Insights Archives — Page 3 of 46 — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

Changes to Form I-9: What Employers Need to Know

Published on: August 30, 2023 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

The Immigration Reform and Control Act (IRCA) of 1986 requires all U.S. employers, regardless of size, to complete a Form I-9 upon hiring a new employee to work in the United States. This form serves to verify an employee’s identity and ability to work in the country.

On August 1, 2023, a new Form I-9 was released, which employers must begin to use no later than October 31, 2023. Additionally, employers that verified remote hires’ Form I-9 identity and work authorization documents virtually during the COVID-19 pandemic are required to physically inspect those documents by August 30, 2023. Failure to comply with Form I-9 requirements may result in civil and criminal fines and penalties. It is therefore critical that employers understand and implement Form I-9 requirements in accordance with these recently established deadlines as set forth herein.

Completing Form I-9

The Ever-Shifting Sands at the NLRB: Board Adopts New Standards for Assessing the Lawfulness of Work Policies and Independent Contractor Relationships

Published on: August 18, 2023 | by Kathleen M. Connelly

The National Labor Relations Board (“NLRB” or “Board”) is responsible for enforcement of employee rights under Section 7 of the National Labor Relations Act (NLRA) to engage in protected concerted activity, such as organizing unions, discussing wages and discipline, and other terms and conditions of employment.

Many employers are not mindful of the fact that these rights extend to both unionized and non-union workplaces. With the decline in union membership, the NLRB has increasingly turned its focus away from unionization issues to workplace practices that may run afoul of employee rights under the NLRA, as illustrated by two recent decisions from the Board.

The Landmark Stericyle Decision’s Impact On Employee Handbooks and Other Workplace Rules

Amendments To NJ’s Unemployment Compensation Law Imposes Additional Reporting Obligations and Increased Penalties For Noncompliant Employers

Published on: August 18, 2023 | by Kathleen M. Connelly

Under New Jersey’s Unemployment Compensation Law, employers have long been obligated to provide separating employees with a Form BC-10 which includes instructions for claiming unemployment benefits, and to provide a reason for the employee’s termination when requested by the NJ Division of Unemployment and Temporary Disability Insurance (the “Division”). Because employers historically ignored or were ignorant of these requirements, the State Legislature amended the Unemployment Compensation Law to include additional reporting requirements and enhanced penalties for those who continue to ignore these obligations. These changes went into effect on July 31, 2023.

The Employer’s Reporting Obligations

Regardless of the reason for the employee’s separation, immediately upon a separation of employment the employer must:

New York Employment Law Roundup: Recent Changes That Employers Must Know

Published on: August 14, 2023 | by Kathleen M. Connelly

Mandatory Sexual Harassment Policy Requirements

Since October 2018 New York has mandated employers to adopt written sexual harassment policies and provide yearly sexual harassment training. The State developed a Sexual Harassment Model Policy and model harassment training materials that employers can use, or employers can develop their own policy and training materials so long as they meet the State’s minimum standards for compliance.

In April 2023 the New York Department of Labor updated its Sexual Harassment Model Policy (the “Model Policy”), model harassment complaint form, and model training materials, which can be found here. The updated Model Policy

Corporate Transparency Act

Published on: August 10, 2023 | by Monica Vir

In an effort to combat money laundering and the funding of terrorism in the United States, the U.S. Department of Treasury has implemented the Corporate Transparency Act (“CTA”), which was enacted as part of the Anti-Money Laundering Act of 2020. The CTA is effective January 1, 2024 and will require qualifying companies to report and file certain information with the Financial Crimes Enforcement Network (“FinCEN”). FinCEN plans to store this information in a secure nonpublic database called the Beneficial Ownership Secure System (“BOSS”), however, FinCEN is still developing the infrastructure of this system.

Who Must Report

The CTA requires entities qualifying as “reporting companies” to report the information noted below to FinCEN. Reporting companies are domestic corporations, limited liability companies, or other similar entities (or foreign entities that have filed to do business in the U.S.) that: (1) have 20 or fewer employees, (2) have less than $5,000,000 in gross receipts or sales as reflected in the previous year’s federal tax return, and (3) do not otherwise meet the requirements of one of the exemptions described in the CTA.

New Jersey Court Rules That the “ABC” Test Does Not Apply to Fully-Commissioned Real Estate Salespeople

Published on: August 1, 2023 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

In a recent published decision, Kennedy v. Weichert, the New Jersey Appellate Division addressed the proper classification of fully commissioned real estate salespeople as employees versus independent contractors. The court ruled that these individuals are not subject to the “ABC” test for purposes of determining their classification under the New Jersey Wage Payment Law (“WPL”).

The “ABC” Test:

Under the “ABC” test, workers are presumed to be employees unless the business can show that: (1) it neither exercised control over the worker nor had the ability to exercise control in terms of the completion of the work; (2) the services provided were either outside the usual course of business or performed outside of all the places of business of the enterprise; and (3) the individual is customarily engaged in an independently-established trade, occupation, profession or business. A business’s failure to satisfy any one of the three criteria results in the worker being classified as an “employee” for wage payment and wage and hour purposes.

SCOTUS Imposes More Stringent Standard For Employers Managing Requests for Religious Workplace Accommodations

Published on: July 7, 2023 | by Joshua L. Weiner

On June 29, 2023, a unanimous U.S. Supreme Court issued its decision in Groff v. DeJoy, clarifying employers’ obligations to accommodate employees’ religious practices under Title VII of the Civil Rights Act. The Court reinterpreted the meaning of “undue hardship” and held that Title VII requires an employer who denies an employee’s request for a religious accommodation to show that the burden of granting an accommodation would result in “substantial increased costs in relation to the conduct of its particular business.” In doing so, the Court rejected a commonly applied, employer-friendly interpretation that an undue hardship exists if an employer can show that the accommodation would result in “more than a de minimis cost.”

The More Lenient “Undue Hardship” Standard Applied by the Lower Courts:

Under Title VII, employers are required to accommodate an employee’s religious practices unless doing so would impose an “undue hardship on the conduct of the employer’s business.” In Groff, a postal carrier who was unwilling to work on Sundays because of his religious practices sued his employer (the United States Postal Service), alleging that it could have accommodated his Sunday Sabbath without undue hardship. Initially, Groff’s position did not include Sunday work. This later changed, however, causing Gross to transfer to a small postal station that did not make Sunday deliveries. Once this station began making Sunday deliveries, however, Groff’s Sunday deliveries were redistributed to other workers. He was disciplined for failing to work on Sundays, and he eventually resigned. The trial court granted the employer summary judgment, which the Third Circuit Court of Appeals affirmed, finding that exempting Gross from Sunday work resulted in more than a de minimis cost, as the exemption had “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.”

New York Joins the Non-Compete Ban Wagon

Published on: June 29, 2023 | by Kathleen M. Connelly

Following through on Governor Hokhul’s promise in her 2022 State of the State address, New York lawmakers passed a blanket ban on all non-compete agreements, thus joining the growing federal and state efforts to curb their use. However, the bill imposes greater restrictions than those implemented in other jurisdictions, including California, North Dakota, Oklahoma, Colorado, Illinois and Maryland. The bill will take effect 30 days after it is signed by the Governor.

The Broad Scope of the Ban:

The bill prohibits all employers, regardless of industry, from seeking, requiring, demanding or accepting a non-compete agreement from any “covered individual,” defined as any person who performs services on such terms that the individual is economically dependent on the other. Thus, unlike other laws that include a carve out for highly compensated employees, the ban extends to all workers across the board, including workers hired as independent contractors.

NLRB Decision: New Standard for Independent Contractors

Published on: June 28, 2023 | by Kathleen M. Connelly

On June 13, 2023, the National Labor Relations Board (“NLRB” or “Board”) reverted to its prior employee friendly independent contractor test to find that makeup artists, wig artists, and hairstylists (“the stylists”) working for the Atlanta Opera were employees rather than independent contractors. This revived independent contractor test will significantly impact employers who will now face a higher bar when seeking to classify workers as independent contractors excluded from the protections of federal labor laws.

The Discarded SuperShuttle Standard: Since 2014 the NLRB applied the following non-exhaustive list of factors to determine independent contractor status:

The extent of control the employer exercises over the work

Benefits to Making a Section 645 Election for Trusts

Published on: June 15, 2023 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Internal Revenue Code Section 645 was enacted in 1997 because of the increasing use of revocable trusts as will substitutes to avoid probate in many states. While in some states like New Jersey and Texas, probate isn’t terribly expensive or difficult, an increasing number of individuals are designing their estate plans with revocable trusts for non-probate purposes. During the grantor’s life, they may be used for streamlined asset management and a less expensive alternative to guardianships in the event of incapacity. After death, trusts provide increased privacy as well as ease of administration when it comes to out-of-state property and possible inheritance tax freezes that can delay the availability of cash to administer an estate. By making an IRC Section 645 election, clients can treat certain trusts as part of their estate. Here are some of the benefits of doing that.

Statutory Requirements

Section 645 sets forth the statutory requirements for making the election to treat certain trusts as part of an estate. The Internal Revenue Service issued final regulations on Dec. 4, 2002.