Insights Archives — Page 11 of 49 — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

Alert: National Ban on Mandatory Arbitration for Sexual Assault and Harassment Claims to be Signed into Law

Published on: February 14, 2022 | by Lisa Gingeleskie

President Biden is expected to sign a bill amending the Federal Arbitration Act by banning pre-dispute employment arbitration agreements for sexual harassment and sexual assault disputes. The proposed law, “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” is the latest in a series of workplace changes initiated by the #MeToo movement.

Sexual assault and harassment claims no longer subject to mandatory arbitration. The amendment prohibits the enforcement of mandatory pre-dispute arbitration agreements, as well as agreements prohibiting participation in a joint, class or collective action in any forum “at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct.” The Act also provides that any dispute as to whether or not a claim falls within the scope of the Act’s prohibitions will be decided by a court, not an arbitrator, irrespective of the designation set forth in the arbitration agreement. Although the bill bans pre-dispute agreements to arbitrate sexual harassment and sexual assault claims, employees can still voluntarily elect for arbitration after the claim arises. This carve-out was intended to allow victims of sexual assault or sexual harassment to voluntarily avoid going through the often-public process of the court system.

Under the legislation, the term “sexual assault dispute” retains the same definition as used in 18 U.S. Code §2246 as one “involving non-consensual sexual act or sexual conduct.” The term “sexual harassment dispute” is defined as one “relating to conduct that is alleged to constitute sexual harassment.” Sexual harassment is narrowly redefined under the Act to only include the following behaviors: a) unwelcome sexual advances, b) unwanted physical contact that is sexual in nature, including assault, c) unwanted sexual attention, including unwanted sexual comments and propositions for sexual activity, d) conditioning professional, educational, consumer, health care, or long-term care benefits on sexual activity, and e) retaliation for rejecting unwanted sexual attention. Notably, this definition does not include other forms of harassment that are not sexual in nature but may nonetheless constitute gender-based discrimination (e.g., disparate pay between similarly situated male and female employees).

NYC To Require Salary Ranges In Job Postings

Published on: January 31, 2022 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

A recent amendment to the New York City Human Rights Law aimed at promoting wage equity for women and minority groups historically receiving less compensation than other groups will have a large impact on recruiting practices for City employers. By doing so, New York City joins a national trend of legislative initiatives promoting transparency and equity in compensation practices.

Beginning on May 15, 2022, employers with four or more employees (which includes independent contractors and employed family members) must include a minimum and maximum salary range in all job listings. This includes advertised jobs, promotions, and transfer opportunities. The range of the minimum and maximum salary may extend from the lowest to the highest salary the employer “in good faith believes at the time of the posting” it would pay for the advertised position.

While the term “salary” is not defined in the law, employers should comply with the minimum and maximum rage requirements regardless of whether the position is paid on a salary or hourly basis. It is not clear whether these requirements only apply to jobs that will be located in New York City, or if it extends to any job postings in New York City regardless of where the job will be physically located. The New York City Commission on Civil Rights is expected to issue regulations clarifying these issues.

Workers’ Compensation Presumption Reactivated with New Jersey’s Issuance of New Public Health Emergency

Published on: January 25, 2022 | by James K. Estabrook

UPDATE: On March 7, 2022, Governor Murphy once again lifted the COVID-19 public health emergency, and consequently the presumption created by SB2380.

In an effort to combat the rapidly spreading COVID-19 Omicron variant, on January 13, 2022, Governor Murphy reactivated a presumption that essential workers’ contraction of the virus is work-related for purposes of workers’ compensation claims.

The Rise and Fall of The Workplace Presumption for Essential Workers. To establish a compensable COVID-19 claim under New Jersey’s Workers’ Compensation Act, the employee must show that he/she contracted the virus directly from the workplace. The difficulty in establishing where an individual contracts a communicable disease explains the scarcity of compensable seasonal influenza workplace claims. However, on September 14, 2020, Governor Murphy signed SB2380, retroactive to March 9th, removing this requirement in COVID-19 cases for essential workers during a public health emergency declared by the Governor, by creating a presumption that the employee contracted the virus in the workplace. Under the bill, the presumption of workplace contraction can only be refuted by a preponderance of the evidence showing the essential worker was not exposed to COVID-19 in the workplace.

Nicole A. Kobis, Esq. discusses the challenges of “Divorce & Your Children” on Legal Breakdown

Published on: January 21, 2022 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

No one goes into a marriage expecting to be divorced, but when a family makes that tough decision, the last thing you want is for your children to be caught in the crossfire.

Nicole A. Kobis, Esq., partner in Lindabury’s Divorce and Family Law Practice Group, discusses the challenges of Divorce & Your Children as a featured guest on RVN Television’s Legal Breakdown, with host Erin Brueche.

SCOTUS Blocks OSHA Vaccination Mandate for Small Employers but Upholds CMS Mandate for Healthcare Facilities

Published on: January 14, 2022 | by James K. Estabrook, Elizabeth Engert Manzo and Lindabury, McCormick, Estabrook & Cooper, P.C.

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring employers of 100 or more to adopt COVID-19 policies, maintain rosters of vaccinated employees, and provide paid time off to employees to vaccinate or recover from its effect. These mandates were to go into effect on January 10, 2022. By February 9, 2022, employers were to require employees to show proof of COVID-19 vaccination or undergo weekly testing.

On that same date the Centers for Medicare & Medicaid Services (CMS) issued an interim rule mandating COVID-19 vaccination and other requirements for workers in most healthcare settings participating in Medicare and Medicaid programs by January 22, 2022.

Legal challenges quickly wound their way through the federal courts, leaving businesses in limbo about their obligations to implement these vaccination and testing mandates. On January 13, 2022 the Supreme Court of the United States (SCOTUS) issued decisions on both mandates, imposing a stay on the OSHA ETS vaccination and testing mandates, but upholding the vaccination mandate and other aspects of the CMS for healthcare facilities.

The Five-Day Rule: CDC Updates on COVID-19 Guidelines

Published on: December 30, 2021 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

As COVID-19 infection numbers continue to surge, the CDC released updated guidelines addressing the changing understanding of the Omicron variant. In a media statement issued on December 27, 2021, the CDC noted that the majority of COVID-19 transmissions happen earlier in the illness, typically prior to symptoms and two to three days after. The CDC addressed changes for both individuals exposed to COVID-19 (quarantine guidelines) and for individuals who contracted COVID-19 (isolation guidelines.) Vaccination is relevant only for quarantine requirements.

Quarantine guidelines: These guidelines differ by vaccination status. Those vaccinated with Pfizer or Moderna within the last six months, or with Johnson & Johnson in the last two months, or those “boosted” no longer have any seclusion requirement. Instead, if no symptoms emerge, individuals should wear a mask for ten days around others and test on day five.

For those not vaccinated, or not meeting the requirements of the above paragraph, the CDC recommends quarantine for five days. After five days of seclusion, individuals should continue to wear a mask around others for ten days and obtain a test on day five. Once again, if any symptoms develop, the CDC recommends seclusion and testing.

The Impact of Divorce on Estate Planning and Wealth Management

Published on: December 27, 2021 | by Nicole A. Kobis and Elizabeth Candido Petite

Births, deaths, marriages and divorces reshape the definition of “family” for individuals on a constant basis. It’s no wonder, then, that family law and estate planning often go hand in hand. Estate planners and divorce attorneys alike are often presented with “what if” questions that span both areas of law. Here, we explore a few common questions clients may have when faced with these life transitions. The goal of this article, is to help clients make decisions that protect their loved ones and their assets.

Changing a Will

Can I change my will while getting divorced and should I? Although the last thing that many clients want to do once the divorce action has begun is to engage another attorney, it’s actually a good idea for them to review their estate plan this time.

OSHA’s Vaccination or Testing Mandate for Large Employers is Back On… For Now

Published on: December 20, 2021 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Shortly after OSHA issued its Emergency Temporary Standard (ETS) mandating vaccination or weekly testing for employers of 100 or more, legal challenges in the federal district courts stalled the implementation of the deadlines for compliance. On December 17, 2021, the Sixth Circuit Court of Appeals – the court designated to hear the consolidated challenges filed in multiple districts – lifted the stay, clearing the way for the implementation of the ETS mandates.

The New ETS Deadlines: Initially, employers were expected to comply with the ETS’s vaccination verification and masking requirements by December 6, 2021, and implement periodic testing for unvaccinated workers by January 4, 2022. In response to the Sixth Circuit ruling lifting the stay, OSHA has announced that it will not enforce any of the ETS standards until January 10, 2022, and will not issue citations for non-compliance with the ETS testing requirements until February 9, 2022, so long as employers are exercising “reasonable, good faith efforts to come into compliance with the standard.”

What Now? An emergency appeal of the Sixth Circuit ruling has already been filed with the United States Supreme Court, which will ultimately decide if the ETS will stand. Nevertheless, employers must prepare now for compliance with the ETS mandate because if sanctioned by the Supreme Court, employers will face a very narrow timeframe to come into compliance with the ETS requirements. Many employers have opted to adopt the ETS mandates despite the ongoing legal challenges because OSHA standards only establish minimum workplace standards and employers are free to implement more stringent requirements.

What Does the Divorce Process Look Like in New Jersey?

Published on: December 8, 2021 | by Nicole A. Kobis

While divorce looks different for every client – some saddened, some shocked, some happy to move on – a common emotion surrounding divorce is nervousness. For many, divorce may be the first time a person has prolonged involvement with the Court system. Understanding the Court System’s divorce process can help lessen anxiety and fear surrounding the divorce process.

Initiation. The first step in any divorce proceeding is the Complaint for Divorce. The Complaint essentially informs the Court of the general facts of your case and is the formal notice to the Court and your spouse that you are seeking a divorce. Your spouse will then have the chance to file an “Answer” to your Complaint.

Financial Paperwork. Generally, both parties to the case will individually file a “Case Information Statement”, which summarizes income and spending of the parties. It will also list any assets or debts that you have. This gives the Court an overview of your financial situation.

Thinking About Filing For Divorce? Prepare in Advance to Make a Difficult Life Change Easier

Published on: November 29, 2021 | by Nicole A. Kobis

Divorce inevitably results in a major life transition for all parties involved. Whether or not both spouses wish to end their marriage, divorce presents changes in family structure, time spent with children and financial resources. During a divorce, decisions need to be made about the most precious and important aspects of an individual’s life while they navigate the intense emotional effects of materially altering the way they may have envisioned their future. In order to protect yourself during a divorce, I advise my clients that the best way to make those decisions is to arm themselves with information so that they become informed consumers. I ask them to gather their financial information, including account statements and tax returns, think about what they want as they transition to life after divorce and what matters most to them as we begin to discuss the issues associated with dissolving their marriage. There are terms that are foreign, processes that are new and decisions that once made can change their lives forever.

The divorce process in New Jersey is focused on settlement- keeping as much control as possible with the spouses themselves who arguably know what is best for themselves, their children and their families. Many litigants turn to alternate dispute resolution means, such as mediation or collaborative divorce, to resolve the issues associated with dissolving their marriage. These processes allow for more creativity in settlement and more communication about the specifics of each issue. In cases that involve more complexity or discord, parent coordinators who help facilitate decisions regarding the children are brought in to manage parents even after the divorce has ended.

While divorce does create change, that change does not have to be for the worse. Surrounding yourself with trained professionals who can help navigate the process, the court system and help educate you while you move through the divorce will help ensure a smoother transition into the next chapter.