Insights Archives — Page 12 of 52 — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

The NLRB is Once Again Set to Expand Joint Employer Liability

Published on: October 13, 2022 | by Lisa Gingeleskie

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.

Why Employers Need Consistent Records of Employee Performance

Published on: September 9, 2022 | by Joshua L. Weiner

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.

New Jersey Employers: Time To Update Your Workplace Postings!

Published on: August 30, 2022 | by Lisa Gingeleskie

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.

Nicole A. Kobis, Esq. featured in Lawline’s Lawyers Who Lead Podcast

Published on: August 23, 2022 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Be open and listen. The skill of opening the ears, putting down the phone, and actually listening is something that we all can work on…

Nicole A. Kobis, Esq., partner in Lindabury’s Divorce and Family Law Practice Group, discusses her thoughts on how to lead and succeed in today’s constantly evolving world as a featured guest on Lawline’s Lawyers Who Lead Podcast, with host Sigalle Barness.

The Best Lawyers in America® Names Lindabury Attorneys to 2023 Listing

Published on: August 18, 2022 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Lindabury, McCormick, Estabrook & Cooper, P.C. is please to announce that 15 of the firm’s have been selected for inclusion in The Best Lawyers in America 2023.

Steven Backfisch was recognized as Best Lawyer in America for Litigation in Labor & Employment.
John R. Blasi was recognized as Best Lawyer in America for Trust & Estates.

American Hospital Association v. Becerra: The Economics of Healthcare

Published on: August 8, 2022 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

COVID-19, inflation, politics, and an impending recession: it is indisputable that the last two years have had an indelible effect on the healthcare industry. Acute care providers, in particular, have faced a plethora of economic challenges, including increasing costs for drugs and medical devices. However, on June 15, 2022, in American Hospital Association v. Becerra, Secretary of Health and Human Services, 142 S.Ct. 1896 (2022), the American Hospital Association (AHA) secured a win for 340B hospitals—often referred to as safety net hospitals—by successfully challenging the Department of Health and Human Services’ (DHHS) calculation of reimbursement rates. As a result, the Becerra court affirmed that DHHS was not statutorily authorized to vary reimbursement rates for different hospital groups; DHHS’s power to increase or decrease the price is distinct from its power to set different rates for different groups of hospitals. Id. As a result, the Becerra decision has far-reaching implications for acute care providers who provide services to uninsured, underinsured, and rural communities.

Legislative Backdrop

In order to appreciate the impact of Becerra, it is imperative to have a general understanding of the evolution of the regulatory landscape for healthcare providers. During the nineteenth century, acute care was generally provided in the homes of the wealthy or through benevolent institutions, including voluntary, religious, and public or governmental institutions. Generally, the Wilson-Gorman Tariff Act of 1894 applied to these early acute care providers, which provided that charitable organizations should enjoy tax-exempt status, provided they operate for charitable purposes.

EEOC Issues Updated Guidance Stating That Mandatory COVID-19 Testing Must Be Job-Related and Consistent with Business Necessity

Published on: July 26, 2022 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Early in the onset of the COVID-19 pandemic the Equal Employment Opportunity Commission (EEOC) issued guidance clearing the way for all employers to mandate COVID-19 viral testing for all employees without the need for any individualized justification or assessment. The health risks posed by the virus at that time prompted the agency to conclude that the health emergency trumped the Americans with Disabilities Act’s prohibition against medical testing that was not “job related and consistent with business necessity.”

The Heightened “job Related and Consistent with Business Necessity” Requirement. In a hopeful sign that the COVID-19 pandemic may be waning, on July 12, 2022, the EEOC revised its mandatory testing guidance to now require employers to assess whether current pandemic circumstances and individual workplace circumstances justify COVID 19 testing of employees to prevent workplace transmission. The EEOC cautioned that the reinstitution of the “job related and consistent with business necessity” standard “is not meant to suggest that such testing is or is not warranted; rather, the revised [guidance] acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted.”

The updated guidance lists the following possible factors that an employer may want to consider during the assessment to satisfy the heightened standard:

Advantages of a Revocable Living Trust for Residents of NJ

Published on: June 7, 2022 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

It has been a routinely held belief among estate planners that a Revocable Living Trust is not necessary for New Jersey residents. The purpose of this article is to identify those situations in which a Revocable Living Trust can be beneficial for residents of New Jersey.

Most commonly, we hear that assets held in a Revocable Living Trust during one’s lifetime, will, at the time of death, avoid probate. Fortunately for New Jersey residents, probate is not an onerous, time-consuming, or expensive prospect. The probate process in New Jersey, which gives legal significance to the will and clothes the executor with court-approved authority, is a straightforward process often costing less than $300 and requiring little paperwork. It takes about two to three weeks to obtain Letters Testamentary, which formally authorize the executor to transact business on behalf of the estate. Other reasons often cited as benefits of a Revocable Living Trust (RLT) are privacy regarding one’s estate, and the elimination of death taxes. These reasons do not apply in New Jersey, because our probate process does not require an inventory disclosing estate assets, nor an accounting with the court listing estate income, expenses, and distributions to the beneficiaries. As for the assertion that RLTs save death taxes, this is simply not true, as all assets in an RLT are considered to be in the control of the grantor (the person who created the trust), and therefore includible in the grantor’s taxable estate.

There are, however, circumstances where an RLT is appropriate for a New Jersey resident. For example, an RLT can be a better way to:

A Basic Introduction To Charitable Giving

Published on: June 7, 2022 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

A number of firm clients are interested in charitable giving, whether made during lifetime or upon death. The reasons behind the differing approaches are varied.

One of the benefits of a lifetime gift to charity is the immediate income tax deduction that may be available.¹ Unlike lifetime gifts to charity, deathtime gifts are not deductible for income tax purposes, although they may be deductible for estate tax purposes.² The federal estate tax is applicable to taxable estates in excess of $12.06-million, and as a result, generally taxpayers will benefit more from a lifetime gift to charity than a deathtime transfer.

Despite the potential tax benefits available to taxpayers through life gifts, there is a reason why taxpayers might prefer to make a gift at death rather than during lifetime. During lifetime it is difficult for an individual to predict how much they will need to support themselves. For that reason alone, many clients opt to provide their charitable gifts after death.

Karolina Dehnhard Speaks to the New Jersey Morning Show About Efforts to Help the Ukrainian Orphan Issue in Poland

Published on: April 8, 2022 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

While the war in Ukraine rages on, Good Samaritans are doing everything they can to help its people. Karolina A. Dehnhard, partner in Lindabury’s Family Law Group, speaks about her involvement with efforts to help Ukrainian orphans in Poland as a return guest on the New Jersey Morning Show.

As a Divorce Lawyer, I deal with family law issues all the time and some of the sensitive issues the we deal with are those of children, parenting, adoption, what happens with the kids. Imagine how lucky children are when they have even one parent. Now think about a situation where you have hundreds, if not, thousands of children living in over 650 orphanages in Ukraine, some of which have now been destroyed by the war, who have no one. So what we found over the last several weeks, is that many of these orphans have come into Poland and are now in our orphanages or care centers in our country but with that comes all these questions. Who’s responsible for these kids? Where’s the jurisdiction? Is it with Ukraine? Is it with Poland? We have now learned that adoptions have been suspended until the Russian war is over. So there are so many things to talk about, and one of the things we are going to do as lawyers, as judges, as philanthropists, is heading over there to lend a helping hand.