Gibbons Law Alert

On June 30, 2011

Reversing the Second Circuit, the Supreme Court on June 20, 2011 held, in American Electric Power Company v. Connecticut, that the Clean Air Act, along with EPA regulatory action that it authorizes, displaces any federal common-law right to seek abatement of emissions of greenhouse gases (GHGs) from power plants. The Court’s decision means that for the foreseeable future, the debate over the proper scope of federal GHG regulation will take place in the executive and legislative branches and not the courts. It also leaves unanswered the question whether traditional state common-law remedies still have a role to play in GHG regulation.

SEC Adopts Final Rules Implementing the Dodd-Frank Whistleblower Program

by Gibbons P.C.

Posted in Whistleblower

On June 30, 2011

Publicly traded employers should be aware that the U.S. Securities and Exchange Commission (“SEC”) recently adopted Final Rules implementing the whistleblower program under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Act”). Consistent with the Final Rules, which become effective on August 12, 2011, employers should not interfere with an employee’s efforts to communicate with the SEC or take any adverse actions against an employee for exercising his or her rights under the whistleblower program. In addition, employers should have clear policies in place for employees to be able to report any perceived violations of federal securities laws and employees should be trained on the procedures for reporting any such violations. The Act creates a private right of action for whistleblowers who have suffered retaliation and remedies include reinstatement, double back pay with interest, litigation costs, expert witness fees, and reasonable attorney’s fees.

Can a USERRA Claim Be Released as Part of a Separation Agreement?

by Kelly Ann Bird

Posted in Employment Agreements

On June 27, 2011

In the most recent issue of the New Jersey Labor & Employment Quarterly, Kelly Ann Bird and Zeenat Basrai analyze whether an employee can release claims under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) as part of a separation agreement. The scant caselaw construing USERRA has resulted in confusion over whether USERRA claims can be waived, and if so, what language a waiver must include to be enforceable. The article discusses practical steps employers can take to protect themselves from an employee bringing a USERRA claim after signing a separation or settlement agreement, such as drafting the waiver using clear and unambiguous language and giving the employee sufficient time to review and consider the agreement before signing it.

U.S. Supreme Court Backs Wal-Mart and Halts One of the Most Expansive Class Actions in History

by Kristin D. Sostowski

Posted in Discrimination

On June 23, 2011

On June 20, 2011, the U.S. Supreme Court issued its much-anticipated decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. __ (2011). The decision reversed the Ninth Circuit’s 2010 en banc decision and effectively halted what would have been the largest employment discrimination class action in history against the nation’s largest private employer. The Court’s 5-4 opinion is a decisive victory for businesses that reshapes the landscape for employment-related class action litigation and class action litigation in general.

The Gibbons Employment Academy Webinar Series – Disability and Reasonable Accommodations

by Kelly Ann Bird

Posted in Policies and Handbooks

On June 23, 2011

The second program in our Gibbons Employment Academy Webinar Series, focusing on Disability and Reasonable Accommodations, is scheduled for next Wednesday, June 29, from 8:30 to 10:30 am. The ADA Amendments Act of 2008 and the EEOC’s recently issued regulations explaining and implementing that Act have been widely touted as significantly expanding the definition of disability. It is anticipated that as a result of the Act, more employees than ever before will be considered disabled and will be seeking accommodations. Employers must understand what is deemed a disability under the law and what steps are necessary when employees request accommodations for their disabilities. The webinar will explore these topics as well as provide a survey of accommodations that have been deemed reasonable and those that have not.

EPA to Announce the Possibility of Adding Vapor Intrusion as a Component to the Hazard Ranking System

by Gibbons P.C.

Posted in Development/Redevelopment / Environmental and Green Issues

On June 21, 2011

On Monday, January 3, 2011, the Environmental Protection Agency published in the Federal Register, 76 Fed. Reg. 5,370 (Jan. 31, 2011), a Notice of Opportunity for Public Input on the Potential Addition of Vapor Intrusion Component to the Hazard Ranking System (the “HRS”). Should this proposal become a rule it would add another contamination pathway to analyze in connection with listing sites on the National Priorities List (the “NPL”).

Notes From the E-gallery: Live texts, tweets and postings by courtroom observers present new challenges

by Stephen J. Finley, Jr.

Posted in E-Discovery: Legal Decisions and Court Rules

On June 20, 2011

Courts frequently grapple with questions raised by the use of social media in the legal process. From the admissibility of social media to limitations on its use by jurors, courts are continuing to develop new tools and best practices to ensure the outcome of a case is not impacted by social media sites. While the issues raised by new social media technologies have primarily concerned those actually involved in a trial (i.e., the parties, their counsel, and members of the jury), that is beginning to change. Outside observers and news reporters are utilizing social media to report on trial happenings, sometimes in real-time.

Six New Jersey Communities Will Share $3.4 Million in EPA Brownfield Grants

by Paul M. Hauge

Posted in Environmental and Green Issues

On June 20, 2011

The EPA has announced that six different New Jersey communities will receive a total of $3.4 million under the agency’s brownfield grant program in FY 2011. The grants will fund assessment and cleanup efforts at contaminated sites so that the sites can be returned to productive use. The grant program, part of EPA’s larger brownfield efforts, will award some $76 million in grants this year, and has awarded over $800 million since its inception. New Jersey’s grants will fund activities at thirteen sites or areas in Newark, Jersey City, Trenton, Elizabeth, Mantua Township, and Maurice River Township.

Supreme Court Affirms Patent Validity Presumption Standard

by Gibbons P.C.

Posted in Patent

On June 20, 2011

In a unanimous 8-0 concurrence (CJ Roberts took no part), Microsoft Corp. v. i4i Ltd. Partnership, 564 U.S. (2011) (Decided June 9, 2011), the Supreme Court approved the Court of Appeal for the Federal Circuit’s long standing rule that clear and convincing evidence is required to prove a patent invalid. In unequivocal language, the Court held that 35 U.S.C. § 282 “requires an invalidity defense to be proved by clear and convincing evidence.” Slip Op. at 1.

NJ WARN Act May Apply to Parent and Affiliated Companies

by Gibbons P.C.

Posted in Reductions in Force

On June 20, 2011

The Millville Dallas Airmotive Plant Job Loss Notification Act (the “New Jersey WARN Act”), may apply not only to the direct employer, but also to parent and affiliated companies if certain factors are present. In DeRosa v. Accredited Home Lenders, Inc., et al., the New Jersey Appellate Division concluded that, “in determining single-employer status under the New Jersey WARN Act, [] courts should apply the five-factor test” applicable to its federal counterpart, the Worker Adjustment and Retraining Notification Act of 1988 (the federal WARN Act). Those factors, set forth at 20 C.F.R. 639.3(a)(2) are:”(i) common ownership, (ii) common directors and/or officers, (iii) de facto exercise of control, (iv) unity of personnel policies emanating from a common source, and (v) the dependency of operations.” The appellate court left open the possibility that other tests may also apply, such as the common law standard for piercing the corporate veil and the integrated enterprise or integrated employer tests.