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Following a unanimous vote in the Senate, on November 16, 2022, the House of Representatives passed the Speak Out Act (the “Act”) which now heads to President Biden’s desk for signature.  The Act is just the latest effort by legislators at the federal and state levels to shine the light on instances of sexual assault and harassment in the workplace. This new legislation renders unenforceable certain non-disclosure and non-disparagement provisions that prevent individuals from disclosing the details of sexual harassment or assault claims that may occur in the future.

In practice, this Act will have a limited impact because its prohibitions only apply to employment or other agreements signed prior to a claim of harassment arising. Thus, the Act will not bar the inclusion of non-disparagement/nondisclosure provisions in separation agreements or settlements of sexual harassment or assault claims. In addition, the Act does prohibit non-disclosure agreements that bar disclosure of other forms of discrimination (e.g., age, race religion) or workplace misconduct. Finally, the Act explicitly states that nothing in the new law limits employers’ prevalent use of non-disclosure and confidentiality agreements designed to protect trade secrets or critical propriety information.

Impact On New Jersey Employers:

Divorcing parents of minor children are faced with many hard decisions that must be addressed while separating. These considerations include resolving custody, parenting time and support for their children, which are often much harder and more emotionally charged than the issues involving dividing assets and calculating financial support between spouses. When there’s a child with special needs in the family, there are additional decisions to be made surrounding their continued care, often well past the time that other children would be deemed to be emancipated, and the finances surrounding the support they’re receiving. Special needs children are best served when their parents fully address these issues during the divorce proceeding and are able to focus on the best interests of the children, and the divorcing parents are best served by attorneys who fully understand the issues and can offer practical solutions based on the specific circumstances.

Child Support

In any divorce involving children, the parties need to resolve custody, which involves both the legal and physical sharing of their children. In most cases, parties will agree or a court will order that the parties share joint legal custody of their children. Joint legal custody generally means joint decision making for all major decisions in a child’s life. These major decisions typically fall into three larger categories, which are the child’s: (1) health, (2) education, and (3) well being. For example, both parties would need to participate in the decision-making process and agree on whether the child will attend public or private school or whether the child will have their tonsils removed on a nonemergency basis. If parents are unable to agree on these decisions, they can enlist the help of attorneys, mediators or the court, who will help decide these issues with or for them. For parents of a child with special needs these decisions may involve the continuation of certain therapies or treatments or their continued care if they’re no longer able to reside at home.

As previously advised New York City’s Pay Transparency Law (the “Transparency Law”) requiring most New York City employers to disclose salary ranges in their job postings, takes effect on November 1, 2022.  Guidance recently issued by the New York City Commission on Civil Rights (the “Commission”) gives further insight into the employer requirements of this new law.

Under the Transparency Law, employers with four or more employees or one or more domestic workers, must include a good faith minimum and maximum salary range in all job advertisements, promotions, and transfer opportunities for work to be performed in New York City.

Job advertisements for temporary employment at a temporary help firm, such as a staffing agency, are specifically exempted from these disclosure requirements.

Imagine you attended a mediation in a hotly contested matter which turns out to be a total waste of time because your adversary was late, unfamiliar with the file or unwilling to entertain settlement discussions. Is it permissible to tell the trial judge about your adversary’s failure to act in good faith? What if you are able to reach an agreement but one side later refuses to acknowledge that agreement? Is there any recourse?

Imagine you participate in a mediation which is unsuccessful. Your adversary files a motion wherein it is disclosed that your client was willing to waive alimony at mediation. You, of course, are furious at this misrepresentation because that is only part of the story. What has been omitted is that your client was only wiling to waive alimony in exchange for receiving 100% of the property in equitable distribution. How do you respond?

The General Rule

According to the Giffords Law Center to Prevent Gun Violence, New Jersey has the second strictest gun laws in the nation behind California. As demonstrated this past summer, that legal landscape is ever-changing. While much attention was paid to the U.S. Supreme Court’s June 23rd ruling expanding the right to carry concealed handguns outside the home, many families have given little thought to the implications raised by the transfer of a firearm following a death. This article will discuss the appropriate way to bequeath and inherit firearms in New Jersey and help current gun owners continue their legacy of responsible ownership beyond their passing.

Is a Firearms ID Card or Handgun Purchase Permit required?

Under typical firearm transfers, the receiving party must be a federally licensed dealer (“FFL”) or have a valid Firearms Purchaser Identification Card (“FPID”) and the parties must complete a Certificate of Eligibility. In the case of handgun transfers, the receiving party must obtain a Handgun Purchase Permit (“HPP”). These requirements exist even in transfers between family members.

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Whether a Testator can compel beneficiaries of an Estate to arbitrate potential disputes regarding the enforcement, interpretation, and administration of a Last Will and Testament by including a mandatory arbitration provision is a novel legal issue which, until recently, had not been considered by the courts in New Jersey. For those hoping that an arbitration provision could be used when drafting a Last Will and Testament to bar litigation in court and thereby reduce the possible time and expense of estate disputes, a recent New Jersey decision dashed such hopes and held that arbitration provisions in a will are unenforceable.

In the case of In Re Estate of Hekemian, the plaintiff, Richard E. Hekemian, one of the Decedent’s four sons and a beneficiary of his Estate, filed a lawsuit seeking compensation from two of his brothers, Peter S. Hekemian and Edward G. Imperatore, in their capacities as Co-Executors of their late father’s Estate. Upon notice of the litigation, the defendants filed a motion to compel arbitration based on an arbitration provision in the Decedent’s Will. In turn, the plaintiff opposed the motion claiming that the arbitration provision in the will is invalid under New Jersey.

While noting that the State of New Jersey, as a matter of public policy, generally favors arbitration as a dispute resolution mechanism, the New Jersey Superior Court determined that an arbitration provision in a Decedent’s Last Will and Testament was unenforceable. The court began its analysis by noting the hallmark principle that a testator’s intent should be honored and upheld. To wit, the court cited to the statute at N.J.S.A. 3B:3-33.1 which states that “the intention of a testator as expressed in his will controls the legal effects of his dispositions”.

On September 6, 2022, the National Labor Relations Board (NLRB) released a Notice of Proposed Rulemaking (NPRM) addressing the standard for determining joint-employer status under the National Labor Relations Act. Under the proposed rule, two or more employers would be considered joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment.” If finalized, the rule would explicitly rescind the NLRB’s most recent overhaul of the joint employer standard that raised the bar to attain joint employer status and will undoubtedly result in many more joint employer situations.

The Joint Employer Standard’s Seesaw History

Over the past decade, joint employer status has been gone back and forth dramatically as the composition and political control of the Board has shifted.

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In an example of how informal management can come back to haunt employers, a U.S. District Court judge recently ruled that a former Starbucks regional manager had sufficiently demonstrated that a jury could determine that the justification Starbucks provided in terminating her was pretext for unlawful discrimination.

Plaintiff Shannon Phillips, who is Caucasian, claims that Starbucks discriminated against her and other white employees to repair its public image after drawing negative media attention for the 2018 arrest of two Black men at a Starbucks in Philadelphia, alleging reverse discrimination under Title VII of the Civil Rights, and the New Jersey Law Against Discrimination. Starbucks denies engaging in discrimination, alleging that Plaintiff was terminated for failing to lead and perform her role as a regional manager and, more specifically, was aloof, overwhelmed by the position, and failed to perform the essential functions of her job.

On Starbucks’ motion for summary judgment, the judge determined that Plaintiff had presented sufficient evidence allowing a reasonable jury to conclude that the company discriminated against her and other white employees. The judge further found, however, that Starbucks presented a legitimate, non-discriminatory reason for Plaintiff’s termination. As part of the burden-shifting analysis conducted in discrimination claims, when an employer produces sufficient evidence of legitimate, non-discriminatory reasons for the employee’s termination, the employee must then provide evidence that the employer’s reasons were pretext for discrimination. As it applied to Plaintiff’s claim of discrimination, the judge found that she had presented sufficient evidence creating a genuine dispute of material fact that Starbucks’ stated rationale for terminating her constituted pretext.

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The 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.” Under these regulations, covered employers must display revised posters advising employees of their rights under the New Jersey Law Against Discrimination (“LAD”) and the New Jersey Family Leave Act (“FLA”). Both the LAD and FLA posters must be printed on 8 ½” by 11″ paper (or larger) and contain text that is fully legible. The official posters can be found on the DCR’s website located here and here. Employers should immediately replace their now outdated LAD and FLA posters with the updated ones.

New electronic posting option: The new regulations now expressly allow employers to satisfy the posting requirement by displaying posters electronically on an internet or intranet site accessible to all employees. Additionally, the new regulations require employers to distribute the updated posters annually on or before December 31st and upon an employee’s first request.

Additional posting requirements: As a reminder, the New Jersey Department of Labor and Workforce Development also requires employers to display posters regarding child labor, workers’ compensation, wage and hour rules, payment of wages, unemployment insurance, temporary disability benefits, the Conscientious Employee Protection Act (CEPA), family leave insurance, records, the SAFE Act (if you have 20 or more employees), gender equity (if you have 50 or more employees), paid sick leave, and worker misclassification.

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As a featured guest on Plastic Surgery Practice’s podcast, Setting Up a New Location? Tips for Leasing or Buying, Kerry Cahill, Esq. discusses her thoughts on the establishment of new sites for healthcare practitioners.

Sellers want to maximize their profit on the sale of the property, and, as a result, the practitioners must make competitive offers. For the practitioners who are receiving financing, the mortgage obligations may commence before the practice is physically up and running. As a result, the practitioners must ensure they have enough capital during the fit out period to cover any mortgage, tax, insurance, utility, and repair obligations.

Listen to the full podcast on Plastic Surgery Practice.

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