Terminating an employee who is subject to a restrictive covenant may void that agreement in states that permit and enforce them. For example, New York law provides that an employer cannot enforce a restrictive covenant if it terminated the employee. See, Buchanan Capital Markets, LLC v. DeLucca, 144 A.D. 3d 508 (N.Y. App. Div. 2016).

The law in New Jersey is unsettled at this time, but if the employer terminates an employee because of the coronavirus, I believe it is likely that New Jersey courts will not enforce the agreement at this time. An employee’s covenant not to compete is enforceable only if it is reasonable under all the circumstances in a particular case. Maw v. Advanced Clinical Commc’ns, Inc. 179 N.J. 439, 447 (2004).

Continue Reading Termination of Employees with Restrictive Covenants Could Negatively Affect Enforcement

On Wednesday, the United States Department of Labor (“DOL”) posted a temporary rule issuing regulations implementing the paid sick leave and expanded family and medical leave requirements established by the recently enacted Families First Coronavirus Response Act (“FFCRA”), which went into effect this week.

The Department’s temporary rule, which is available here, covers significant ground in terms of delineating workers’ and employers’ rights and responsibilities under the FFCRA, as well as how employers must go about determining what obligations they have thereunder. Included in the numerous topics and aspects of the new law addressed and explained is one particular question (among many, many others) that almost everyone has been asking since the President signed the FFCRA into law just over two weeks ago: Is there a “small business exemption” for employers with fewer than 50 employees and when and how does that exemption apply to exclude a small business from the provisions of the FFCRA? In short, as explained below, yes, there is a small business exemption available to private employers that have fewer than 50 employees, but it only is available under certain circumstances and is not a full-blown exclusion. Even qualifying small businesses are not absolved of all paid leave obligations under the Act.

Continue Reading Department of Labor Temporary Rule Defines and Explains Small Business Exemption to Employer Paid Leave Requirements Under Families First Coronavirus Response Act

As businesses continue to traverse the unchartered waters created by the COVID-19 outbreak across the country, the law constantly is evolving, and employers must grapple with new limitations created by both Congress and state and local governments on what seems like a daily basis. Employers must take care to learn, understand, and comply with the emergency legislation being passed at all levels of government. In so doing, employers must remain mindful of the penalties and enforcement of violations of the substantive benefits provided by these coronavirus-inspired laws, and must exercise care to avoid violating the anti-retaliation provisions included in these new laws.

Continue Reading Employers Beware: Retaliating Against Employees Who Exercise Their Rights in Response to COVID-19

The federal government has provided new hope for employees affected by the novel coronavirus pandemic by way of an economic stimulus package that includes, among other things, enhanced unemployment benefits.

On Friday, March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (“CARES” Act), which expands the situations in which an employee is eligible to receive unemployment compensation. In addition, the CARES Act provides an enhanced unemployment benefit to employees impacted by COVID-19, enabling employees to receive up to an additional $600.00 per week in unemployment insurance benefits through Federal Pandemic Unemployment Compensation.

Continue Reading The Coronavirus Aid, Relief and Economic Security Act (“CARES Act”): What It Could Mean For You

How things have changed since I published my Employer’s Guide to COVID-19 less than a week ago. While the guidance, recommendations, and issue-spotting set forth in that article have not changed, the legal landscape concerning the novel coronavirus has. State governors have issued emergency orders. New laws have taken, or will take, effect. Non-essential business have been instructed to close their doors and convert to remote work arrangements, if possible. People have been advised to stay home. Here’s an update on what’s changed and how it impacts you, your business, and your employees.

Continue Reading Updated Resource & Guide to COVID-19: Emergency Orders, State Lockdowns, and the Families First Coronavirus Response Act

The coronavirus pandemic has arrived in the United States, and it undoubtedly has impacted your business or workforce in some way. On Friday, March 13th, President Donald Trump declared a national emergency to free up $50 billion in federal resources to combat COVID-19 and has since issued coronavirus guidelines for America.

At the local level, some states, counties, and municipalities have gone into lockdown by requiring all non-essential public places to close indefinitely until this crisis has passed. On Sunday, March 15th, Pennsylvania Governor Tom Wolf mandated the closing of all non-essential businesses in five eastern counties (Bucks, Chester, Delaware, Montgomery and Allegheny). On Monday, March 16th, New Jersey Governor Phil Murphy ordered the closing of all schools and non-essential retail, recreational, and entertainment businesses effective at 8:00 p.m., and instituted a curfew for non-essential and non-emergency travel between the hours of 8:00 p.m. and 5:00 a.m. These mandates will remain in effect for the foreseeable future.

Continue Reading An Employer’s Guide to COVID-19 (Coronavirus)

COVID-19 concerns have swept across the country in the last weeks. The Centers for Disease Control (CDC) and other governing bodies have called upon all Americans to do what they can to slow the transmission of the disease by practicing social distancing. For employers, that means seriously considering allowing their employees to work remotely.

Continue Reading Remote Working: What Employers Need To Know

Companies are finding themselves in an unprecedented situation, needing to make determinations that keep their employees safe while complying with state and federal laws during the current global health challenge.

Navigating responsibilities, employee rights, and requirements for compliance require complex calculations for employers with the recent spread of COVID-19 (coronavirus). While the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and other federal and state guidelines can provide instructions for those that have contracted the illness, measures dictated by social distancing are less clear cut.

So what are the factors that should be taken into consideration? Travel restrictions, implementation of remote work policies, and limiting exposure in offices that are open are all part of the current decisions facing businesses.

What are the most important points to consider at this time?

Continue Reading Employers Navigate New Territory With COVID-19 Risks and Accommodations

There is legal significance if is a person is deemed to be an “employee,” as opposed to an independent contractor. That determination is likely to be significant for a number of reasons, including: tort liability under respondeat superior; payroll taxation; workers’ compensation insurance; benefits; and statutory employee protections. Employers are required to protect their employees from workplace discrimination under the New Jersey Law Against Discrimination. Moreover, they are required to pay their “employees,” in accordance with the Wage Payment Law, the Wage and Hour Law, and the Unemployment Compensation Law. Independent contractors, on the other hand, are not subject to the same.

Continue Reading Employee vs. Independent Contractor? Important, Yet, Sometimes Confusing Distinctions

On February 18, 2020, New Jersey Governor Phil Murphy unveiled a sweeping proposal that significantly strengthens the New Jersey Law Against Discrimination. The proposed legislation was the result of a two year study of workplace employment discrimination and sexual harassment conducted by the New Jersey Division on Civil Rights. It also mirrors the current societal shift in attitudes about workplace discrimination and sexual harassment. Employers need to be cognizant of these proposed changes and the current climate.

If enacted, New Jersey would require all employers to provide anti-discrimination and anti-harassment training. The New Jersey Supreme Court held that trial court should consider whether or not an employer made training available to supervisors and all employees when deciding whether or not an employer has been negligent in preventing sexual harassment. This proposed change would require training.

Continue Reading Proposed New Jersey Legislation Aimed at Combating Workplace Bias and Sexual Harassment