Gibbons Law Alert

Gibbons Law Alert Blog

New Jersey Enacts and Expands Laws Providing Employees With Enhanced Benefits and Protections Resulting From COVID-19

On March 30, 2020

New Jersey Governor Phil Murphy has recently signed into law two important bills – one (AB 3848) providing job protection to certain employees impacted by COVID-19 (“the COVID-19 Act” or “Act”), and the other (S2304) expanding the scope of the New Jersey Earned Sick Leave Law (ESLL), the New Jersey Family Leave Act (FLA), and the New Jersey Temporary Disability Law (“TDBL”). The Act, along with the amendments to the existing laws referenced above, are discussed below and are intended to increase protection and benefits to employees as a result of COVID-19. Job Protection for Certain Employees Who Take Time Off Due to Infectious Disease Under the COVID-19 Act, during the Public Health Emergency and State of Emergency declared by Governor Murphy concerning the coronavirus, employers are prohibited from terminating or refusing to reinstate an employee who requests or takes time off from work, for a specified time period, at the recommendation of a licensed New Jersey medical professional because the employee has or is likely to have an infectious disease that could infect others in the employee’s workplace. Upon the employee’s return from time off, he or she must be reinstated to the same position held when leave began, with no reduction in seniority, status, employment benefits, pay, or other terms and conditions of...

Redacted Use of Force Report in Which the Subject of the Force Is a Minor Must Be Disclosed, Appellate Division Holds

by Gibbons P.C.

Posted in Appellate

On March 27, 2020

A recent Appellate Division decision provides for increased transparency into the activities of law enforcement, ruling that a use of force report (“UFR”) involving a minor should not have been withheld under New Jersey’s Open Public Records Act of 2001 (“OPRA”). A UFR is a one-page report required by a New Jersey Attorney General directive to be filed in all circumstances in which law enforcement personnel use physical, mechanical, or deadly force against a civilian. In January 2018, a Trentonian reporter received a tip that Ewing Township law enforcement used excessive force against a minor. The reporter filed a public records request for any UFRs generated as a result of the encounter. Ewing denied the request, citing OPRA, which provides that “records of law enforcement agencies, pertaining to juveniles charged as delinquent or found to be part of a juvenile-family crisis, shall be strictly safeguarded from public inspection.” The Trentonian sued Ewing and its municipal clerk for release of the UFR, arguing that the UFR should be released in redacted form, removing the identifying information about the minor but leaving the information about the police officer’s use of force. The trial court upheld Ewing’s denial of access, finding that the UFR was a juvenile record protected from disclosure under OPRA. The Trentonian appealed, joined by...

The WARN Act and the Coronavirus Epidemic

by Richard S. Zackin

Posted in Reductions in Force

On March 26, 2020

As the coronavirus epidemic continues to impact the economy, employers are faced with the prospect of shutting down their operations or continuing operations with a significantly reduced workforce for an indeterminate period of time. Employers anticipating the need for significant workforce reductions should be mindful of whether these reductions will implicate the federal WARN Act, and companies with employees in New Jersey and/or New York must also pay attention to the WARN Acts in effect in those states. This article will first briefly outline the requirements of the federal, New Jersey, and New York WARN statutes and will then discuss those requirements in the context of workforce reductions necessitated by the current crisis. The WARN Statutes The WARN statutes are extremely complicated, but, as a rule of thumb, whenever a New Jersey employer is contemplating terminating at least 50 employees, the employer should seek advice from counsel familiar with the federal and New Jersey WARN statutes. Should either of those statutes apply, the affected employees must be given at least 60 days’ notice of their terminations unless a statutory exception permits a lesser period of notice. As a rule of thumb, employers in New York should seek advice from counsel when contemplating terminating at least 25 employees. Should the New York WARN statute apply, the...

Does the SHIELD Act Cover Your Business and Are You Ready?

by John T. Wolak

Posted in General Litigation

On March 26, 2020

As we have previously written, the privacy and security requirements of the New York Stop Hacks and Improve Electronic Data Security Act (“SHIELD Act”) are effective as of March 21, 2020. The SHIELD Act implements broad new data security requirements for all businesses that have the private information of New York residents, and reaches beyond New York’s own borders to compel companies – including companies that do not do business in New York – to take affirmative steps to protect the personal and private information of New York residents that the company may be collecting or storing. Initially, the SHIELD Act expands the definition of “private information” that must be safeguarded to include any information that can be used to identify a person, in combination with a social security number, a driver’s license number, a financial account number, or biometric information. Separate and apart from these “data elements,” the definition of “private information” also now includes “a user name or e-mail address in combination with a password or security question and answer that would permit access to an online account.” Second, the SHIELD Act applies to any company that possesses the private information of even a single New York resident – even if the company does not conduct business in New York. All companies must...

Legislative Update: NJ Assembly Passes Proposed Legislation Extending Municipal Land Use Deadlines

by Cameron W. MacLeod

Posted in Real Estate

On March 25, 2020

The New Jersey Assembly on March 25 unanimously passed Assembly Bill No A-3902, which proposes to vest in the Director of Local Government Services the ability to extend the deadlines under the Municipal Land Use Law and other statutes that require certain municipal action before a given deadline during a declared state of emergency or public health emergency. This would effectively suspend all timeframes for determining completeness or requiring a vote by the zoning or planning board on a given application. This legislation now moves to the Senate for consideration, and we will continue to monitor various legislative and regulatory updates.

Guidance for Consumer Product Manufacturers, Distributors, and Sellers

by Michael R. McDonald

Posted in Class Action Defense

On March 25, 2020

Wide-ranging issues are arising in the aftermath of the COVID-19 crisis and will continue to impact our clients in a growing number of ways. The Gibbons Consumer Class Action Defense Team is here to help and can work with you to address these critical concerns. Communication with consumers is critically important for consumer product manufacturers, distributors, and sellers, whether in the form of product labeling, advertising, or direct communications through telephone, text, and email. These communications are fraught with class action hazards that should be addressed in advance. Particularly in our present environment, product statements or advertising that, for example, promote the ability to stave off infection, increase the body’s immune system functions, or disinfect surfaces, may become subject to challenge in class action lawsuits by entrepreneurial class action attorneys. Sellers that contact their customers using text messaging platforms or dialing systems need to be particularly wary given the proliferation of TCPA class actions which cause great harm to small and large business alike. Also, companies seeking to recoup losses may over-aggressively promote their own products in a manner that is illegal and anti-competitive. Franchisors and franchisees may be faced with economic circumstances that make their current arrangements impractical. If you have any questions or would like more information about potential class actions in connection...

Third Phase of Federal Relief for Coronavirus: What Details We Know Right Now About the Legislation

by Jason J. Redd and David J. Pascrell

Posted in Federal Legislation

On March 25, 2020

While some companies have already begun to apply for relief from the Small Business Administration (SBA) and other government entities, others are waiting to see what additional programs may be on the horizon. While we do not know all the details of Phase III legislation in Congress, we do know it will include: Support for Businesses $10 billion for SBA emergency grants of up to $10,000 to provide immediate relief for small business operating costs $17 billion for SBA to cover six months of payments for small businesses with existing SBA loans A retention tax credit for employers to encourage businesses to keep workers on payroll during the crisis SBA loan forgiveness eligibility for rent, mortgage, and utility costs Support for State and Local Government $150 billion for a state, tribal, and local Coronavirus Relief Fund $30 billion for the Disaster Relief Fund to provide financial assistance to state, local, tribal, and territorial governments, as well as private nonprofits providing critical and essential services $10 billion for the Indian Health Services and other tribal programs Support for Industries $150 billion increase in the Marshall Plan for our healthcare system $30 billion in emergency education funding $25 billion in emergency transit funding Support for Workers Increase in the maximum unemployment benefit by $600 per week Four...

Preparing for and Addressing Potential Impacts of COVID-19 on the Construction Industry

by Gibbons P.C.

Posted in Construction

On March 25, 2020

As the number of COVID-19 cases increases exponentially in the United States, the impact on the construction industry will inevitably continue to rise. Although projects in many states continue to progress at this time, some jurisdictions have taken drastic measures. For example, the Pennsylvania Department of Transportation recently suspended all construction projects until further notice in response to COVID-19. Similarly, all construction projects in Boston were ordered to stop for at least 14 days. In addition to shutdowns that may possibly be imposed by potential government action in response to the virus, ancillary issues could adversely impact parties to a construction project and the labor, goods, services, and materials used on projects. Such issues may include disruptions to construction supply chains in the U.S. and abroad, employees becoming ill and under quarantine, a workforce adjusting to changes resulting from school closings and other evolving societal changes flowing from COVID-19, and a rapidly changing and uncertain economic situation. While the current situation is essentially unprecedented, there are some actions parties in the construction industry can take to help prepare for, and address, potential impacts to their business and ongoing projects. Review Construction Contracts: Whether it is a standard form construction contract such as those published by the American Institute of Architects, a contract that has been...

New Jersey Supreme Court Orders State and Property Tax Appeal Deadline Extensions

by Thomas J. Cafferty

Posted in Tax Abatement

On March 24, 2020

In an effort to address the severe disruption to corporate and local property taxpayers resulting from the State of Emergency declared in response to the COVID-19 pandemic, the Supreme Court of New Jersey entered an order on March 19, 2020 extending deadlines for various local tax appeals. Generally, local property tax appeals are required to be filed by April 1, or within 45 days of the bulk mailing of Assessment notices, or by May 1 where a municipal-wide revaluation or municipal-wide reassessment has been implemented. Property located in Monmouth County, by virtue of its participation in the Real Property Demonstration Program, is subject to a now-passed January 15 deadline. Under the March 19 order, the filing deadlines for local property tax appeals and counter-claims in the New Jersey Tax Court and New Jersey County Boards of Taxation are extended to the later of May 1, 2020 or 30 days after the Governor declares an end to the State of Emergency. The March 19 order also extends several deadlines related to state tax appeals to the later of May 1, 2020 or 30 days after the Governor declares an end to the State of Emergency. Generally, such appeals are to be filed with the Tax Court within 90 days of an action by the Director of...

Financial Disaster Relief for Start-Ups – Yes, It Is Possible!

by Robert Johnson and Jason J. Redd

Posted in Corporations

On March 24, 2020

The specific challenge we are addressing here is for start-ups and other early-stage businesses. Gibbons attorneys are heavily involved in advising businesses in all industries and of all sizes on the full range of state and federal coronavirus disaster relief programs available to them. Start-ups and other early-stage companies face particular challenges in obtaining governmental relief. Gibbons understands this and is here to help. With our strong commitment to start-ups and other early-stage businesses, we recognize your dire need for funds for survival, as well as growth, at this critical period. We also recognize that the federal and state application requirements seem staggering. Founding teams are confronted with overwhelming requests for tax returns, current financial statements, monthly sales figures, and similar requirements. Which aid program(s) should you pursue? How do you decide? How does a pre-revenue or newly launched start-up demonstrate to federal and state agencies substantial economic injury? How do you determine the best route for disaster assistance with the highest chance of short-term success and without being overwhelmed by red tape? What is its most recent pre-coronavirus valuation, and how was it justified – for example, thought independent third party investments or a verified order pipeline? How much economic loss has now occurred due to the crisis? How do you complete the forms...