Recent Blog Posts

• The Eroding 'At-Will' Employment Doctrine
  Thomas B. Lewis, Shareholder and member of Stark & Stark's Employment Litigation group, and Michael J. Brittan, member of Stark & Stark's Employment Litigation group, authored the article The Eroding ‘At-Will' Employment Doctrine for the December 8, 2008 edition of the New Jersey Law Journal.   The article discusses the history and basic principles of an "at-will" employee relationship. The article also stresses the need for employers to include a prominent, clear and conspicuous disclaimer at the beginning of their employee handbook, and any other relevant documents, stating that nothing in the handbook or other documents changes the “at-will” nature of the employment relationship, nor does it create a contract for employment.   You can read the full article here. (PDF) ....
• Stark & Stark Shareholder Comments on Advances in Broker Recruitment Protocol
  Thomas B. Lewis, Shareholder and Chair of Stark & Stark's Employment Litigation group, was quoted in the December 2, 2008 Reuters.com article, Financial advisory firms sign pact to ease poaching. Mr. Lewis comments on the recent independent advisory firms who are rushing to sign an agreement that bars lawsuits between signatories that hire away each other's brokers.   Mr. Lewis states that with the new agreement, also commonly referred to as broker recruitment protocol, registered investment adviser firms can now recruit with less fear of litigation from a major house with deep pockets.   You can read the full article here. ....
• New Jersey Employers Brace Yourself: "Card Check" Is Coming
  To add to their other current woes, it is anticipated that New Jersey employers will soon be faced with higher employee costs due to proposed federal legislation known as “Card Check.” This legislation will make union organization far simpler in the Garden State (and everywhere else).  In general, “card check” removes the “secret ballot” from the union organization process.  Union organization will be largely accomplished by getting potential union members to simply sign a card indicating their desire to unionize.  Opponents of the bill think this will lead to intimidation and threats to employees who do not wish to unionize – and will inevitably increase labor costs.  Backers of the legislation state that this step is necessary to revitalize union organization in the United States and will lead to higher wages for employees.  Most federal Democratic Party legislators favor the legislation, while most Republican Party ....
• Remember the WARN Act
  Many of you may remember the Federal Warn Act - an Act which requires 60 days notice of a company’s intent to shut down a location with 100 or more employees (with various exceptions, of course). What is not largely known is that New Jersey passed a “baby” Warn Act earlier this year.    This Act reduces the number of required full time employees from 100 to 50.  The New Jersey WARN Act also eliminates the useful exception in the federal Act, which allows for termination of employees within a certain time period and other exceptions, which weakened the original federal Act.    In short, the New Jersey Warn Act is a force to be reckoned with as we head deeper into the current recession.  Employers shutting down any office location should seek legal counsel prior to taking action. ....
• Stark & Stark Shareholder Comments on Bank of America Incentives
  Thomas B. Lewis, Shareholder and Chair of Stark & Stark's Employment group, was quoted in the November 6, 2008 Bloomberg.com article Bank of America Says Merrill Brokers Can Quit Without Penalty.   Mr. Lewis commented on the recent announcement made to the roughly 15,500 brokers Bank of America acquired after buying Merrill Lynch this past September which said that they have the ability to quit without penalty, however, if they stay, they will qualify for a bonus of as much as 100% of their annual revenue. Mr. Lewis states that the memo was created in order to alleviate the concerns of senior Merrill brokers.   You can read the fill article on Bloomberg.com here. (Also available in PDF here.) ....
• It Ain't Over, Even After It's Over: New Jersey Court Extends Retaliation Claims Under Law Against Discrimination (NJLAD) For Post-Termination Actions
  Consider this scenario: Your company has struggled with a key employee, and it is determined that the employment should be terminated. Following the advice of counsel, the parties entered into a separation agreement, severance is paid, and the employee signs a release of all claims related to employment with your company. At this point, the parties can now move on without the threat of litigation, right? Not necessarily!   The employee files for unemployment insurance. The company responds by advising that the employee consistently failed to comply with the established standards of conduct in the workplace. You are comfortable that the statement will remain confidential, as statements by the parties in an unemployment claim are not admissible in civil actions (N.J.S.A. 43:21-11(g)). However, the disgruntled ex-employee responds by asserting that the company’s reason for discharge is false and is motivated by retaliation for complaining about potentially discriminatory ....
• Changes in Deferred Compensation Law Requires Compliance By January 1, 2009
  Section 409A was added to the Internal Revenue Code pursuant to the American Jobs Creation Act of 2004 in response to Congressional concerns about excessive executive compensation and executives’ ability to manipulate their compensation arrangements with the companies they manage. Section 409A requires that every deferred compensation plan or arrangement comply with certain strict guidelines. Plans or arrangements that are subject to Section 409A are required to be fully compliant with the final regulations under 409A by January 1, 2009.   What is “Deferred Compensation” Under 409A? What is so striking about Section 409A, it its application to almost every type of plan or arrangement in which compensation is paid in a year subsequent to the year in which the services were performed by the service provider (i.e. the executive). Compensation is deferred when the service provider first has a legally binding right to the payment of compensation. Because the ....
• Protocol for Broker Recruiting
  Thomas B. Lewis, Shareholder of Stark & Stark's Employment and Litigation groups, authored the article Protocol for Broker Recruiting: How a Financial/Investment Advisor Can Use the Protocol to Transition Accounts for the September/October 2008 edition of the Investment Management Consultants Association's Investments & Wealth Monitor.   The article gives a brief history of the origination of the Protocol for Broker Recruiting in 2004, and includes a question and answer section for recruiting and a list of do's and don'ts to follow under the Broker Protocol. You can read the full article here. (PDF) ....
• New Expansion of Discrimination/Sexual Harassment Law
  In an interesting new development, the Appellate Division of New Jersey, in the matter of Cerdeira v. Martindale Hubbell, Appellate Division A-5855-06T1 (September 18, 2008) has expanded liability for discrimination in situations where: (a) an employee is subjected to discrimination/harassment by a co-worker (as opposed to a supervisor); and (b) the employer does not have an effective policy for employees to use in reporting harassment. Relying on a form of negligent liability which has previously only been recognized in federal court, the Appellate Division has now established that in New Jersey state courts, under the circumstances set forth above, there can be liability for a company. This new form of liability only underscores the need for employers in New Jersey to have a clear written policy on how employees are to report incidents of discrimination and harassment to their company. ....
• Equal Protection: A State Employee Is Not a "Class-of-One"
  In an opinion by Chief Justice Roberts, the Supreme Court on June 9, 2008, held that the “class-of-one” theory of equal protection does not apply to state employees. The Equal Protection Clause of Fourteenth Amendemnt to the U.S. Constition, upon which the class-of-one theory is based, provides, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Constit. amend. XIV, § 1 (emphasis added). In Engquist v. Oregon Department of Agriculture, 128 S.Ct. 2146 (2008), a public employee alleged that she had been “arbitrarily treated differently from other similarly situated employees,” and that such treatment gave rise to a class-of-one equal protection claim. The Supreme Court ultimately rejected Engquist’s position that a previous Supreme Court decision, Village of Willowbrook v. Olech, 528 U.S. 562 ....
• Trans-Gender Issues For Employers Under The New Jersey Law Against Discrimination
  Last Summer, the New Jersey Legislature added  “affectional orientation” to the list of protected classes of people under the New Jersey Law Against Discrimination (NJLAD). Now New Jersey employers are faced with another tricky issue on a very practical level which may have not been considered by the Legislature.  How does an employer respond to a trans gender employee who wishes to use the bathroom of the opposite “biological” sex? For example, a biologically male employee who dresses as a woman wants to use the “ladies room.”  Should the employer allow this?  What about the other employees?  The courts in New Jersey have done almost nothing to answer these questions to date.  In a recent unpublished decision Opilla v. Parker, the Appellate Division sidestepped these issues in a case which would have otherwise provided employers with real guidance on this issue.  In Opilla, a trans gendered biologically male ....
• Regulatory Hammer Strikes Again
  Gerald Faber, Shareholder of Stark & Stark's Employment, Business & Corporate and Real Estate, Zoning & Land Use Groups authored the article Regulatory Hammer Strikes Again for the June 9, 2008 edition of the New Jersey Lawyer. The article discusses a company's need to have a clear understanding of the Construction Industry Independent Contractor Act (CIICA), as well as the need for employers to follow the requirements outlined in the Act. Mr. Faber discusses the need for an employer to exercise control over the methods and quality of a worker's performance in order to maintain a positive and productive employment relationship. You can read the full article here. (PDF) ....
• President Signs Genetic Information Nondiscrimination Act into Law
  Earlier today (May 21, 2008) President Bush signed into law a bill that prohibits employers from using genetic information about prospective employees to make decisions on hiring. The Bill had received almost unanimous support in both the House and Senate. The Bill contains, among other things, the following two Congressional findings (as stated in the bill): (4) Congress has been informed of examples of genetic discrimination in the workplace. These include the use of pre-employment genetic screening at Lawrence Berkeley Laboratory, which led to a court decision in favor of the employees in that case Norman-Bloodsaw v. Lawrence Berkeley Laboratory (135 F.3d 1260, 1269 (9th Cir. 1998)). Congress clearly has a compelling public interest in relieving the fear of discrimination and in prohibiting its actual practice in employment and health insurance. (5) Federal law addressing genetic discrimination in health insurance and employment is incomplete in both the scope and depth of its ....
• Job References: Problems for Good References, Problems for Bad References
  As the economy worsens, employers are facing an increasing number of lawsuits over employee references.  Whether the employer gives a good reference or a bad reference, there is an increase in lawsuits being filed against the employer. In Georgia, a lawsuit is pending against a school district for giving a positive reference to a teacher who had been convicted of a sex crime and went on to teach in a district where he was later charged with raping a student.  In New Jersey a man is suing Best Buy Company, Inc. alleging that a human resources manager wrote a defamatory email about him to a prospective employer, thus costing him the job.  Many employers believe that the potential liability in the employment arena ends when an employee terminates his or her employment with the company.  This clearly is not the case.  In fact, if an employee does not get a job, that employee will often times draw the conclusion that a negative reference was given by the former ....
• Court Limits Damages in Restrictive Covenant Cases
  Thomas B. Lewis, Shareholder and Chair of Stark & Stark's Employment Litigation group, and Michael J. Brittan, member of Stark & Stark's Employment Litigation group, have authored the article, Court Limits Damages in Restrictive Covenant Cases, for the March 17, 2008 edition of the New Jersey Law Journal. The article discusses a decision in the New Jersey Supreme Court Case of Totaro, Duffy, Cannova and Company, L.L.C. v. Lane, Middletown & Company, which established new factors in assessing breaches of nonsolitication agreements. You can read the full article here. ....
• Non-Disclosure and Restrictive Covenant Agreements
  Amy Beth Dambeck, member of Stark & Stark's Employment group, authored the article Non-Disclosure and Restrictive Covenant Agreements: Cost-Effective and Preventative Tools that Protect the Value of Your Business and Investment in Your Employees for the March 2008 edition of Mercer Business Magazine. You can read the full article here. ....
• Counsel Fees & Costs May Be Awarded In A New Jersey Law Against Discrimination Case
  In a recent Appellate Division case, Michael vs. Robert Wood Johnson University Hospital, et al., the New Jersey Superior Court - Appellate Division was presented with a question of whether reasonable counsel fees could be awarded to a Defendant who prevails in an action under the New Jersey Law Against Discrimination.  Typically, counsel fees are only awarded to a prevailing Plaintiff under the Law Against Discrimination.  In the Michael case, Plaintiff was a part-time employee of Defendant Robert Wood Johnson University Hospital for more than twenty years and filed a lawsuit alleging age discrimination, a hostile work environment and other tort based claims.  Plaintiff’s claims centered on the hospital’s vacation policy, tuition reimbursement policy and Plaintiff’s performance evaluations.  The trial court granted summary judgment dismissing Plaintiff’s claims without a trial. After the trial court entered summary judgment, the Defendant ....
• Halting Employee Theft
  Kevin M. Hart, Shareholder and member of Stark & Stark's Litigation group, recently authored the article Halting Employee Theft for Biz 4 NJ. The article discusses various options an employer can take to prevent employee theft within an organization, during a time when more than $600 million annually is being stolen from companies. You can read the full article here. ....
• Damages For An Alleged Violation of A Non-Solicit Agreement
  The New Jersey Supreme Court in the case of Totaro, Duffy, Cannova & Company, LLC vs. Lane, Middleton & Company, LLC gave some insight for a Court to award damages for violations of a non-solicit agreement. The facts of the case are as follows:  In 1997, Merritt Lane and David Middleton formed an accounting firm known as Lane, Middleton & Company, LLC.  In connection with his employment, Lane signed a restrictive covenant barring him from soliciting clients of the Company for a period of four years should he depart from the Company.  In 2001, Lane started his own accounting practice.  Lane sent solicitation packages to clients for whom he had previously performed services, including clients of Lane, Middleton & Company.  Numerous clients left to join Lane in his new accounting practice.  During trial, several clients testified that they had a relationship with Lane and they were dissatisfied with the Company, and they would not have ....
• New Bill Will Add Additional Burden To Employers
  A Bill has now passed in the Senate, 38 – 0 (S-2488/A-3451) on December 19, 2007 that will make it unlawful for an employer to discriminate against employees because of “religious practices.”  The importance of this bill is that it goes beyond protecting an employee from being discriminated against because of their religion, and specifically protects them from discrimination based on “religious practice.”  Given the lack of opposition to this Bill, it is likely that the Governor will sign it into law shortly.  ....