Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

NLRB Gives Employers Several Reasons to Be Jolly This Holiday Season

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Posted in Labor

On December 28, 2017

December 2017 has been one for the labor law community to remember. We have seen a wintry flurry of actions by the newly-constituted National Labor Relations Board (NLRB), which has begun a much anticipated releveling of the playing field between Big Labor and Corporate America in the aftermath of profound pro-union actions under the prior administration. On the heels of an instructive and potentially predictive memorandum issued by the Board’s new General Counsel, the NLRB raised questions about the 2014 “quickie” election rule and issued a number of decisions setting forth more neutral standards for analyzing significant legal issues under the National Labor Relations Act (NLRA), including: an administrative law judge’s ability to accept a charged party’s proposed settlement terms; when multiple employers should be deemed “joint employers” under the NLRA; an employer’s ability to take unilateral action consistent with its past practices; the legality of workplace rules that do not expressly prohibit concerted activities protected by the NLRA; and appropriate collective bargaining units. New NLRB General Counsel’s First Memorandum On December 1, 2017, the NLRB’s new General Counsel, Peter B. Robb, issued a memorandum leaving little doubt that he has a very different view of the NLRA than his predecessor on several key issues. In the memorandum, the General Counsel—who is responsible for investigating and prosecuting unfair labor...

Tax Bill Effects the Use of Nondisclosure Provisions in Settlements of Sexual Harassment and Sexual Abuse Claims

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Posted in Discrimination

On December 22, 2017

While the Tax Cuts and Jobs Act (“the Act”), signed into law today, has received considerable media coverage, a provision included in the Act that affects the ability of employers to deduct settlement payments and attorney’s fees for claims involving sexual assault or sexual harassment has received little attention. Nonetheless, this provision will have a significant impact on how employers resolve claims of sexual harassment and sexual abuse. Specifically, the Act provides that any settlement or payment related to claims of sexual harassment or sexual abuse may not be deducted as a business expense if the payments are subject to a nondisclosure agreement. The Act also provides that any attorney’s fees incurred related to such a settlement with a nondisclosure agreement may not be deducted. The new law applies to “any settlement or payment related claims of sexual harassment or sexual abuse” whether or not a lawsuit has actually been filed. Importantly, these provisions are effective immediately, and thus all payments made after the effective date of the Act in connection with the settlement of a sexual harassment or a sexual assault claim are subject to these new provisions. Read literally, the new law precludes employers from deducting the amounts of such settlements for payments made after the effective date of the Act even if...

The Push for Pay Equity Legislation in New Jersey

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Posted in Discrimination

On December 12, 2017

Equal pay for equal work is by no means a new concept. Achieving pay equity, defined as eliminating sex (and other) discrimination in the wage-setting system, has been debated for decades. Recently, however, pay equity has become a significant public issue, prompting many state and local governments to enact legislation aimed at eliminating pay disparities, with a strong focus on closing the gender wage gap. To date, attempts to pass pay equity legislation in New Jersey have been unsuccessful. However, with the recent election of Phil Murphy as governor, pay equity legislation in New Jersey appears almost certain. In this recent article published by the New Jersey Law Journal, Suzanne Herrmann Brock, Elizabeth Cowit, and Brittany E. Grierson provide insight into the most recent developments in state and local pay equity laws and discuss legislation on the horizon for New Jersey.

James R. Zazzali Named Ethics Counsel to Gubernatorial Transition

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Posted in Elections

On November 15, 2017

Governor-elect Phil Murphy today announced his appointment of James R. Zazzali, Of Counsel at Gibbons P.C. and former Chief Justice of the New Jersey Supreme Court, to serve as ethics counsel to Transition2018. In this role, Mr. Zazzali will ensure transparency in the transitional campaign’s operations and compliance with state ethics laws on the part of all gubernatorial transition staff, committees, and volunteers. Gary Stein, a former Associate Justice on the New Jersey Supreme Court, was also appointed as ethics counsel to Transition2018. “James Zazzali has a lengthy and highly regarded history of civic engagement and dedicated service to the state of New Jersey,” says Patrick C. Dunican Jr., Chairman and Managing Director of Gibbons. “Those of us at the firm are well aware of the exceptional qualifications that Governor-elect Murphy clearly recognized in appointing him to the transition team.” “I am honored that Justices Zazzali and Stein will be ensuring that my transition lives up to the highest standards of ethics and transparency, and will set the tone for my administration,” said Murphy. “They are giants in the law community and are respected statewide. Their leadership and guidance will be invaluable.” Mr. Zazzali joined Gibbons in 2007, after retiring from the bench. He had served on the Supreme Court for over six years, and...

Rule 37’s “Meet and Confer” Requirement Gaining Steam in Discovery Disputes

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Posted in Patent

On November 14, 2017

Merz N. Am., Inc. v. Cytophyl, Inc. is the latest federal district court decision analyzing the meet and confer requirement of Federal Rule of Civil Procedure 37. As discovery issues continue to dominate the first 12 to 18 months of civil litigation (depending on the jurisdiction), litigators should review recent decisions, at least one of which denied a discovery motion for failure to adequately meet and confer. Under Rule 37(a)(1), a party moving to compel discovery must certify that it “has in good faith conferred or attempted to confer with the person or party failing to make . . . discovery in an effort to obtain it without court action.” Because neither the Rule nor the advisory notes accompanying it specify which methods of conferring are appropriate, individual courts have interpreted Rule 37’s meet and confer requirement through local rules and judicial decisions. For example, the Local Rules for the Eastern District of Texas require, “at a minimum, a personal conference, by telephone or in person, between an attorney for the movant and an attorney for the non-movant.” Further, while some courts have addressed the merits of a motion to compel despite a failure to adequately meet and confer, see, e.g., Buskirk v. Wiles, 2016 U.S. Dist. LEXIS 168081 at *7 (S.D. W. Va. Dec....

Murphy Announces Transition Team Chairs and Co-Chairs

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Posted in Elections

On November 13, 2017

This morning, Governor-elect Murphy released his transition committees and the committees’ chairs and co-chairs. In announcing the specific policy committees and their leadership, the Governor-elect stated that the “co-chairs boast a rich diversity of both background and experiences, of valuable government experience and unique outside perspectives.” The Governor-elect’s full press release with the list of transition leaders can be found here.

Third Circuit Affirms that Short Breaks, Treated as Flex Time, are Compensable

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Posted in Wage and Hour

On October 27, 2017

On October 13, 2017, the Third Circuit held in Secretary United States Department of Labor v. American Future Systems, Inc., that under the Fair Labor Standards Act (FLSA), an employer was required to compensate employees for all breaks of twenty minutes or less that the employer treated as flex time for the employees. Facts and Analysis Defendant American Future Systems, d/b/a Progressive Business Publications (“Progressive”) employed sales representatives to sell its business publications. The sales representatives were paid on an hourly basis, but only when logged onto their computers. In 2009, Progressive eliminated its policy that permitted employees to take two 15 minute paid breaks per day and replaced it with a “flexible time” policy. The flexible time policy allowed sales representatives to “log-off the computer system at any time of the day, for any reason, and for any length of time, at which point, if they so choose, they may leave the office.” Employees were required to log off their computers if they were “not on an active sales call, recording the results of a call, engaged in training or administrative activities, or engaged in other activities that Progressive considers to be work-related.” If sales representatives were logged out of their computers for over 90 seconds, they were not compensated for this flexible time....

Gibbons Ranked Best Law Firm and Best Lobbying Firm in Inaugural NJBIZ Reader Rankings

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Posted in Federal Lobbying / Firm News

On September 26, 2017

Gibbons P.C. has been selected as the best law firm and the best lobbying firm in New Jersey in the inaugural NJBIZ Reader Ranking Awards. The Reader Rankings were compiled through an online survey seeking the best of the best in a wide range of categories and subcategories. According to NJBIZ, “The publication of the 2017 Reader Rankings by NJBIZ is our way of recognizing the regard our readers have for the businesses in their communities. What makes the companies listed here distinct is the devotion they inspire among our region’s business leaders.” Gibbons has been recognized by numerous organizations and publications for the firm’s work on behalf of clients, including being named among the New Jersey Law Journal’s Litigation Departments of the Year, earning the top overall honors in 2014, as well as recognition for the practice areas of class actions (2017), products liability (2016), and commercial litigation (2013). The Gibbons Government Affairs Department has ranked as the #1 lawyer-lobbying firm in New Jersey for nine consecutive years, according to the New Jersey Election Law Enforcement Commission In addition, the firm and Gibbons attorneys are also consistently recognized in annual client-review publications such as the Chambers USA Guide to America’s Leading Lawyers for Business, Best Lawyers®, and Super Lawyers.

NJDEP Announces Change to Remediation Standards for Certain Contaminants

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Posted in Development/Redevelopment / Environmental and Green Issues

On September 20, 2017

On September 18, 2017, the New Jersey Department of Environmental Protection (“NJDEP”) announced updated soil remediation standards for 19 contaminants. The updates are based on changes to toxicity data for the specified contaminants maintained by the United States Environmental Protection Agency in the agency’s Integrated Risk Information System database. Responsible parties and others conducting cleanups should consult with their Licensed Site Remediation Professionals and other environmental consultants regarding the applicability of the new standards to their sites. The new standards are in effect as of September 18, 2017. A copy of the updated standards can be viewed at NJDEP’s website.

Mere Fact That Application Would Bring Development Closer Into Compliance With Zoning Code Insufficient to Warrant Grant of Site Plan Approval and Variance, N.J. Appellate Division Affirms

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Posted in Development/Redevelopment

On August 2, 2017

The New Jersey Appellate Division recently affirmed denial of an application for site plan approval and variance relief despite an applicant’s contention that the application’s issues identified by the Planning Board were too minor to justify denial of the application that would bring the subject property into conformity with the zoning code. Although unpublished and nonbinding, the decision confirms New Jersey courts’ broad deference to local boards in this state, making clear that if a land use board’s legitimate concerns are not addressed by an application, the mere fact that the application would bring a property into conformity with the local zoning code is insufficient to secure a variance under New Jersey’s Municipal Land Use Law. In World Wheat Foundation, Inc. v. Planning Board of the Township of Saddle River, et al., a church-based, not-for-profit organization, sought site plan approval and variance relief to convert a property that previously served as a residential facility for the elderly into a vocational school to assist Korean families with language and the arts. The previous facility ceased operations more than two years prior to the application. The property was situated in the Township’s Secondary Business Zone, in which the former residential facility was not a permitted use, but the proposed vocational school was permitted. The applicant also sought...

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