellate Division vacated a September 2020 trial court order dismissing a former employee’s lawsuit and compelling him to arbitrate his Conscientious Employee Protection Act (CEPA) claims against his former employer’s predecessor. In so doing, the Appellate Division held that the trial court must first determine whether the subject Arbitration Agreement was binding on the former Vice President, and if so, whether his former employer was, in fact, the assignee of the agreement.
05.24.2021NJ Appellate Narrows the Road in Auto Dealership’s Sexual Harassment CaseOn May 18, 2021, in McBride v. Atlantic Chrysler Jeep, the New Jersey Appellate Division revived a Sales Consultant’s hostile work environment case against a car dealership after the Law Division previously dismissed it in the dealership’s favor. The employee claimed that she was terminated for rejecting her supervisor’s sexual advances and alleged the dealership was vicariously liable for the supervisor’s conduct. The trial court granted the dealership’s motion for summary judgment. On appeal, the Appellate Division overturned the trial court’s decision and sent the case back to the Law Division to proceed to trial.
05.20.2021The Devil is in the Details: NJ District Court Demands Details of Sexual Harassment to Defeat Motion to DismissOn April 12, 2021, the New Jersey District Court for the District of New Jersey in Spence v. New Jersey, et al., granted in part and denied in part a motion to dismiss an employee’s sexual harassment and retaliation claims under Title VII of the Civil Rights Act of 1964 (Title VII) and the New Jersey Law Against Discrimination (NJLAD). The employee claimed she was sexually harassed by her co-worker and that her supervisors took retaliatory action against her for reporting the alleged sexual harassment. The District Court found that the employee failed to sufficiently plead her sexual harassment claim for lack of pervasive harassment, and in part failed to sufficiently plead her retaliation claim for lack of temporal proximity.
05.10.2021N.J. Supreme Court Revives Register Receipt Class ActionLast week, the New Jersey Supreme Court decided in favor of putative class members, taking a permissive approach to class certification at the early stages of litigation.
05.03.2021A Brief Introduction to the History and Theory of Campaign-Finance Law, Part 1Recently on our blog, we have considered the nuances surrounding pay-to-play laws, election cycles, and refunds of contributions. But, as we continue to cover these and other topics deep in the weeds of political law, it is worth taking a step back to review the history and theory of campaign-finance laws in the United States.
04.26.2021Focus on Newark, New Jersey Pay-to-Play ComplianceOne of the challenges of navigating New Jersey’s political environment is that the rules of the road may differ in each of our 21 counties and 565 municipalities. In the political sphere, perhaps the greatest challenge for compliance arises when considering New Jersey’s local pay-to-play ordinances.
04.12.2021Doubling Down on the FAA: NJ District Court Strikes Down the NJLAD’s Prohibition Against ArbitrationEarlier this year, in a matter of first impression, the Monmouth County Law Division in Janco v. Bay Ridge Automotive Management Corp. held that the amendment to the New Jersey Law Against Discrimination (NJLAD) which prohibits a waiver of any right or remedy available under the NJLAD was superseded by the Federal Arbitration Act (FAA). In its decision on March 25, 2021 in New Jersey Civil Justice Institute v. Grewal, the United States District Court followed suit and enjoined the State AG from enforcing Section 12.7 of the NJLAD that would invalidate arbitration agreements between employers and employees. This decision represents a significant victory for employers on the enforceability of arbitration agreements in harassment, discrimination and retaliation cases in New Jersey.
03.26.2021Deal Hashed Out For Legal Cannabis in the Empire StateNew York appears to be on deck as the next state to join the list of cannabis-friendly environments in which these businesses might have a chance to thrive.
03.19.2021Let’s Go to the Video Tape: NJ Appellate Division Rules Video Dooms Nurse’s Age Discrimination Case On March 3, 2021, the New Jersey Appellate Division upheld the dismissal of a 49-year old Nurse’s age discrimination case against St. Peter’s University Hospital. The Nurse, who was fired after using force to restrain a hospital patient, claimed the incident with the patient was merely a pretext for age discrimination, even though the surveillance video demonstrated otherwise.
03.08.2021FAA Trumps NJLAD: NJ Superior Court Upholds Employer’s Arbitration Agreement in NJLAD CaseIn a matter of first impression, the Monmouth County Law Division in Janco v. Bay Ridge Automotive Management Corp., found that a former employee’s claims brought under the New Jersey Law Against Discrimination were subject to the arbitration agreement that she signed when she was first hired. The Court further held that the recent amendment to the Law Against Discrimination (NJLAD) which prohibits a waiver of any right or remedy available under the NJLAD was superseded by the Federal Arbitration Act.
03.04.2021Calling All New Jersey Government Contractors: Is Your Company Prepared for the March 30th Business Entity Annual Disclosure Filing Deadline?New Jersey’s Pay-to-Play Annual Disclosure filing deadline is less than one month away. New Jersey law requires each business entity that received payments of $50,000 or more (in the aggregate) as a result of New Jersey government contracts during the 2020 calendar year to electronically file a Business Entity Annual Statement (“Form BE”) with the New Jersey Election Law Enforcement Commission (“ELEC”) no later than Tuesday, March 30, 2021.
02.22.2021Governor Murphy Gives Cannabis the Green LightNew Jersey wait no longer – recreational use of cannabis is finally here. Earlier today, Governor Murphy signed the enabling legislation for recreational use into law. What does this mean? Adults 21 and over will be permitted to consume recreational cannabis legally within the state, and the industry is soon poised to expand exponentially.
02.17.2021The Power of RefundsAlthough refunds can be a powerful tool under New Jersey’s pay-to-play laws, all contributions should still be carefully reviewed for compliance with appliable limits so that a company or individual is not in the position of having to ask for a refund. Many companies think that if somebody makes or approves a contribution that they should not have made or approved, the company will simply request a refund. It’s not quite so simple…
02.02.2021Pennsylvania Government Contractor Pay-to-Play Disclosure Deadline – February 15, 2021Under Pennsylvania's pay-to-play disclosure law, any business entity that has been awarded any no-bid contract by the Commonwealth of Pennsylvania or any of its political subdivisions must file a disclosure with the Pennsylvania Department of State by February 15, 2021.
01.28.2021The Importance of Election CyclesIn our last blog, we addressed the applicability of reduced pay-to-play limits for government contractors and prospective government contractors. In this blog, as the first month of 2021 comes to a close, it is an opportune time to review the varying time periods applicable to traditional New Jersey campaign-finance limits. While some contribution limits operate on a calendar-year basis, not all contribution limits re-set in a new calendar year.
01.22.20212020: The Year of the Mole? New Jersey Appellate Division Grants Employee A Second Chance to Pursue Whistleblower ClaimIn the final throws of 2020, a former Rutgers employee was granted a second chance to pursue her whistleblower claim. On December 29, 2020, the Superior Court of New Jersey, Appellate Division, in Debra Herbe v. Rutgers University, reversed a Superior Court’s grant of summary judgment for Rutgers University in a lawsuit brought by a former employee who alleged that the University fired her in retaliation for lodging a complaint against her supervisor. In the new year, the former employee will get another chance to pursue her claim against the University.
01.21.2021Know Your Pay-to-Play Limits: Taking Stock of Covered Contributors2021 has been off to an eventful start politically. Although a lot is happening on the national stage, we cannot forget that 2021 is a big election year in New Jersey. Not only do we have an upcoming gubernatorial election, but all 120 seats in the New Jersey Legislature are up for grabs and hundreds of local candidates will be on the ballot.
01.18.2021Bergen County Twice-Annual Pay-to-Play Disclosure Deadline ApproachesVendors that hold government contracts with Bergen County are required to file pay-to-play disclosures in January and July of each year. This requirement to file the Bergen County Sunshine Form and the REVUE 2 Form was enacted in 2013 when the County adopted its own local pay-to-play ordinance.
01.11.2021Paycheck Protection Program: More Clarifying Rules, Second Draws and a New Application FormOn January 6, 2021, the SBA and the Treasury Department released interim final rules for the Paycheck Protection Program (“PPP”) Second Draw Program, which was created as part of the stimulus bill enacted into law on December 27, 2020, namely the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (the “Act”).
01.05.2021What Regulated-Industry Companies and Non-Profits Need to Know About New Jersey Political Communication ContributionsNot all political activity is the same. A political contribution is different than lobbying, which is itself different than issue advocacy. And the rules of the road differ for each category of activity. Under New Jersey law, there are two scenarios in which a public communication becomes a political contribution, subject to the restrictions and requirements of a contribution.
12.24.2020New Jersey Economic Recovery Act of 2020On December 21, 2020, the New Jersey Legislature passed the “New Jersey Economic Recovery Act of 2020” (the “Economic Recovery Act”), an omnibus piece of legislation which provides support for various programs and policies related to jobs, property development, food deserts, community partnerships, small and early-stage businesses, among others. The bill now heads to Governor Murphy, who is expected to sign it into law.
12.23.2020Stimulus – Implications for Recipients of PPP and EIDL AdvancesLate Monday evening, Congress passed a $900 billion stimulus bill that, among other things, includes some continuation of relief (albeit on a modified basis) for individuals and businesses impacted by the coronavirus (COVID-19) pandemic, adds additional categories of allowable expenses under the Paycheck Protection Program (“PPP”), and tackles the prior determination of the Internal Revenue Service (“IRS”) that precluded recipients of PPP loans from taking deductions for expenses that were paid for with PPP loans and results in forgiveness.
12.11.2020Employers Should Use Caution Before Changing Their COVID-19 Policies Despite New CDC 7-Day and 10-Day Quarantine OptionsOn December 2, 2020, the Centers for Disease Control and Prevention (“CDC”) issued new guidance, which provides that in certain circumstances, individuals who were potentially exposed to COVID-19 by being in close contact with an individual that tested positive for the virus (“Close Contact”), can take steps to reduce the length of a standard 14-day quarantine period.
12.10.2020How Pangaea Will Shape New Jersey’s Cannabis MarketplaceAccording to the Appellate Division’s published opinion In re the Application for Medicinal Marijuana Alternative Treatment Ctr. for Pangaea Health and Wellness, LLC. et al. ___ N.J. Super. ____ (App. Div. 2020) the Department of Health (“the Department”) has some explaining to do about its Alternative Treatment Center licensing process.
12.08.2020Smile, You're on CameraGovernor Murphy recently signed two bills governing the use of body worn camera (BWC) by law enforcement officers in New Jersey.
12.07.2020A Forklift Operator Walks into a BarOn August 7, 2020, the New Jersey Appellate Division upheld the trial court’s dismissal of a negligence action filed by a leased warehouse worker against his employer for injuries sustained while on duty.
11.24.2020Requiring the COVID-19 Vaccination at Work: Issues for NJ Employers to Consider When Developing a COVID-19 Vaccination ProgramWe have seen recent articles speculating on whether employers can require their employees to take an FDA-approved COVID-19 vaccination as a condition of employment or continued employment. Here, without giving any legal advice, for private (non-governmental) New Jersey employers, odds are that this type of employment rule will be permissible, with certain limitations, discussed herein.
11.06.2020New Jersey Enacts New COVID-19 Workplace Safety ProtocolsEffective 6:00 am on Thursday, November 5, 2020, pursuant to Governor Phil Murphy’s October 28, 2020 Executive Order 192 (“EO 192” and “Order”), every New Jersey business which operates with employees and customers physical present at the worksite, will be required to comply with the State’s new COVID-19 workplace safety protocols.
11.03.2020Know Your (Pay-to-Play) Solicitation Limits: Fundraising for New Jersey’s 2021 Gubernatorial Election Has BegunOur last blog post focused on the reduced contribution limits to New Jersey gubernatorial candidates that apply to business entities that hold or seek to remain eligible for New Jersey Executive Branch contracts. But it is not only directly making a contribution to a gubernatorial candidate that can jeopardize eligibility for State of New Jersey contracts.
11.02.2020Police Discipline Record Release: Upheld but Temporarily StayedThe Superior Court of New Jersey, Appellate Division recently issued a unanimous decision upholding Directive 2020-5 and Directive 2020-6 amending the New Jersey Attorney General’s Internal Affairs Policy & Procedures (“IAPP”), which governs police internal affairs investigations in New Jersey.
10.27.2020High Stakes: How Will the Legalization of Recreational Marijuana in New Jersey Affect the Workplace?During this upcoming election, New Jersey residents will have an opportunity to vote on amending the New Jersey state constitution to legalize the recreational use of cannabis for adults 21 years and older. While many are excited and hopeful for the referendum to pass next month, some employers are rightfully concerned with how this change will affect the workplace.
10.20.2020Paycheck Protection Program Update: Where do you Stand? The SBA, in consultation with the Treasury, released a new interim final rule, to simplify loan forgiveness for certain borrowers of Paycheck Protection Program (“PPP”) loans. Specifically, the SBA has issued a rule that provides for a de minimis exemption from the full-time equivalent employee reduction penalty and the employee salary and wage reduction penalty for loans of $50,000 or less
10.07.2020Know Your (Pay-to-Play) Contribution Limits: Fundraising for New Jersey’s 2021 Gubernatorial Election Has BegunThe 2020 Presidential Election is right around the corner and New Jersey’s 2021 gubernatorial election is not far behind! Not only are invitations for socially-distanced and zoom events in connection with the 2020 general election hitting inboxes on a daily basis, but fundraising for the 2021 gubernatorial election has begun.
09.29.2020All Bark, Even Bigger Bite: New Jersey's New Worker Misclassification ProtectionsOn January 20, 2020, Governor Murphy signed into law a series of legislative packages aimed at combating worker misclassification and exploitation. These bills will bolster an already-aggressive state department of labor that has the independent contractor model squarely in its sights.
09.29.2020Federal Court in Manhattan Vacates Key Part of USDOL’S Final Rule on Joint Employer StatusOn September 8, 2020 U.S. District Court Judge Gregory H. Woods in Manhattan granted partial summary judgment to 17 states and the District of Columbia striking down a major part of the Department of Labor’s Final Rule on vertical joint employer relationships.
09.29.2020The End of the Beginning, or the Beginning of the End?On August 10, 2020, a California judge ordered Uber Technologies, Inc. and Lyft Inc., to reclassify their drivers from independent contractors to employees by August 20, 2020.
09.21.2020NJ Supreme Court Enforces Arbitration Agreement Despite Failure to Specify Forum, Arbitrator, & Governing Law On September 11, 2020, in a unanimous decision, the New Jersey Supreme Court found that New Jersey law does not require that an arbitration agreement identify the arbitrator, name the arbitral forum, describe the arbitrator selection process, or provide for the governing law, so long as the agreement to arbitrate includes a clear and unmistakable waiver of the right to a jury or other civil trial of the claims.
09.01.2020Federal Court Judge Block Blocks Temporarily HHS’s Enforcement of Revised ACA Anti-Sex Discrimination Rules, Restores ACA Protections for LGBTQ Individuals On August 17, 2020 the U.S. District Court for the Eastern District of N.Y. preliminarily enjoined the U.S. Department of Health and Human Services (“HHS”) from enforcing provisions of its June 2020 final Section 1557 regulations (“2020 Rules”) which were slated to take effect the next day. The 2020 Rules, in part, interpret the Affordable Care Act’s prohibition of sex discrimination as excluding discrimination based on gender identity and sex stereotyping, which is contrary to the interpretation under the Obama-era rule.
08.24.2020Court Rules that Employees Cannot Disclose Your Trade Secrets, Even to ThemselvesOn August 10, 2020, the District Court for the District of New Jersey in Bramshill Investments, LLC v. Ashley Pullen, 2:19-cv-18288 (D.N.J. August 10, 2020) recently considered a motion to dismiss a complaint against an employee who allegedly misappropriated Bramshill’s trade secrets. The District Court denied defendant’s motion in part, holding that Bramshill sufficiently pled causes of action for violations of the Defense of Trade Secrets Act, the New Jersey Trade Secrets Act, breach of contract, and breach of the duty of loyalty.
08.19.2020Crossing State Lines: Road Tripping with Amazon and Interstate CommerceOn July 28, 2020, Chief District Judge Freda L. Wolfson from the District of New Jersey denied Amazon’s Motion to Dismiss and Compel Arbitration in Harper v. Amazon. The parties were ordered to engage in discovery to determine whether plaintiff was engaged in interstate commerce to be exempt from arbitration under the Federal Arbitration Act (FAA).
08.18.2020Don’t Fear The Click-Box: NJ Supreme Court Upholds Electronic Employee Arbitration AgreementsOn August 18, 2020, in a landmark decision for employers, the New Jersey Supreme Court released its long-awaited opinion in Skuse v. Pfizer (A-86-18) (082509), holding that an employee must arbitrate her employment discrimination claims agreed to in an electronic employee arbitration agreement. The decision reverses the Appellate Division’s January 2019 decision, which had imposed heightened requirements on employers obtaining employees’ assent to arbitration agreements.
08.12.2020Shop Smart, Shop Savvy, SHOP SAFETo combat the growing trend of phony goods, a new bipartisan bill was presented to the U.S. House of Representatives earlier this year – titled “Stopping Harmful Offers on Platforms by Screening Against Fakes in E-Commerce” or the SHOP SAFE Act.
08.06.2020Separate PPP Loan Forgiveness FAQs Now ReleasedThe Small Business Administration (in consultation with the Department of the Treasury) has issued a separate set of FAQs to deal with the forgiveness component of the Paycheck Protection Program.
07.21.2020New Jersey Arbitration Act Rushes in and Orders Arbitration Where FAA Fears to TreadIn a July 14, 2020 decision the Supreme Court of New Jersey held that the New Jersey Arbitration Act (NJAA) may apply to arbitration agreements even if the parties are subject to the Federal Arbitration Act (FAA) exemption for transportation workers engaged in interstate commerce.
07.13.2020To Screen or Not to Screen? Amazon Must Face NJ Wage Class Action for Workers’ Post-Shift Screening On June 29, 2020, the U.S. District Court for the District of New Jersey ruled that Amazon must face a proposed class action alleging violations of New Jersey Wage and Hour Law (NJWHL), which seeks compensation for time spent undergoing mandatory post-shift security screenings and for time spent during meal breaks.
07.08.2020New Permit Extension Act Enacted in Response to COVID-19As the COVID-19 pandemic continues to significantly affect all aspects of the real estate industry, the legislature of the State of New Jersey has passed amendments to the Municipal Land Use Law (the “MLUL”), codified at N.J.S.A. 40D:55-1, et. seq. The amendments contained in Assembly Bill A-3919 (the “Law”) will have a significant effect on pending real estate projects, both those that have received land use approvals and those with pending applications before municipal land use boards.
07.07.2020Will You Be Immune to COVID-19 Lawsuits?As businesses and institutions of higher education begin returning to in-person work or instruction, entities continue to grapple with reopening and the probability of infection despite following all current health guidelines. The evolving guidance from health officials, the federal, state and local governments means that businesses and institutions will be constantly monitoring and updating procedure and protocols in response to the public health emergency.
07.01.2020Car Sales Incentives Count Toward Minimum Wage, According to DOL LetterIn a series of opinion letters released Thursday, the U.S. Department of Labor announced that car dealerships may use incentive payments from automakers to help meet their obligation to pay salespeople minimum wage.
06.24.2020Paycheck Protection Program: More Interim Rules Issued by SBAOn June 22, 2020, the SBA issued another set of interim final rules to conform earlier issued rules with the Paycheck Protection Program Flexibility Act of 2020 (the “Flexibility Act”). Specifically, these rules revise the interim final rules issued on June 1, 2020 regarding loan forgiveness and the SBA’s loan review procedures.
06.18.2020USDOL Approves Use of Electronic Disclosures by Retirement Plan Administrators On May 21, 2020 the U.S. Department of Labor (“DOL”) issued a new rule creating a voluntary safe harbor for retirement plan administrators who prefer to provide ERISA-mandated retirement plan information and disclosures to participants and beneficiaries electronically, as the default method (“Electronic Disclosure Rule”).
06.17.2020EMPLOYEES COVID-19 RELATED COMPLAINTS IN NEW JERSEYThe pandemic brought pandemonium to many New Jersey workplaces. With the second largest outbreak in the country only behind New York, and being the most densely populated state in the country, New Jersey was hit particularly hard by the pandemic giving rise to a number of employee suits.
06.17.2020COVID-19 "EZ" Loan ForgivenessThe SBA has released a revised version of the previously issued Paycheck Protection Program Loan Forgiveness Application, updated to reflect changes effected by the Paycheck Protection Program Flexibility Act of 2020 (the “Flexibility Act”), enacted into law on June 5, 2020.
06.15.2020Supreme Court Finds Federal Law Bars LGBT Employment DiscriminationThe U.S. Supreme Court (SCOTUS) held today that the ban on sex discrimination in the federal employment law, Title VII of the Civil Rights Act of 1964, covers employment discrimination based on sexual orientation or transgender identity.
06.11.2020Paycheck Protection Program: New Interim Final RulePlease note that another set of interim final rules has been released, amending the first interim rules, for the Paycheck Protection Program, to reflect modifications effected by the Paycheck Protection Program Flexibility Act of 2020 enacted on June 5, 2020.
06.05.2020Paycheck Protection Program: Congress Responds to Business Concerns Regarding Forgiveness PeriodOn June 3, 2020, the Senate approved the Paycheck Protection Program Flexibility Act (the “Flexibility Act”), which purports, among other things, to extend the 8-week ‘covered period’, for the incurrence and payment of eligible forgivable costs and to reduce the 75% payroll costs requirement.
05.21.2020Estate Planning Wealth Transfer in the COVID-19 Environment We would like to take a moment to emphasize that the current, challenging circumstances perversely present estate planning wealth transfer opportunities. These opportunities result from historically low interest rates, coupled with reduced asset values, which we outline in the following article.
05.17.2020Paycheck Protection Program Forgiveness Application Form Finally Released!The Treasury Department and the U.S. Small Business Administration (SBA) have released the Paycheck Protection Program Loan Forgiveness Application, which sheds further light into how borrowers may seek, and obtain, forgiveness of their Paycheck Protection Program loans. In addition to worksheets that calculate eligible forgiveness amounts, the loan application and its accompanying instructions clarify a few prior unknowns (mysteries).
05.13.2020How to Protect Your Business from a Spite StoreWhile the concept of a spite store may be far-fetched, it is of crucial importance for businesses of all types to ensure that competitors don’t open up for business right next door.
05.07.2020Hail Mary (Jane): New York City Weeds Out Pre-Employment Marijuana Testing on May 10New York City’s ban on pre-employment drug testing for marijuana goes into effect this weekend, on May 10, 2020. The law makes it an “unlawful discriminatory practice” to require a prospective employee to submit to testing for the presence of marijuana or tetrahydrocannabinols (“THC”), the psychoactive ingredient in marijuana, as a condition of employment.
04.30.2020Sleepless Nights Ahead For WalMart’s Overnight Assistant Store Managers After Denial of Class Status On April 24, 2020, the District Court for the District of New Jersey in Sundel Quiles, et al. v. Wal-Mart Stores, Inc., d/b/a Wal-Mart, 2:16-cv-09479 (D.N.J. April 24, 2020) recently considered a motion for class certification by a group of Overnight Assistant Store Managers (Overnight ASMs) who were allegedly misclassified as exempt executive and administrative employees.
04.29.2020When an Employee Refuses to “Play Ball”On April 14, 2020, in a published decision, the New Jersey Appellate Division in Rios v. Meadowlands Hospital Medical Center, held that a plaintiff who alleged he was retaliated against by his employer in connection with the defense of a co-worker’s lawsuit does not have to first demonstrate that his co-worker had a good faith basis for bringing her suit as a prerequisite to his retaliation claim.
04.24.2020COVID-19 Payroll Protection Update: SBA Adds Liquidity Requirement to QualifyAnnouncement – The Treasury Department updated its FAQS regarding the economic uncertainty and need certification to be made by PPP applicants/borrowers, requiring that borrowers take into account their current business activity and their ability to access other sources of liquidity sufficient to support their ongoing operations.
04.24.2020COVID-19 Paycheck Protection ProgramAn interim final rule – affecting changes to the Paycheck Protection Program was released Friday, April 24th.
04.23.2020Supreme Court Agrees to Decide Scope of Computer Fraud and Abuse ActAlthough this case involves a criminal prosecution, the decision will implicate the ability of companies to bring civil cases in federal court against employees and former employees that improperly access company data for improper purposes. The CFAA has been an important tool for companies to enforce the confidentiality of data in their computer systems and has become increasingly important as more and more confidential data is electronic.
04.22.2020New Jersey Gives Employers Struggling with the COVID-19 Pandemic a Temporary Break: Delay and Changes to the Amended New Jersey WARN Act In response to growing concerns of employers due to the COVID-19 pandemic, on April 14, 2020, Governor Phil Murphy signed into law new legislation which provides two significant changes to the Millville Dallas Airmotive Plant Job Loss Notification Act (NJ WARN). Pursuant to the January 21st changes, initially scheduled to become effective on July 19, 2020, employers will be required to provide longer notice periods and mandatory severance pay in connection with a large layoff or facility closure.
04.21.2020New Law Allows Remote Notarization During COVID-19 PandemicOn April 15, 2020, New Jersey Governor Phil Murphy signed bill A-3903 into law. The new law allows for New Jersey notaries (or an officer authorized to take oaths, affirmations, and affidavits, or to take acknowledgements) to notarize documents virtually using audio-video technology, during the time of this public health emergency (as declared by the Governor in Executive Order 103 of 2020).
04.09.2020COVID-19 Update: CARES Act Tax Implications for IndividualsMany may be wondering about some of the recent tax changes meant to help everyone coping with the economic fallout from the COVID-19 pandemic. This article delves into the important tax-related provisions for individuals in the Coronavirus Aid, Relief, and Economic Security (CARES) Act, Congress’s unprecedented economic stimulus package that the President signed into law on March 27, 2020.
04.06.2020COVID-19: Land Use Board Virtual Meeting Guidelines Issued The New Jersey Division of Local Government Services (the “Division”) provided operational guidance this week, encouraging municipal Planning Boards and Zoning Boards of Adjustment to engage in telephonic and/or virtual public meetings in light of Governor Murphy’s Executive Orders 103 and 107 as well as additional social distancing guidelines established to help combat the COVID-19 outbreak.
04.03.2020In the Wake of the COVID-19 Pandemic, New Jersey Expands Employee Leave Entitlements On March 25, 2020, New Jersey Governor Phil Murphy signed S2304, amending the New Jersey Earned Sick Leave Law, the New Jersey Family Leave Act (“FLA”), and the New Jersey Temporary Disability Benefits Law (“TDL”). The amendments expand an employee’s ability to take leave and collect temporary disability benefits during epidemic-related emergencies.
04.03.2020COVID- 19:How Will my Business Survive? Join the Honorable Timothy Dougherty, Mayor of Morristown, Counsel Keith Krauss, and Associate Young-Ji Park of Genova Burns as they discuss the availability of funding programs from the NJEDA to assist your business.
04.02.2020Hudson Yards Decision Boosts Non-Union ConstructionIn a positive development for non-union contractors, a federal judge has reaffirmed the traditional defenses available to employers that face claims they are running unlawful double-breasted operations.
04.02.2020COVID-19: SBA Paycheck Protection ProgramThe Interim Final Rule (the “Rule”) pertaining to applications for the Paycheck Protection Program was released this evening, April 2, 2020.
03.31.2020COVID-19 Political Law UpdatesAs the entire globe faces the unprecedented challenges of COVID-19, the political world is working to adjust to the new normal. Campaign ads are already focusing on COVID-19 claims, and we are also seeing in-person events being replaced with virtual conference calls, events, and rallies. But, with very few exceptions, the existing legal framework still governs political activity.
03.30.2020COVID-19 FINANCIAL RELIEF: CARES Signed into law The anxiously awaited CARES Act was approved by Congress and signed by the President on Friday March 27. The Act is a complicated 854 pages long, with many ambiguities and gaps which will need clarification in the coming days as the responsible agencies issue regulations, guidelines and interpretations.
03.27.2020New Jersey Election Law Enforcement Commission Announces Grace Period for Form BE Annual Pay-to-Play DisclosureThe statutory filing deadline for the Form BE annual pay-to-play disclosure in New Jersey, which requires each business entity that received payments of $50,000 or more (in the aggregate) as a result of New Jersey government contracts during the 2019 calendar year to disclose its government contracts and political contributions, is set for Monday, March 30, 2020.
03.27.2020COVID-19 : A Synopsis of New Economic Development Authority GuidelinesThe COVID-19 global health pandemic is proving to have long-reaching economic effects. The New Jersey Economic Development Authority has introduced a multitude of programs to provide aid to New Jersey businesses. The programs are tailored to assist small and medium sized businesses in a variety of situations. Genova Burns has compiled the most recent offerings from the state to keep New Jersey working.
03.27.2020 New Jersey Division on Civil Rights (DCR) Releases COVID-19 FAQ'sOn March 19, 2020, the New Jersey Division on Civil Rights (DCR) released a Guidance addressing frequently asked questions regarding the novel coronavirus (COVID-19). Specifically, the DCR addresses protections and obligations under the New Jersey Law Against Discrimination (NJLAD).
03.26.2020COVID-19: No Evictions During EmergencyIn light of the impacts from COVID-19 and the uncertainty related to its effect on business, we have seen the region quickly adjust to a new business reality. Both private industry and government have signaled they will work quickly to mitigate against the impact of slowdown in the wake of these changes. State, county and municipal governments have taken a number of measures to protect their residents.
03.25.2020New York State Courts: Update on COVID-19 ImpactThe State of New York has issued multiple Executive Orders and Administrative Orders impacting the operations of state courts during the COVID-19 outbreak.
03.25.2020Wealth Transfer Planning in the Face of the Novel Coronavirus COVID-19The combination of a drop in market values, lowered interest rates and a high estate tax exemption have made a number of estate tax planning techniques particularly advantageous during this challenging time. Genova Burns remains committed to finding opportunities to add value to our clients.
03.24.2020New Jersey Employers Prohibited from Terminating Employees for Time Off in Connection with COVID-19On March 20, 2020, New Jersey Governor Phil Murphy signed Assembly Bill No. A3848 prohibiting employers from terminating, demoting or otherwise penalizing an employee for requesting or taking time off from work in connection with an infectious disease during the Public Health Emergency and State of Emergency declared in Governor Murphy’s Executive Order 103.
03.23.2020COVID-19 Crisis Assistance: Is your business eligible?While we wait for Congress to pass further legislation to aid businesses in light of the COVID-19 crisis, there is currently a US small Business Administration (“SBA”) program in place which may provide relief.
03.17.2020Contract Liability in the Wake of the Novel Coronavirus (COVID-19)The worldwide spread of COVID-19 has presented real-world complications to people and businesses with ongoing obligations that are becoming increasingly difficult to meet in the face of quarantines, travel restrictions and the like. Because our firm’s litigators and transactional attorneys have been receiving so many inquiries lately about legal issues and potential defenses which may apply to current and future commercial contracts, the following are key issues to bear in mind.
03.13.2020OSHA Issues Pertaining to Coronavirus (COVID-19)The current Coronavirus Pandemic (“COVID-19”) presents many complex situations for employers and their respective workforces. While management is trying to navigate the maze of wage and hour issues, FMLA and ADA leave, remote workspaces, and childcare, they must also keep in mind their legal obligation to keep employees safe pursuant to the Occupational Safety and Health Act (“OSHA”). Genova Burns Partner, Douglas E. Solomon, Esq., comments on several important OSHA questions.
03.12.2020Key Employer Take-Aways from Long-Awaited Guidance on New Jersey's Equal Pay ActOn March 2, 2020, the New Jersey Division on Civil Rights (DCR) issued Guidance on the Diane B. Allen Equal Pay Act (Equal Pay Act) – the New Jersey law requiring employers to offer equal pay to employees performing substantially similar work.
03.06.2020Coronavirus (Covid-19) - Practical and Fast Facts for Employer Planning As employers work on strategic plans for handling employment-related issues involving Covid-19, such as possible facility closings, tele-commuting, and employee leave/compensations issues, employers should keep in mind these fast facts.
03.05.2020New Jersey’s “Dark Money” Law is Effectively DeadFor more than a year now, New Jersey non-profits and politically active groups have been following the saga of S150, the so-called Dark Money law. This law would have dramatically increased the reporting obligations of 501(c)(4) social-welfare organizations and political organizations operating under Section 527 of Internal Revenue Code that engaged in a wide range of New Jersey political activity and advocacy.
03.03.2020Calling All New Jersey Government Contractors: New Jersey’s Pay-to-Play Annual Disclosure filing deadline is less than one month away. New Jersey law requires each business entity that received payments of $50,000 or more (in the aggregate) as a result of New Jersey government contracts during the 2019 calendar year to electronically file a Business Entity Annual Statement (“Form BE”) with the New Jersey Election Law Enforcement Commission (“ELEC”) no later than Monday, March 30, 2020.
03.03.2020Developers May be Required to Pay for Off-Tract Mass Transit UpgradesThroughout the country various methods have been employed in hopes of generating the necessary capital to upgrade transit infrastructure. New Jersey is no stranger to this problem and Senators Joseph P. Cryan and Loretta Weinberg are sponsoring S-368, a bill that they believe provides the solution.
02.20.2020Ethics Reform is Coming to Trenton: Is Your Company Ready?It has been a little over a month since Governor Murphy delivered his State of the State address in Trenton. In that speech, the Governor promised to deliver sweeping ethics reform to Trenton. Last night, in a live address, the Governor unveiled a comprehensive plan which promises to be the most sweeping changes to ethics reform in Trenton in more than a decade.
02.19.2020Are You Prepared for the New Registration and Application Deadlines for H-1B Visa Petitions? The Trump Administration’s goal to move the H-1B visa application and lottery process to the Internet is being implemented now. The following are the government-imposed deadlines employers face to ensure that their H-1B visa applications are timely received and reviewed by the U.S. Customs and Immigration Service. These deadlines apply only to employers that are subject to the annual visa caps, and not to cap-exempt employers such as colleges, universities, non-profits associated with colleges and universities, and non-profit research or government organizations.
02.07.2020Pennsylvania Government Contractor Pay-to-Play Disclosure Deadline – February 15, 2020Under Pennsylvania's pay-to-play disclosure law, any business entity that has been awarded any no-bid contract by the Commonwealth of Pennsylvania or any of its political subdivisions must file a disclosure with the Pennsylvania Department of State by February 15, 2020.
02.06.2020Automatic Severance and Additional Notice: The Expanding Obligations For Employers Under New Jersey’s New WARN ACT Effective July 19, 2020, pursuant to new legislation signed by New Jersey Governor Phil Murphy on January 21, 2020, New Jersey employers with at least 100 employees over a 3 year period, will have new and expanded obligations to provide their employees with advance notice and severance pay under revisions to the State’s Millville Dallas Airmotive Plant Job Loss Notification Act (NJ WARN). As a result of these revisions, New Jersey will have the most burdensome and expensive reduction-in-force (RIF) legislation in the country.
01.23.2020Citizens United Turns TenWith Citizens United reaching double digits this week, now is an opportune time review the landmark case’s impact on campaign-finance law.
01.21.2020Uncertain Fate of Affordable Care Act and 2017 Rules Creating New Exemptions to ACA’s Contraception Coverage Requirements; New Jersey’s ResponseOn December 18, 2019 the U.S. Court of Appeals for the Fifth Circuit, in a 2-1 decision which the court revised on January 9, declared the Affordable Care Act’s (ACA’s) individual health insurance mandate unconstitutional as a result of Congress’ elimination of the mandate’s financial penalty in the Tax Cuts and Jobs Act of 2017 (“TCJA”), but declined to invalidate ACA in its entirety and sent the case back to the district court to decide the issue.
01.16.2020Governor Murphy, in State of the State Address, Focuses on Ethics and Pay-to-Play ReformIn Governor Murphy’s January 14, 2020 State of the State address, the first-term governor promised to propose, in the coming weeks, reforms to the State’s ethics laws, financial disclosures, and pay-to-play laws. The Governor highlighted that it has been more than a decade since the Executive and Legislative branches “undertook comprehensive ethics reform.”
01.15.2020New Jersey Employers – The NLRB Loosens Restrictions On Confidentiality Instructions For InvestigationsOn December 16, 2019, the National Labor Relations Board (NLRB) issued a decision in Apogee Retail LLC d/b/a Unique Thrift Store and Kathy Johnson, upholding an employer’s confidentiality instructions to employees involved in open workplace investigations and any investigations pending or initiated after December 16, 2019. When implementing this decision to its active investigations, New Jersey employers must be mindful of pro-employee laws which not only allow, but encourage employee discussion.
01.02.2020Know When to Fold 'Em: Appellate Division Upholds Bally’s Termination of Employee Despite Whistleblowing Activity On December 3, 2019, the New Jersey Appellate Division upheld the dismissal of a whistleblowing claim filed by an ex-casino employee and affirmed the trial court’s decision dismissing the employee’s claims under the Conscientious Employee Protection Act (CEPA) finding that he was properly terminated for mistreating his coworkers. Thus, he could not establish a claim for retaliation, as there was no link between his termination and his reporting of an alleged casino scam.
12.30.2019New Jersey Salary History Ban Takes Effect January 1A reminder to New Jersey employers that the new law prohibiting employers from screening job applicants based on their pay history takes effect on January 1, 2020.
12.11.2019“What Goes Around, Comes Around” – A Potential Defense to Hostile Work Environment Claims Under the NJ LADOn November 7, 2019, the U.S. District Court for the District of New Jersey in Paige v. Atrion Communication Resources, Inc., et al., considered a hostile work environment/sexual harassment claim under the New Jersey Law Against Discrimination (NJLAD) by a receptionist who alleged she was constructively discharged as a result of her supervisor’s conduct.
10.15.2019Third Circuit Decision Threatens Rideshare Company’s Right to ArbitrateThe Third Circuit recently opened the door to exempting Uber drivers from the Federal Arbitration Act (“FAA”). In a precedential decision, the Court of Appeals vacated a District Court’s decision compelling arbitration of an Uber driver’s wage claim and remanded the case back to the District Court to determine whether the exemption applies.
09.12.2019Changes Coming to New Jersey Long-Term Tax Exemption StatuteSeveral bills affecting the long-term tax exemption statute are slowly making their way through the New Jersey Legislature. While each bill addresses different provisions of the statute, the common theme among them is one of restrictiveness.
This website uses cookies for site operation, security and analytics purposes, as described in our Privacy Notice and Cookie Notice. By clicking Ok, you are agreeing to our use of cookies.
OK
