Articles Posted in Business Law

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The Federal Fair Labor Standards Act, like New Jersey’s Wage and Hour Law, requires that employees as a general rule must be paid a specified minimum wage, and overtime when they work more than 40 hours per week.  However, certain classes of employees are exempt from these requirements.  Thus, nonexempt employees need to be paid minimum wage and overtime, while exempt employees do not.  Inus-supreme-court-300x200 order to be considered an exempt employee under the exemption for “professional” employees, an employee must be paid on a “salary basis,” make at least $684 per week, and her work must require advanced knowledge in a field which is normally acquired “by a prolonged course of specialized intellectual instruction; or… requires invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.”

The United States Court of Appeals for the Third Circuit, which hears appeals from the Federal trial courts in New Jersey, Pennsylvania, Delaware, and the United States Virgin Islands, recently examined the professional employee exemption in the case of Stephanie Higgins v. Bayada Home Health Care Inc.

Background

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New Jersey Business Law and Liquidated Damages

Business parties draft contracts to give them a measure of certainty in their future relationship.  However, it is not a secret that contracts are frequently breached, so parties often want a degree of certainty about what able-account-300x214will happen in the event of a future breach.  This gives rise to greater likelihood that the contract will be performed, and hopefully limits litigation costs if there is a breach.  However, New Jersey business law, and indeed contract law generally, prohibits penalties in contracts.  Thus, damages for breach of contract must reflect actual damages to put the innocent party in as good a place as it would have been had the breach not happened, rather than a greater amount to penalize a breaching party.

But when drafting a contract for a business relationship which will be performed in the future, it is often impossible to know what the amount of damages will be.  Too many things are unknown, such as whether the relationship will be profitable and if so how profitable; and how much time will remain on the contract when a breach occurred, and thus how long the damages will accrue.   For this reason New Jersey contract law allows for liquidated damages.  Liquidated damages are an estimate of actual damages included in a contract to give more certainty about what will happen in the event of a breach.  But liquidated damages must be a good faith estimate of actual damages in order to be valid and enforced.

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New Jersey employees have significant protections during mass layoffs under New Jersey employment law.

In 1988 the United States Congress passed the Worker Adjustment and Retraining Notification Act (the “WARN” Act).  The Act went into effect in 1989.  The purpose of the Act was to try to assist employees with large layoffs orwarn-300x201 large plant or factory closures. The Act essentially required advanced notice and other assistance to workers so that they would have time to find other employment.

In December of 2007 New Jersey passed its own Act similar to the federal WARN Act which was officially called the Millville Dallas Airmotive Plant Job Loss Notification Act, but is often just referred to as the New Jersey WARN Act in reference to its federal counterpart.

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New Jersey is one of the most employee-friendly states in the nation; and its becoming more and more employee-friendly every year. On February 6, 2023, Governor Murphy signed the Temporary Workers’ Bill of Rights Act into law.  This law clarifies and expands employee protections for non-exempt (hourly) employees who work forphoto__1894482_mclaughlin_nardi_4712 temporary staffing agencies.

As a preliminary matter, it is important to note that this Act does not apply to all temporary workers.  Indeed, a prior version of the law was vetoed by Governor Murphy who requested a narrower application of the law. As a result, the final law defines “temporary laborers” as those who contract for employment in a “designated classification placement” with a temporary staffing agency. “Designated classification placement” is further defined to include:

  • Food Preparation and Serving Related Occupations;
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This past Spring, SWANA’s (Solid Waste Association of North America) New Jersey Chapter returned to their live Annual Conference following a two-year hiatus resulting from the Covid-19 pandemic.

The conference covered a wide range of topics related to the solid waste industry and New Jersey solid waste law, including safety in wastedump-truck-1396587__180 transportation, to the recent implementation of the plastic bag ban across the State, to fleet innovation and modernization. SWANA NJ panelists in fact noted that solid waste transporters are 10 times more likely to have fatalities than workers in other industries and that waste haulers have the 6th most dangerous job in the United States (more dangerous than firefighters).  Interestingly, statistics show that most accidents occur in March and June which – it is speculated – may be the result of an influx of pedestrians during these months.  It is therefore recommended that waste transporters increase their safety meetings, briefings, and/or reminders to drivers and workers around these time periods.

SWANA’s national organization emphasizes their 5 tips for safe work practices.  First, always wear Personal Protective Equipment.  This is not limited to Covid masks.  PPE for waste haulers may include high visibility vests and/or outerwear.  Second, never use your cell phone while driving or working.  Besides being illegal, distraction from cell phone use is a huge factor in accidents.  Third (and mostly for municipal waste transporters) don’t ride on the step if the truck is backing up or traveling at more than 10 mph or for more than 1/5th mile at a time. Fourth, always comply with safety belt rules. Fifth, never speed and never rush.

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New Jersey law imposes certain requirements on the behavior of employees, whether through the common law or contract.  New Jersey employment law and business law will enforce restrictive covenants, including non-compete agreements, if they meet certain requirements.  However, the tests for enforceability are different for restrictive covenants contained in employment agreements and those  which are part ofstock-photo-4786200-handshake-at-the-business-meeting the sale of a business.  Likewise, whether or not there are restrictive covenants, New Jersey employment law imposes on employees a duty of loyalty to their employers.  The Appellate Division recently examined these requirements.

Background

Robert Ryerson was a registered investment advisor (RIA), providing financial planning and investment services until the National Association of Securities Dealers (NASD) found him guilty of misconduct in 2006 by sharing commissions with non-NASD members and intentionally misleading his employer.  Ryerson owned and operated NCP, a small financial advisory firm.  However, the NASD’s revocation of his license meant he could no longer operate NCP.

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New Jersey business law gives owners the ability to choose between different forms of entities to meet their particular concerns.  The choice is important and has long lasting effects.  Below is ansmall-business-300x215 overview of the basic types of business entities allowed by New Jersey business law.

‍General Partnership

A general partnership is an entity where two or more people own a single business and have not formed any other form of business entity.  The partners own the business and are personally responsible for the business’s debts and obligations, so if the business goes out of business they partners must still pay the business’s debts.  A partnership may be “de facto,” where the partners are acting together but have taken no steps to formalize their relationship; or it may be “de jure,” where they have formalized their relationship and how the business will be run.  There is no income tax at the entity level in a general partnership, meaning there is more revenue to be distributed as profit to the owners.  While a de facto partnership will exist without a partnership agreement, it is important to have a well written partnership agreement to ensure the smooth operation of the business and to avoid disputes between the owners.

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In an important New Jersey employment law ruling, the State Supreme Court held that an employer’s decision to terminate or otherwise take action against an employee influenced by the discriminatory bias of a subordinate, rather than the decisionmakers themselves, nonethelessgavel-300x200 violates the New Jersey Law Against Discrimination.

Background: Meade’s Employment

In the case of Michele Meade vs. the Township of Livingston, the Court explained that Michele Meade was the Township Manger for Livingston Township from 2015 until she was terminated by the Township Council in 2016.  She was the first female Township Manager in Livingston’s history.  She was replaced by a male candidate although there were female candidates, and when her replacement quit he was replaced by another male candidate.

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Owners often choose to form their businesses as corporations or limited liability companies under New Jersey business law.  The case of Colonial Records Storage, LLC v. Simpson, where a creditor tried to get individual liability against a lawyer who was a shareholder in a law firm operating as a corporation, illustrates exactly why.

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Background

The law firm of Stein Simpson & Rosen was a New Jersey professional corporation; Nancy Simpson was an attorney with the firm and was a shareholder, or owner.  A professional corporation operates under the same rules as a regular corporation, except that a professional corporation provides professional services such as those of lawyers, doctors, etc., and the shareholders may be personally liable for professional negligence, or malpractice in the course of providing those professional services.  The law firm went out of business, although it had not formally dissolved.  Simpson retired.

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The Increase

New Jersey’s minimum wage rate is going up again.  The new minimum wage rate during this incremental increase is $13 per hour effective January 1, 2022.stock-photo-20612112-woman-leading-business-team

Background

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