Insights Archives — Page 31 of 50 — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

Legislature Amends The NJLAD To Significantly Expand Equal Pay Rights And Curtail The Ability Of Employers To Enter Into Agreements With Employees To Waive Protections Of The NJLAD

Published on: April 27, 2018 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

On April 24, 2018 Governor Murphy signed into law a bill amending the New Jersey Law Against Discrimination (NJLAD) to strengthen its existing pay equity protections and other remedies available under the statue. These changes will go into effect on July 1, 2018. Although principally aimed at remediating the pay gap between male and female employees, the pay equity amendments apply to all other protected classes, paving the way for disparate wage claims on the basis of race, age, disability and any other status protected by the NJLAD.

Moreover, the amendments prohibit employers from securing agreements from employees to shorten the statute of limitations for filing NJLAD claims or waving any of the other protections available to employees under the NJLAD (e.g., jury trial, attorney fees).

Changes to the Burdens of Proof in Wage Disparity Claims: Under current pay equity protections, an employee can bring a wage claim alleging that she is being paid at a rate that is lower than a male counterpart engaged in “similar” or “substantially equal” work. If the employee argues and establishes that the work is “similar,” the employer then bears the relatively light burden to merely articulate (not prove) a legitimate, nondiscriminatory reason for the pay differential. If the employer meets this light burden, the employee then bears the burden to show that the articulated reason is a pretext, and that the pay differential is attributable to her gender. However, if the employee argues she is paid at a lower rate than male employees performing “substantially equal” work, the employer faces a heightened burden. In this situation, the employee bears the initial burden of showing that the jobs are “identical” because they require “substantially similar skill, effort, and responsibility.” If the employee meets this burden, the burden then shifts to the employer who must prove that the pay differential is attributable to one of four factors: i) a seniority system; ii) a merit system; iii)a system that measures earnings by quantity or quality; or iv) a factor other than gender. Thus, employees pursuing “similar” work claims faced a heavier burden than those claiming “substantially equal” work claims.

Under What Circumstances May Private Employers Test Employees And Job Applicants For Alcohol And Illegal Drugs?

Published on: April 23, 2018 | by Lisa Gingeleskie

Employees impaired by drugs or alcohol impact workplace safety, as well as productivity. Therefore, private employers may choose to implement drug and alcohol testing program as part of an effort to maintain the safety and health of their workplace. There is no New Jersey statute that currently regulates how or when employers may test employees or applicants for drugs and alcohol. The New Jersey Supreme Court in 1992 decided the case of Hennessey v. Coastal Eagle Point Co., which has become the most-cited authority on the issue thus far. Hennessey strongly implies that common law privacy rights forbid “random” drug testing in the private sector except for employees in “safety-sensitive” positions. Employees in other positions may be tested only “for cause,” and all testing programs must conform to certain procedural due process safeguards discussed in more detail below.

SOLUTION: Generally NJ employers may conduct drug and alcohol testing under the following circumstances:

Pre-employment testing: Courts have adopted the distinction that job applicants have lesser privacy rights than those of current employees. Therefore, New Jersey law allows employers to test employees for unlawful drugs before employment begins. Nonetheless, applicant testing programs should be in writing and applicants’ signed consent forms should be obtained prior to any testing. However, because alcohol testing is considered a medical examination under the Americans with Disabilities Act, an employer cannot request a job applicant to undergo alcohol testing before a conditional offer of employment is made.

How Do I Minimize the Risk of Discrimination in the Workplace?

Published on: April 20, 2018 | by Lisa Gingeleskie

Discrimination is one of the most significant areas of legal exposure for employers. Employers face potential liability for discrimination claims throughout every stage of the employment relationship. Avoiding employment liability requires sensitivity to a wide variety of legally protected characteristics, including race, color, religion or creed, national origin or ancestry, age, physical or mental disability, sex (including gender and pregnancy), marital status, civil union status or domestic partnership status, familial status, affectional or sexual orientation, gender identity or expression, veteran status, and genetic information.

Most employers are subject to federal and state laws prohibiting employment discrimination, but not all employers appreciate the related legal risks. In 2015, the Equal Employment Opportunity Commission (EEOC) reported 89,385 total individual charges alleging discrimination. These numbers are likely to remain high, in part, because claimants may be awarded significant sums without a great deal of personal cost. In contrast, employers sued for discrimination violations often face large financial losses. It is common for employers to pay thousands of dollars in legal fees defending against meritless claims and thousands more settling well-founded claims.

Solution: Employers can minimize the risk of legal exposure by understanding the legal basics and taking the following preventative measures during the employment relationship.

EU Has Figured Out Privacy, Why Can’t We?

Published on: April 17, 2018 | by Robert W. Anderson

Robert Anderson, Co-Chair of Lindabury’s Cybersecurity & Data Privacy practice group was recently interviewed by ROI-NJ’s Tom Bergeron in regards to the European Union’s May 25th institution of the General Data Protection Regulation (GDPR). Bob feels GDPR will have a huge impact in Europe where there is a different view of privacy. “In the EU, they have taken the position that privacy is a fundamental human right and we certainly have not taken that position in the U.S., especially in terms of digital information.”

To read ROI-NJ’s full online article click here.

What is the Risk of Creating For-Cause Employment Relationships?

Published on: April 17, 2018 | by Lisa Gingeleskie

You may recall an earlier discussion of at-will employment in the context of employee handbooks where we defined at-will employment as meaning that either the employee or employer may terminate the employment relationship at any time and for any non-discriminatory reason. In contrast, a for-cause employment relationship can only be terminated for a reason specified in an employment contract as grounds for termination.

Although employees are generally presumed to be at-will, employers should be mindful of unintentionally converting an otherwise intended at-will employment relationship to a for-cause employment relationship. This conversion can happen simply by making oral or written statements suggesting job security, permanent employment, or that a job will be available provided the employee performs their job, during the recruiting or interviewing process. The risk also exists when applying inflexible discipline policies, particularly progressive discipline policies to at-will employees. Disciplinary policies that allow for discipline only under specific circumstances or through progressively rigorous disciplinary steps may inadvertently modify at-will employment status.

Solution: Be Careful to Avoid Converting an At-Will Relationship into a For-Cause Employment Relationship.

The Digital Landscape Evolves

Published on: April 10, 2018 | by Robert W. Anderson

Cybersecurity & Data Privacy practice group co-chair, Robert Anderson’s recent interview has been included in New Jersey Business Magazine’s recent cover story ” The Digital Landscape Evolves”. Regarding employees who work remotely, who may now pose a risk to their companies Bob says, ” I think everybody, every company, realistically, withing the constraints of what they can reasonably do, should devote significant attention to these kinds of remote access liability issues.” Bob will be among a panel of Cybersecurity professionals at NJBIA’s upcoming “The Internet of Things – Transforming Your Business” Summit on April 20th in Newark, NJ.

To read the full article click here.

Repeal of New Jersey’s Estate Tax and Increased Federal Exemptions Creates Opportunity to Review Estate Plans

Published on: April 9, 2018 | by Anne Marie Robbins

In view of the repeal of the New Jersey estate tax as of January 1, 2018, as well as the recent significant increases in the federal estate, gift and generation-skipping transfer tax (“GST”) exemptions to $11,180,000 per person, also effective January 1, 2018, many clients should review their estate plans.

A. Formula Gifts in Wills and Trust Agreements. For example, if the estate plan bases the disposition of the estate on the available estate tax exemption and divides the estate into shares, with one share for the spouse and the other share for the family, that plan could now result in over-funding the amount passing to family members other than the spouse, thereby reducing or eliminating the spousal share. In short, if the estate plan is based on a formula gift, whether outright or in trust, or if the plan creates a marital trust and a “credit shelter trust” or “family trust” (sometimes called an “AB trust plan”), the estate plan and documents should be reviewed.

B. GST Exemption Gifts. Similarly, if an estate plan includes a gift based on the amount of the GST exemption, for example, a bequest of the GST exempt amount outright to grandchildren, or to a trust for the benefit of children for life and then for grandchildren, this too could significantly reduce the amount a client may wish to provide for his or her spouse or other beneficiaries.

Pay Attention to Red Flags in Estate Planning to Avoid Litigation After Death

Published on: April 9, 2018 | by James K. Estabrook and Elizabeth Candido Petite

Years of experience in administering estates have taught us that the best way to avoid litigation after death is to plan during life. We have come to identify several “red flags” that, when not addressed during estate planning, are more often than not resolved in a courtroom. Not only does this mean that a judge, rather than the client, is ultimately deciding how the client’s property is disposed of, but the process can be lengthy, emotional, and expensive. With the possibility that attorney’s fees will be paid before any property is distributed to the family members, the lawyers may become beneficiaries of the estate when it is contested.

Unequal distribution of assets amongst children.

Clients who want to distribute their property to their children unequally are almost always asking for a fight. They may want to do this because they are estranged from a child or because they believe that one child “needs” more than another. The slighted child, however, may not agree with mom or dad’s decision. When this comes as a surprise to a child after the client’s death – and the parent is no longer here to explain the thought process and to act as mediator amongst the children – the slighted child feels like his or her only recourse is to hire an attorney.

Why Do I Need An Employee Handbook?

Published on: April 9, 2018 | by Lisa Gingeleskie

Although there is no federal law requiring private employers to provide handbooks to their employees, there are numerous reasons for employers to do so, including:

Providing an opportunity to formally welcome new employees, introduce the organization and explain expectations;
Grouping various employment policies together in a handbook makes it easier for an employer to ensure that each employee receives copies of all relevant policies;

POLST vs. Advance Directive – What’s the Difference?

Published on: April 8, 2018 | by Anne Marie Robbins

An advance directive for health care (“Advance Directive”) is a legal document that expresses an individual’s wishes regarding end of life medical treatment, and can include a designation of another person as his or her health care representative.

In contrast, a POLST, Practitioner Orders for Life-Sustaining Treatment, is a health care document that sets forth medical treatment orders. A POLST allows individuals to work with their medical teams regarding treatment decisions in connection with serious illness. The POLST form is completed jointly by an individual and a physician or advance practice nurse, expressing the individual’s goals of care and medical preferences.

Unlike an Advance Directive, a completed POLST form is an actual medical order that becomes a part of the individual’s medical record.