Gibbons Law Alert

Gibbons Law Alert Blog

NJ Supreme Court Broadens Scope of LAD’s “Marital Status” Protection

On July 27, 2016

On June 21, 2016, in Smith v. Millville Rescue Squad, the Supreme Court of New Jersey addressed the scope of the marital status protection afforded to employees by the Law Against Discrimination (LAD). The Court ruled that the LAD’s marital status provision is not limited to the state of being single or married but protects employees who have announced “they will marry, have separated, have initiated divorce proceedings or have obtained a divorce.”

Privately Financing the Public Good: Using Public-Private Partnerships to Inject Private Financing into Public Projects in New Jersey

by Gibbons P.C.

Posted in Economic Development

On July 26, 2016

New Jersey has a higher inventory of worthy infrastructure projects than it has money to fund sorely needed improvements. Although New Jersey has the seventh highest revenue of any state, the pressures of being a densely populated commuter state often impose significant liabilities on those revenues such that the State is often faced with having to choose between worthy projects because available financing is limited. One common sense solution gaining significant traction is the injection of private financing into public projects in order to relieve some of the State’s financing burdens. Often referred to as public-private partnerships or P3s, these agreements trade a limited, future revenue stream over time to a private corporation in exchange for a fiscal commitment allowing a project to put shovels in the ground. These projects can take various forms: construction of state college dormitories in exchange for rents, maintenance of highways in exchange for availability payments, or construction of a bridge in exchange for toll rights, to name a few. The State entity receives an influx of capital to address infrastructure needs and the private entity receives a long term profit from rents, tolls, availability payments, or maintenance agreements. The elegance of this type of solution is that design, procurement, and initial construction can all overlap because they are being...

Wrap Up of United States Supreme Court’s 2015-2016 Term

by Gibbons P.C.

Posted in General Litigation

On July 26, 2016

With the close of the United States Supreme Court’s 2015-16 term, we offer this wrap up of the Court’s term, focusing on decisions of special interest from the business and commercial perspective (excluding patent cases): Upon being granted a discharge from a Bankruptcy Court, a bankrupt’s debts are discharged unless a particular debt falls within one of the Bankruptcy Code’s statutory exclusions. One of those exclusions is for debts arising from “false pretenses, a false representation, or actual fraud.” Husky Int’l Elecs., Inc. v. Ritz asked whether a debt arising from a fraudulent transfer made for the purpose of frustrating a creditor, but accomplished without making a false representation, is subject to this exclusion.

Arbitration Clause Held Too Vague to Cover Statutory Claims

by Gibbons P.C.

Posted in Alternative Dispute Resolution

On July 25, 2016

Employers drafting arbitration clauses for employment contracts and others drafting arbitration agreements generally need to be familiar with the line of New Jersey cases involving arbitration clauses, including the Appellate Division’s recent opinion in Anthony v. Eleison Pharmaceuticals LLC, Docket No. A-932-15T4 (App. Div. July 18, 2016), where the court held that an arbitration clause that does not include reference to a waiver of plaintiff’s statutory rights or a jury trial does not constitute a valid waiver of the right to have claims decided in a judicial forum.

With the Budget Done, Line Item Veto Shapes the FY17 Budget

by Gibbons P.C.

Posted in Economic Development / Regulatory Counseling and Departmental Action

On July 22, 2016

On June 27, 2016, the New Jersey Legislature sent S17, the FY 2017 budget bill, to Governor Christie. S17 makes various language changes and adds $275 million to the Governor’s proposed budget. Usually, the Governor is limited to three options when reviewing passed legislation. He can accept the bill as it is written, veto the bill in its entirety or suggest changes, or send it back to the Legislature. The budget bill is different. The New Jersey Constitution gives the Governor the ability to enact laws, that appropriate money, while reducing or removing specific line items. Article V, Section I, paragraph 15 provides that “If any bill presented to the Governor shall contain one or more items of appropriation of money, he may object in whole or in part to any such item or items while approving the other portions of the bill. In such case he shall append to the bill, at the time of signing it, a statement of each item or part thereof to which he objects, and each item or part so objected to shall not take effect.” That same section also grants the Legislature the ability to override the Governor’s line item veto by a two-thirds vote of all members of the State Senate and General Assembly. Ibid. This is...

Second Circuit Holds Human Resources Director May Be Individually Liable Under FMLA

by Gibbons P.C.

Posted in Family Leave

On July 21, 2016

Employers should be aware that the United States Court of Appeals for the Second Circuit has held, in Graziadio v. Culinary Institute of America, that supervising employees can be held individually liable under the Family and Medical Leave Act (“FMLA”) for retaliation and interference with an employee’s FMLA rights. The Court also formally adopted standards for FMLA interference claims and for claims brought pursuant to the associational discrimination provision of the Americans With Disabilities Act (“ADA”).

The EEOC Finalizes Wellness Program Guidance, Issuing Final Rules on Workplace Wellness Programs and a Sample Notice

by Kelly Ann Bird

Posted in Employee Benefits

On July 20, 2016

After much anticipation (and confusion) regarding legally permissible parameters for certain employer-sponsored wellness programs, on May 16, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued two final rules concerning wellness programs that offer incentives in exchange for health information from employees and their spouses. Specifically, the rules describe how wellness programs can comply with Title I of the Americans with Disabilities Act (“ADA”) and Title II of the Genetic Information Nondisclosure Act (“GINA”). According to the EEOC’s press release, the rules provide guidance under the ADA and GINA consistent with the relevant provisions of the Health Insurance Portability and Accountability Act (“HIPAA”), as amended by the Affordable Care Act (“ACA”). The EEOC’s proposed regulations were discussed in a previous post following our presentation entitled “Wellness Programs for a Healthy Workplace” at the Fifth Annual Gibbons Employment & Labor Law Conference. Then, in June, the EEOC issued a sample notice for employer-sponsored wellness programs. Here, we parse the rules into bright-line takeaways for employers.

Plans for New Medical School Move Ahead as Hoffmann-La Roche Announces Completion of Purchase and Sale Agreement of its 116-Acre Campus

by Gibbons P.C.

Posted in Development/Redevelopment / Real Estate / Transactional Real Estate and Leasing

On July 14, 2016

As reported in today’s NJBIZ, Hoffmann-La Roche has completed the purchase and sale agreement of its 116-acre campus, located in Nutley and Clifton, NJ, to PB Nutclif I, an affiliate of Prism Capital Partners. Seton Hall University and Hackensack Meridian Health then entered into a long-term lease with the developer for the creation of a private medical school and clinical research center. Seton Hall will also relocate its College of Nursing and School of Health and Medical Sciences to this site.

Legislature Approves Retroactive One-Year Extension of New Jersey’s Permit Extension Act in Superstorm Sandy-Impacted Counties

by Howard D. Geneslaw

Posted in Development/Redevelopment

On July 14, 2016

New Jersey’s Permit Extension Act (“PEA”) sunsetted at the end of 2015 when the Legislature did not enact a further extension. It has now been resurrected and extended retroactively, for one additional year, in nine counties most impacted by Superstorm Sandy. New Jersey’s Permit Extension Act (“PEA”) was initially enacted in 2008 in response to “the crisis in the real estate finance sector of the economy.” The purpose of the PEA was to toll, through the end of 2012, expiration of various approvals necessary for development. The PEA was later amended in 2012, due to the then “current national recession,” to extend the tolling of the expiration of those approvals until December 31, 2014, and a subsequent amendment extended it until December 31, 2015.

Second Circuit Reverses Lower Court Microsoft Decision and Holds That Email Evidence Stored Abroad Cannot Be Gathered Pursuant to Criminal Warrant Issued Under Stored Communications Act

by Jeffrey L. Nagel

Posted in E-Discovery: Legal Decisions and Court Rules

On July 14, 2016

In a prior post, we reported that Southern District of New York Magistrate Judge Francis determined that Microsoft must comply with a U.S. Government’s warrant seeking a user’s email content, even though the emails are stored in Microsoft’s datacenter in Dublin, Ireland. After the lower court declined to quash the subpoena and held Microsoft in contempt for failing to turn over customer content stored abroad, Microsoft appealed to the Second Circuit. On July 14, 2016 the appeals court issued an extensive opinion reversing the lower court’s ruling.