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Cory A. Rand is an Associate Attorney and member of Stark & Stark’s Litigation Group.  He concentrates his practice in all areas of commercial and civil litigation, representing clients in all phases of litigation, from pleadings through appeal, with a special emphasis on appellate work.

On January 13, 2021, the Supreme Court of New Jersey, in Branch v. Cream-O-Land Dairy, issued an important decision (available here) clarifying the scope of the so-called “good-faith defense” available to employers sued for violating the minimum wage and overtime compensation requirements of the New Jersey Wage and Hour Law (“NJWHL”). The Court’s opinion has significant implications for employers in New Jersey in terms of how they make certain compensation decisions and upon what authority employers can safely rely in ascertaining their legal obligations.

Continue Reading New Jersey Supreme Court Narrowly Construes “Good-Faith” Defense to Wage and Hour Claims

For many employees, bonuses and commissions represent a significant portion of the compensation they expect to receive in exchange for their hard work and efforts in growing and cultivating their employers’ businesses and, in many instances, generating revenue. Typically, incentive pay is tied to performance—whether individual or company-wide—and is earned as of a certain date (which may be at the end of each year, each quarter, each month, or any other regular, set intervals), upon successful completion of certain tasks (such as the closing of a sale), or upon achieving certain measurable performance metrics or benchmarks. Often times commissions are paid on a monthly basis and bonuses are paid annually, either at the end of the year or beginning of the following year. But it does not have to be that way, and employers generally enjoy broad discretion in how they wish to construct and implement their incentive compensation plans and policies—and whether to even have one at all.

Continue Reading Employees’ Entitlement to Bonuses and Commissions Following Termination of Employment

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

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

Question: Can an employer legally withdraw a prospective employee’s job offer before that particular individual actually begins working at the company?

It happens more frequently than one might think, but under a variety of different circumstances. There are many reasons why a company might rescind an offer of employment, such as: a candidate’s criminal history, failed drug test, or unsatisfactory background check results; negative references; falsification of application materials; budget cuts; cancelled or postponed projects or contracts with customers; installment of a new executive; an eleventh-hour, about-face decision change by the hiring manager; belated realization of previously unnoticed or overlooked evaluation-altering information about the candidate; unfavorable post-offer experience or interactions with the candidate; and many others.


Continue Reading Can an Employer Legally Withdraw a Job Offer After It’s Been Made?

As a general rule in New Jersey, private employers may not conduct random drug testing of current employees except employees in “safety-sensitive” positions. Notwithstanding scant authority on what constitutes a “safety-sensitive” position, it is clear that to qualify, there must be a direct and immediate nexus between the employee’s job duties and a fairly significant safety risk. Absent such a connection, an employer cannot require its employees to submit to random drug testing, though pre-employment testing and testing in light of a particularized suspicion are permissible.
Continue Reading Safety-Sensitive Positions and Random Drug Testing by Private Employers in New Jersey