Publications — Page 8 of 50 — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

Rules and Regulations Every Medi-Spa Owner Needs to Understand

Published on: May 22, 2023 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

In today’s market, many spas are looking to expand their service lines to include cosmetic medical services, such as laser therapies, IV hydration, and Botox treatments. With the prevalence of cosmetic medical services on the rise, people are now electing to receive these treatments in a spa setting – as opposed to a traditional medical office. Regulations abound, yet, they often fail to provide spas with direct guidance on these emerging services and the technological advancements in treatments. When forming a spa that provides cosmetic medical services (a “medi-spa”), there are a number of issues a business owner should consider.

First, it is critical to understand whether a medi-spa needs a state license or registration to operate. If a license or registration is required, it often must be obtained in order to form the entity itself. The time it takes to obtain any necessary license or registration can also impact the medi-spa’s application to state tax authorities during the formation process.

Second, it is critical to understand what licensing boards regulate the medi-spa and its professionals. For example, estheticians are typically regulated by a state cosmetology board. Healthcare professionals can be regulated by a variety of boards, including but not limited to boards of medical examiners, nurses, chiropractors, pharmacists, and dieticians. Each board has its own applicable rules and regulations, which often require certain credentialing and limit the scope of services the licensed individual can provide.

Five Tips for Successful Co-Parenting

Published on: May 15, 2023 | by Nicole A. Kobis

Co-parenting can be a challenging but rewarding journey for both parents and children. Whether you’re co-parenting after a divorce, separation, or just sharing the responsibility of raising a child, it’s essential to establish a healthy co-parenting relationship to ensure the well-being of your child.

Five Tips for Successful Co-Parenting:

Communication is Key

Terminated Employee Who Tested Positive for Marijuana After a Workplace Driving Accident Can Pursue His Wrongful Termination Claim

Published on: May 3, 2023 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

A recent decision from the New Jersey District Court illustrates the extraordinary job protections for recreational marijuana users under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”).

THE LEGAL BACKDROP

The job protection provisions of CREAMMA prohibit employers from disciplining employees “solely due to the presence of cannabinoid metabolites in the employee’s body fluid.” Although CREAMMA expressly permits workplace reasonable suspicion, post-accident and random testing for marijuana, it also mandates a physical evaluation be conducted “by an individual with the necessary certification” to determine the employee’s current state of impairment before discipline can be imposed. The physical evaluation requirement was included because current tests can only determine recent marijuana use, not current impairment. However, the physical evaluation requirement was temporarily waived by regulation until such time that the NJ Regulatory Cannabis Commission (the “Cannabis Commission”) develops standards for a Workplace Impairment Recognition Expert (“WIRE”) certification. Thus, for the time being a physical evaluation is not a prerequisite for taking action against an employee who tests positive for cannabis.

New Jersey Court Ruling: Private Social Media Posts Are Subject To Discovery

Published on: March 23, 2023 | by Lisa Gingeleskie

On March 16, 2022, the New Jersey Appellate Division concluded in Davis v. Disability Rights of New Jersey that a plaintiff-employee’s privacy interests in her social medial posts and personal cell phone bills did not restrict her employer’s right to the production of these records when defending against claims that the plaintiff’s termination violated New Jersey’s Law Against Discrimination (the “NJLAD”) and caused her to suffer emotional distress. This decision is the first in New Jersey to detail the scope of discovery regarding a litigant’s private social media posts.

The Background

In Davis, the plaintiff filed a NJLAD complaint against her former employer alleging wrongful termination and emotional distress. In its discovery requests, the employer demanded that the plaintiff produce copies of all her social media content “concerning any emotion, sentiment or feeling of [p]laintiff, as well as events that could reasonably be expected to evoke an emotion, sentiment, or feeling.” The employer also sought the production of the plaintiff’s personal cell phone bills on the grounds that she had used her personal cell phone to perform work duties remotely.

The United States Supreme Court Rules Highly Paid Employees May Still Be Eligible For Overtime

Published on: March 14, 2023 | by Lisa Gingeleskie

On February 22, 2023, the United States Supreme Court in Helix Energy Solutions Group, Inc. v. Hewitt held that a highly compensated executive employee paid a guaranteed daily rate is not paid on a ‘salary basis’ and therefore, is a nonexempt employee entitled to overtime pay under the Fair Labor Standards Act (FLSA). The decision should alert employers to review their classification of employees as exempt versus nonexempt to ensure compliance with applicable federal and state requirements.

The Fair Labor Standards Act

While the FLSA requires that most employees be paid overtime for work time in excess of 40 hours, it exempts several categories of positions from that requirement. The most common exemptions from overtime are referred to as the “white-collar exemptions,” which include executive, administrative, professional, outside sales, IT professionals, and highly compensated executive positions.

New Jersey Passes Landmark Legislation Expanding Temporary Workers’ Rights

Published on: February 14, 2023 | by Lisa Gingeleskie

On February 6, 2023, Governor Murphy signed new legislation into law significantly expanding the rights of temporary workers. The law, known as the “Temporary Workers’ Bill of Rights” (A1474/S511), is aimed at advancing pay equity, increasing government oversight of temporary staffing agencies, and prohibiting retaliatory conduct against temporary workers. A1475/S511 applies to workers in designated classifications, including protective services, food preparation, construction labor and trade, personal care services, and building, grounds cleaning, and maintenance occupations. The range of protections afforded by the new law, as outlined below, are expansive and will have significant implications on staffing agencies as well as third-party clients who utilize these agencies to place temporary workers.

New Protections

Equal Pay and Benefits

The Responsibilities and Duties of an Executor

Published on: February 6, 2023 | by James K. Estabrook and Elizabeth Candido Petite

After someone passes away, their estate must be administered. This is true whether the person was worth $10,000 or $10 million. The process of administering the estate is often the same regardless of its value. This article discusses the basic process of estate administration and the duties of the executor, who is the person or persons responsible for the process.

Appointment to act on behalf of the estate

The first step for an executor (or administrator, if there is no Will) is to be appointed by the local Surrogate’s Court as executor. In New Jersey, this is a simple process where the Will and death certificate are presented to the court, along with the names and addresses of the next-of-kin and beneficiaries named in the Will. Assuming everything is in order, the Surrogate will admit the Will to probate and issue a Certificate of Letters Testamentary to the executor, which serves as his or her official appointment to act on behalf of the estate. The executor is then responsible for notifying all heirs and beneficiaries that probate has been completed.

The Uses of Grantor Trusts in Estate Planning

Published on: February 6, 2023 | by Anne Marie Robbins

Grantor trusts can provide substantial estate and income tax savings to those who establish them. The grantor of a “grantor trust” is treated as the owner of the trust assets for federal income tax purposes. The grantor continues to pay the income tax generated by the assets contributed to the trust and receives the benefit of all deductions and credits. Whether the grantor trust property is excluded from the estate of the grantor, and thus escapes estate tax, is dependent on the drafting of the trust. The rules regarding grantor trusts can be found in Sections 671 through 679 of the Internal Revenue Code. [1]

It is beneficial for the grantor to be treated as the income tax owner of a trust because trusts have more compressed tax brackets than do individuals. For example, in 2022, individuals were taxed at the highest marginal rate of 37% on income over $539,900, or $647,850 for married taxpayers.[2] Trusts, however, reached the top marginal rate of 37% at income above $13,450.[3]

In general, the following provisions in a trust will create a “grantor trust.”

New Jersey Implements WARN Act Amendments Mandating Severance for Mass Layoffs and Business Closures

Published on: January 19, 2023 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

On January 10, 2023, Governor Murphy signed legislation implementing amendments to the Millville Dallas Airmotive Plant Job Loss Notification Act (“NJ WARN Act”) that were placed on hold during the COVID-19 pandemic. The amendments, which go into effect on April 10, 2023, impose new requirements on employers of 100 or more who implement mass layoffs or plant closures.

Background

Governor Murphy initially signed an amended NJ WARN Act on January 21, 2020, which was scheduled to take effect on July 20, 2020. However, in April 2020, the Governor signed Executive Order 103 declaring COVID-19 a public health emergency and postponing the effective date of NJ WARN Act amendments until 90 days after the conclusion of the state of emergency. Although the COVID-19 state of emergency remains in effect, the Legislature “unlinked” the amended NJ WARN Act from the state of emergency, thus permitting the implementation of the amendments to take effect on April 10, 2023.

Pay if Paid Provisions in New Jersey

Published on: January 19, 2023 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Recently, the New Jersey Appellate Division affirmed the Superior Court’s decision in Jersey Precast v. Enterprises, Inc. et al. Particularly, the December 7, 2022, decision affirmed the lower court’s finding that a “pay-if-paid” clause in a material supplier’s purchase order with a general contractor was binding and enforceable. The court in Jersey Precast, acknowledged that New Jersey has no statute or published caselaw that addresses the enforceability of “pay-if-paid” clauses. As such, the court relied upon the authorities and approaches of other jurisdictions. For example, various courts in other states require such a clause to include clear and unambiguous language in order to for a “pay-if-paid” to be enforceable. See e.g. Main Elec., Ltd. v. Printz Servs. Corp., 908 P.2d 52, 528 (Colo. 1999) (stating “…the relevant contract terms must unequivocally state that the subcontractor will be paid only if the general contract is first paid by the owner and set forth the fact that the subcontractor bears the risk of the owner’s nonpayment”); DEC Elec., Inc. v. Raphael Constr. Corp., 558 So. 2d 427, 429 (Fla. 1990) (stating risk-shifting provisions of a pay-if-paid term must be clear and unambiguous or, if ambiguous, interpreted as setting a reasonable time for payment). Moreover, at the federal level pay-if-paid clauses are typically enforceable where there is express contractual language that clearly demonstrates the intention of the parties to shift the risk of payment from the contractor to the subcontractor. See Fixture Specialists, Inc. v. Global Construction LLC, 2009 WL 90431, at *4-6 (D.N.J. March 30, 2009).

Using the above standards as guidance, the Appellate Division in Jersey Precast, critically pointed out that in New Jersey freedom of contract is a “‘is a factor of importance'” within “the framework of modern commercial life.” See Whalen v. Schoor, DePalma & Canger Grp., Inc., 305 N.J. Super. 501, 505-06 (App. Div. 1997). It is a “settled principle that parties bargaining at arm’s-length may generally contract as they wish.” Id. at 505. To that end the court held that, “parties may make contractual liability dependent upon the performance of a condition precedent.” See Duff v. Trenton Beverage Co., 4 N.J. 595, 604 (1950). The Appellate Division further articulated that a prohibition against the use of pay-if-paid provisions as conditions precedent in construction contracts should come from the legislature rather than the courts, and as such, held that as long as the contract specifies a clear and unambiguous intent and agreement by the parties to shift the risk of nonpayment, a pay-if-paid provision is enforceable subject to the parties’ implied duty to not frustrate conditions precedent to their performance.

Key Takeaways