Articles Posted by Insights

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Employers doing business in New Jersey have been subject to both the federal and state Worker Adjustment and Retraining Notification Act (“WARN”) for more than ten years.  Under the prior laws, if an employer were to close a facility employing more than 50 fulltime employees, it was required to provide those employees with at least 60 days’ advanced notice of the closure or face a penalty that required the employer to pay severance compensation to each of the terminated employees.   Proposed amendments to the New Jersey legislation will not only require employers to provide more notice to employees, but will also impose new economic burdens upon the employers.

Under the proposed amendments to New Jersey’s WARN Act, employers, who plan to close one or more establishment(s) within this state that will result in the layoff or termination of 50 or more employees (fulltime and/or part-time employees) from that establishment(s), will be required to provide the affected employees with at least 90 days advanced notice of the layoff or termination of employment.  Additionally, employers will be obligated to pay severance compensation to each of the affected employees in an amount equal to one week of severance compensation for each year of service. The severance compensation must be paid on or before the last day of employment. If an employer fails to pay the appropriate severance compensation, the employer will fact a penalty obligating it to pay an additional four weeks of compensation to each employee not correctly paid.

The new legislation also attempts to define severance compensation as compensation due for back pay associated with the termination.  It appears to be an attempt to characterize the severance compensation as wages for the purposes of bankruptcy.

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New Jersey has one of the most progressive laws prohibiting discrimination in the workplace, as well as in places of public accommodation.  That law’s protections against race discrimination have been further expanded under recent legislation signed into law by Governor Murphy. The new act is commonly known as the “Crown Act.”

Under the new law, it is now illegal to discriminate against anyone because of their race, inclusive of traits historically associated with race “including but not limited to, hair texture, hair type, and protective hairstyles.”  The new law further defines protective hairstyles to include “such hairstyles as braids, locks and twists.” In short, you cannot refuse to continue to employ any current employees or refuse to employ prospective employees if they are sporting hairstyles that are characteristically associated with a particular race of people.

Although the new law was clearly adopted as a result of last year’s debacle involving a high school wrestler’s hairstyle, it goes beyond hairstyles.  It prohibits discrimination against race, inclusive of “traits historically associated with race.” The law does not further define such traits. Unless and until the Division of Civil Rights adopts regulations which further define such traits, or court decisions provide employers with some direction with respect to defining such traits, employers will be compelled to make those decisions as they arise. For example, could it be argued that beards, piercings or tattooing are traits historically associated with race?   Since there may be numerous historic traits that are associated with different races, we suggest that employers move slowly and consult their employment counsel before making a potentially incorrect decision.

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Lindabury’s Employment Law Group partner, Kathleen Connelly joins Jeanie Coomber for her podcast series One Woman Today discussing “Workplace Sensitivity Training, Harassment and Bullying”.  In their conversation, Kathleen shares her wisdom on what constitutes “bad behavior” and how education of employees and thorough and fair investigations is paramount for employers.

You may listen to the archived podcast here.

 

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“Owning real estate can be a great recruiting tool, and can lure physicians into a larger practice,” says Stephen Timoni in a recent interview with Healthcare Finance News’ Jeff Lagasse.

“They become a partner in the practice, but they also offer them a buy-in into the building,” he said. “That’s very interesting for a young physician because, down the road, what physician groups may be doing is they’ll sell their building for a gain to a real estate investment trust or hospital system, and then they’ll lease the building back from the hospital. So they cash in on their equity.”

Another option for physician groups is to retain the real estate and lease it back to the health system for additional income — providing better overall economics, largely in the form of tax benefits.

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Robert Anderson, a shareholder at Lindabury, McCormick, Estabrook & Cooper and a member of the firm’s Cybersecurity & Data Privacy practice group was recently questioned by Tom Hughes of ROI-NJ, regarding the reasons a business should consult an attorney to oversee cybersecurity planning and preparation.  In short; the answer is: attorney-client privilege.

If you have a breach and your company gets sued — and it will, Anderson said — having all of your preparation protected could result in huge savings of both money and reputation. Anderson, speaking at a recent ROI-NJ Thought Leadership Series panel, explained how. “When you’re first starting to put together a program to protect your company, one of the things that you will typically want to do is hire someone called an ethical hacker, who will try to get into your system,” he said. “The results of this kind of a penetration testing that determines the vulnerabilities and weaknesses in your system will be in a report that goes on for pages and pages of all the problems in your system. If you do end up with an attack and end up in litigation, Exhibit A in the litigation is going to be this detailed report that shows all the vulnerabilities of your system, and they’ll be able to see how you elected to prioritize the problems. “The litigants are then going to say you knew you had these vulnerabilities and spot the one you didn’t fix.” Having legal counsel order the penetration test would likely shield

that document by virtue of attorney-client privilege, Anderson said.

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With more than 750,000 acres in farmland, hemp has long been viewed as a viable crop for the Garden State as it would allow farmers to diversify their products and earn additional profits.

In the wake of the 2014 Farm Bill, New Jersey passed its Industrial Hemp Pilot Program, whereby certain individuals partnered with educational institutions to cultivate, process, research, test, and market safe and effective industrial hemp. The passage of the 2018 Farm Bill removed hemp from the Controlled Substances Act and it is now regulated as an agricultural commodity by the United States Department of Agriculture (USDOA).

Upon the passage of this bill, lawmakers sought to repeal the New Jersey Industrial Pilot Program and replace it with the New Jersey Hemp Farming Act, which would establish a program for cultivation, processing, transport, and sale of hemp to be administered by the New Jersey Department of Agriculture (NJDOA).

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A5322, known as the “New Jersey Hemp Farming Act” finally became law on Friday August 9, 2019. The New Jersey Hemp Farming Act (“NJHFA”) establishes a program for the cultivation, handling, processing, transport, and sale of hemp and hemp products in the State in accordance with federal law. The bill also repeals New Jersey’s hemp pilot program, and replaces it with a permanent program, administered by the New Jersey Department of Agriculture that complies with federal law.

Just like the 2018 Farm Bill, NJHFA defines “hemp” the plant Cannabis sativa L., any part of the plant, and all derivatives thereof with a delta-9 tetrahydrocannabinol (“THC”) concentration of not more than 0.3 percent, consistent with federal law. In other words, if the hemp has more than .3 percent THC, it will no longer be legal on a state or federal level.

Because hemp is a viable agricultural crop and the state wants to promote the cultivation and processing of hemp, the New Jersey now allows famers and businesses to cultivate (plant, grow, or harvest), handle (possessing or storing – exclusive of finished hemp products), process (convert hemp into a marketable form) and sell hemp products for commercial purposes. Farmers and businesses looking to cultivate, handle, process and sell hemp products for commercial purposes must submit an application to the New Jersey Department of Agriculture (“NJDOA”). The application must contain GPS coordinates of the hemp farm, written consent from the cultivator allowing law enforcement and other officials to enter the property at will, a criminal background check of the applicant, and a non-refundable application fee. Other information may be required by the NJDOA as they implement this application process.

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It has been nearly two years since the viral #MeToo tweet that sparked a national debate about sexual harassment in the workplace. While #MeToo has not changed the legal standard by which sexual harassment is defined in New Jersey, it has had a dramatic impact on the way sexual harassment is perceived and tolerated in our culture. Perhaps the movement’s biggest impact can be seen in the passage of both federal and state legislation aimed at providing greater protections to victims of workplace sexual harassment. This article takes a closer look at these legislative initiatives as well as potential changes on the horizon.

Federal Legislation

2017 Tax Cuts & Jobs Act

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Kathleen M. Connelly, a member of Lindabury’s Employment Law practice group,  was recently interviewed by ROI-NJ regarding the Jake Honig Compassionate Use Medical Cannabis Act, which was signed into law by Gov. Phil Murphy on July 2nd.  NJ joins a growing list of states enforcing workplace protections for medical marijuana users.  Kathleen said the difficulty from the employer standpoint is the tension between understanding that people see benefits from cannabis in medical treatment but also needing to ensure these individuals aren’t under the influence while performing job duties.

You can read the full article here.

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In February of 2019 Governor Murphy signed into law sweeping legislation that significantly expands employee rights to family leave entitlements, provides greater family leave insurance benefits to employees during a leave, expands the definition of “family members,” and finally, provides greater job security to individuals taking family leave. It is critical for employers to understand the multiple changes resulting from this this legislation to ensure that employee’s rights are not being violated.

Amendments to the New Jersey Family Leave Act: While most employers are aware that those with 50 or more employees are covered by the federal Family and Medical Leave Act (FMLA) that accords employees 12 weeks of protected unpaid leave for personal medical leave, or to care for a newborn/newly adopted child or family member with a serious medical condition, many are unaware that New Jersey also has a similar Family Leave Act (NJFLA) that likewise applied to employers of 50 or more and accords 12 weeks of protected unpaid leave to qualifying employees. However, unlike the FMLA, NJFLA leave is only available for bonding with a newborn or newly adopted child, or to care for a family member with serious medical condition; the employee has no personal medical leave rights available under the NJFLA.

Effective June 30, 2019, the employee headcount for coverage under the NJFLA dropped from 50 to 30 employees, taking it out of alignment with the FMLA and making many more small employers subject to the requirements of the NJFLA to provide guaranteed protected bonding and family medical leave to qualifying employees. The amendments further expanded the NJFLA to include family leave in connection with the placement of a child into foster care with the employee or the birth of a child conceived using a gestational carrier agreement; in addition, leave in connection with the birth or adoption of a child which rights were available to employees prior to the amendments.

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