Bob Anderson, co-chair of Lindabury’s Cybersecurity and Data Privacy practice group, was recently interviewed by Karen Talley of FierceCEO, a publication that is considered a must-read source for running a business. Bob reports to Ms. Talley that “there is a tendency for businesses to not put the emphasis on employees, but they are the greatest vulnerability” and that “most cyberbreaches are caused by employees, inadvertently.”
To read the full article online click here.
Both New Jersey and the Federal government have established laws prohibiting workplace harassment in any form including discrimination that is based on a person’s race, color, religion, sex (including gender identity and pregnancy), national origin, age, disability, genetic information, sexual orientation, or marital status. In addition, these laws prohibit retaliation against any employee who invokes his or her right to a workplace free of discrimination and harassment.
Internal investigations by employers into allegations of unlawful harassment and other workplace misconduct are becoming more and more common in today’s work environment. The practice of conducting workplace investigations is often the best way to avoid litigation, as employees who feel their employers have heard their complaints and taken appropriate action are typically less likely to seek redress in court. In the event an employee does decide to pursue legal action, however, an employer’s internal investigation of a complaint can play a crucial role in developing a comprehensive defense against potential claims of liability.
Solution: Conduct Workplace Investigations In a Timely and Effective Manner to Minimize Risk of Legal Exposure to the Employer.
Liquor licenses are state-issued licenses that enable your business to legally sell alcohol. The laws around liquor licenses vary by state and New Jersey has some of the most restrictive liquor license laws in the nation (along with being some of the most expensive). In New Jersey, the Division of Alcoholic Beverage Control (“ABC”) regulates the sale of alcoholic beverages and the conduct of licensees through the issuance of licenses. There are three types of licenses: manufacturing, wholesale and retail. The subject of this article is a “33 License” or a Plenary Retail Consumption license (i.e. the license you need for a restaurant or similar.)
New Jersey law grants individual municipalities substantial discretion in passing ordinances regulating the sale and consumption of alcoholic beverages within their limits. The number of 33 Licenses available is determined by a municipality’s population, and may be further limited by the town’s governing body. As a result, the availability of alcohol and regulations governing it vary significantly from town to town. Retail licenses tend to be difficult to obtain. The market is in high demands and because of this 33 Licenses are subject to exorbitant prices if and when they become available. License holders (“licensees”) resell their license on the private market — subject to limitation. A license may only be used within the municipality that issued it originally. Moreover, any sale must be approved by the issuing authority. Here is how to get a liquor license broken down into four steps.
Employers must give careful consideration to questions asked during the hiring process. While most employers are aware that they cannot ask questions that directly relate to a prospective employee’s protected status (age, gender, religion, national origin, disability, etc.), employers also need to be mindful to exercise care when inquiring into a prospective employee’s criminal history and/or compensation history.
Criminal history inquiries and questions regarding a prospective employee’s compensation history remain an important tool for employers. They are a necessary and vital means by which employers may protect themselves against various forms of liability, including negligent hiring claims. Given the increasing risk of liability, however, employers should proceed with caution with respect to both inquiries throughout the application process.
Solution: Stay Abreast of Any Changes in New Jersey Law and Update Application Materials to Ensure Compliance with Those Changes.
An employer may find itself in a position where, without immediate relief, it may suffer a loss that cannot be made whole by monetary damages alone. For example, a party may feel that a breach of contract or impending breach of contract requires immediate action to protect its interests and prevent further harm. Under these circumstances, the employer may seek injunctive relief in the form of either a preliminary injunction or a temporary restraining order. Preliminary injunctions restrain a party from going ahead with a course of conduct or compel a party to continue with a course of conduct until the case has been decided. A temporary restraining order or a TRO is generally used to prevent irreparable harm and to preserve the status quo until the court decides whether or not to issue a preliminary injunction.
Injunctive relief is a unique remedy with difficult standards and potentially expensive consequences if the employer fails to make its case. New Jersey Courts are to exercise great “caution, deliberation and sound discretion” when considering a party’s request for injunctive relief. Sherman v. Sherman, 330 N.J.Super. 638 (Ch. Div. 1999). When determining whether to pursue this extraordinary remedy, it is recommended that employers seek the advice of counsel to assist in evaluating the likelihood of obtaining the relief sought against the costs associated with seeking such relief.
SOLUTION: Analyze the Likelihood of Obtaining Injunctive Relief Before Making a Determination.
Nearly all 401(k) plans are governed by the Employment Retirement Act of 1979 (“ERISA”). ERISA regulates pension, health & welfare, and other employee benefits including 401(k) programs.
Under ERISA, if owner of an ERISA-governed 401(k) plan dies, their surviving spouse is automatically entitled to 401(k) benefits at the time death, regardless of who has been named beneficiary. Under § 1055 of ERISA, if the owner of a retirement account is married when he or she dies, his or her spouse is automatically entitled to receive at least fifty percent (50%) of the money, regardless of what the beneficiary designation says. The Supreme Court has explained that § 1055 reflects Congress’s intent to “ensure a stream of income to surviving spouses.”
This right of the surviving spouse is triggered regardless of when the assets were accrued or how long the pair has been married. There is an exception to the general rule. Plans are permitted to include a 1-year marriage rule whereby a surviving spouse must have been married to the plan participant for at least 1 year before they may claim a right to 401(k) assets, but, not all plans have adopted this exception.
Regardless of whether you are the spouse who initiated divorce proceedings by filing a complaint with the Court or whether you are the spouse who has just received the divorce complaint, you may be dealing with a range of emotions and unclear as to what steps you should take next. In this situation it may be easy to make sudden decisions or act impulsively which can have long-lasting negative consequences should you do so before understanding your rights and the general divorce process in New Jersey.
If you and your spouse have children, you should together determine the best way to tell them about your pending divorce the changes likely to occur within your family unit. This may mean engaging the assistance of a mental health professional to discuss what approach is in the best interests of your children. Do not speak poorly of your spouse in front of or to your children and try to keep your children separated from the divorce process as much as possible.
Do not make any changes to your insurance policies. This includes the type and amount of coverage, the individuals covered under policies and the beneficiary designation(s) of policies. If you have already made any changes, you will likely have to undo the changes you have made. You should also confirm that your spouse has not made any changes to policies that may be in their control.
The termination of an employee requires careful consideration of business and legal issues. There are various legitimate reasons as to why companies terminate employees including, but not limited to, misrepresentation of experience, education, or qualifications; inadequate job performance; violation of work rules or employer policy; unexcused absences and excessive tardiness; or a reorganization or other significant change eliminates a position or results in a layoff or reduction in force.
You may recall one of our earlier discussions, which focused on the process behind the decision to terminate, including the importance of documenting performance problems. Once the decision to terminate has been made, however, employers face the risk of defending claims against former employees alleging that their employment was terminated for an unlawful reason. Whether or not they have merit, wrongful discharge claims can result in lengthy and expensive legal battles, adverse publicity and damage morale in the remaining workplace.
Solution: Establish Legitimate Reasons for Termination and Deliver the Message Appropriately.
Employees’ use of social media in the workplace can be harmful to employers both legally and from a public relations standpoint. It can decrease company morale in the event employees choose to use social media as a forum to complain about their employer. It can also be costly to employers, as it may result in a loss of productivity during work hours. The use of social media also poses a threat that trade secrets or confidential information will be disclosed, even if done so unintentionally. Given these risks, employers may find themselves inclined to discipline employees for engaging in social media in the workplace, particularly when the subject matter is adverse to the employer.
However, employers seeking to discipline employees for social media posts must consider the application of the National Labor Relations Act (NLRA) to this area before doing so. The NLRA protects the right of employees to exercise “Section 7 Rights,” which guarantees employees the right to self-organize, form, join or assist unions, collectively bargain for changes in wages and working conditions, and engage in other “protected concerted” activities. What constitutes protected concerted activity is relatively broad, but must involve a term or condition of employment (wages, hours, etc.) and must occur for the group’s mutual aid and protection (more than one employee). An employer commits a violation when it engages in conduct that reasonably tends to interfere with the free exercise of employee rights regardless of the employer’s intent. Thus, an employer that discovers through social media that employees are undertaking activities to change their workplace, even if adverse to the employer, must be mindful not to make a negative employment decision based on this information or risk being in violation of the NLRA.
Solution: Adopt a Clear Social Media Policy and Apply it Consistently to All Employees.
Employees are eligible for 12 weeks of unpaid leave under both State and Federal Law. Under Federal law, the Family and Medical Leave Act (“FMLA”) governs employee leaves of absences whereas the New Jersey Family Leave Act (“NJFLA”) governs State leave. While there are some similarities between the two Acts, it is crucial that employers understand the critical differences as well.
Understand the Overlap and Distinctions Between the Two Acts.
FMLA Basics
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