Publications — Page 33 of 50 — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

Thinking About Getting Re-Married? You Might Want To Roll Over What’s In Your 401(k)

Published on: March 5, 2018 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

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.

What To Do When You Are Served With A Complaint For Divorce in New Jersey

Published on: March 5, 2018 | by Nicole A. Kobis

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.

Terminating an Employee: How Do I Deliver the Message?

Published on: March 5, 2018 | by Lisa Gingeleskie

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.

What are the Legal Risks of Disciplining Employees for Social Media Use in the Workplace?

Published on: March 2, 2018 | by Lisa Gingeleskie

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.

Understanding the Overlap and Distinctions Between FMLA and NJFLA

Published on: February 26, 2018 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

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

ROI-NJ’s Cybersecurity Interview with Eric Levine

Published on: February 14, 2018 | by Eric B. Levine

Eric Levine, Co-Chair of Lindabury’s Cybersecurity & Data Privacy practice group was recently interviewed regarding the constant threat of cyberattack facing companies today. Eric says, “No matter how big or small your business, cybersecurity affects you. Companies need to anticipate that they will be a victim at some point, if they are not already. There are two types of companies out there: those that have been breached and those that have but just don’t know it.”

To read the full interview click here.

New Jersey Assembly Makes Headway on Bill to Eliminate Craft Brewery Tour Requirement

Published on: February 9, 2018 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Good news is a brew for New Jersey craft beer advocates. In February 2018, the New Jersey Assembly’s Agriculture and Natural Resources Committee paved the way for the introduction of Bill A2196, which would remove a current licensing rule requiring breweries and distilleries to provide a tour of their facilities before serving alcoholic beverages to consumers. Currently, breweries holding a New Jersey Limited Brewery License are prohibited from selling their brews at the brewery, unless patrons first complete a tour of the premises. This requirement applies to every customer, regardless of whether it is their first or fifteenth visit to a particular brewery, and failure to issue a tour can result in a hefty fine. If passed, Bill A2196 would be the latest step in a number of recent legislative changes aimed at easing New Jersey’s complex and stringent liquor laws.

New Jersey craft beer production has exploded over the past four years. As of February 2018, the New Jersey Craft Beer Association has identified ninety-eight breweries and brew pubs in the State of New Jersey, as well as twenty-four “startup” breweries in the process of obtaining licensing or permits. The growth of craft breweries in the State is in no small part due to a trend in Trenton towards loosening the State’s strict liquor laws by steadily expanding the rights for breweries with Limited Brewery Licensees.

Prior to 2013, breweries were limited to selling their products to licensed retailers and wholesalers. If a brewery was interested in establishing a tasting room, it would be required to obtain a special permit—issued by a different regulatory agency—that limited service to 4 oz. samples. Then, in December 2013, a noticeable shift in policy took hold when the Limited Brewery License was amended to consolidate these laws and permit the consumption of full-sized beers on the premises. The amendment permitted breweries to sell their brews on site for consumption, but only if such beverages were offered in connection with a brewery or distillery tour.

#MeToo: What’s An Employer To Do?

Published on: February 8, 2018 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

The floodgate of sexual harassment allegations spawned by the #MeToo movement is evidence that employers are dropping the ball on fostering work environments free from inappropriate sexual behaviors. The good news is there are simple things an employer can do to prevent workplace harassment from occurring in the first place, and to potentially avoid liability should a suit be filed.

What Should Employers Do to Protect Themselves?

The courts have created a “safe harbor” defense in most instances for employers act reasonably to prevent and address incidents of workplace harassment. Employers may qualify for the defense if they undertake the following actions:

Practical Considerations for Attorneys and Trustees: Trust Decanting After Matter of Kroll

Published on: January 31, 2018 | by Elizabeth Candido Petite

The New York “trust decanting statute” (EPTL 10-6.6) was significantly revised in August 2011. Although commentary and analysis of the new statute appeared almost immediately from practitioners, it was not until late 2013 that the judiciary joined the conversation. In Matter of Kroll,¹ the Surrogate’s Court of Nassau County was faced with a challenge to a trustee’s exercise of appointing trust assets from a lifetime trust to a supplemental needs trust (SNT). The decision is noteworthy not only because it is the first to analyze the revised statute, but also because it serves as an important reminder for all trustees and attorneys to draft flexible trust instruments, to stay current with the needs of beneficiaries, and not to delay when changed circumstances necessitate a change to the trust.

A. Statutory Background

In 1992, New York was at the forefront of trust law when it enacted EPTL 10-6.6, which allowed trustees with unlimited discretion over distributions of principal to appoint trust assets to another trust. The statute was essentially unchanged for almost 20 years, during which time it became evident that the statute had limited applicability. The revised statute now permits all trustees, regardless of their scope of authority, to decant, but they must maintain certain provisions of the original trust in the new trust and cannot eliminate or reduce the interests of current beneficiaries.

2017 Tax Cuts and Jobs Act

Published on: January 25, 2018 | by Anne Marie Robbins

President Trump signed the Tax Cuts and Jobs Act (the “Act”) on December 22, 2017. The Act makes significant changes to the Internal Revenue Code, covering a broad range of income, corporate, and estate taxes. Most of the changes to the Code are effective as of January 1, 2018. Because of Senate rules requiring limits on legislation that increases the federal deficit, many provisions of the Act, including the estate, gift, and generation-skipping transfer (GST) tax provisions, will expire after December 31, 2025.

From an estate-planning perspective, some key takeaways are:

The federal estate, gift, and GST taxes have not been eliminated, as some had hoped. Instead, the exemptions have increased making it less likely that such taxes will be imposed on all but the wealthiest individuals. The base federal estate and gift tax exemption has been doubled to $10 million, indexed for inflation, for tax years 2018 through 2025. The effect is that a single person may now transfer, during life or at death, a total of approximately $11.2 million (the inflation-adjusted figure), or $22.4 million for a married couple. The GST tax exemption has also increased to a like amount.