Recent Blog Posts

    • Lady Gaga's Personal Assistant Sues for Overtime Compensation and Provides an Opportunity to Remind Those Who Employ Personal or Executive Assistants of Their Obligations Under Wage and Hour Laws A former personal assistant of Lady Gaga recently filed a lawsuit against the entertainer’s touring company claiming that she was improperly denied hundreds of thousands of dollars in overtime pay under both the Federal Fair Labor Standards Act (“FLSA”) and New York state law. O'Neill v. Mermaid Touring Inc., Civil Case No. 11-9128 (Southern District of New York, Dec. 14, 2011).  In support of her allegations, the former assistant claims that her position did not qualify for the “administrative exception” to overtime laws because she did not exercise any significant independent discretion or judgment in her role while she, essentially, worked around the clock in exchange for a fixed salary.  Although the assistant worked a mere 13 months for the pop star and was well-compensated for the position (pursuant to the complaint, she was initially paid $1,000 per week and, subsequently, an annual salary of $75,000), she claims that she was on call 24/7 ....
    • US Supreme Court Recognizes Religious Exception to Employment Discrimination Law On January 11, 2012, the Supreme Court issued a unanimous decision in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (“Hosanna-Tabor”). The decision upheld a religious church-school’s termination of a teacher based on the “ministerial exception” and ruled that employment discrimination lawsuits are barred when the employer is a religious group or organization and the employee is one of the group or organization’s ministers.    Both the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 contain exemptions that entitle religious institutions to discriminate on the basis of religion – but they do not permit such institutions to discriminate on other legally protected basis, such as race, sex, or disability. The federal courts of appeals, however, have long recognized a broader, ministerial exception: a First Amendment doctrine that bars most employment-related ....
    • Stark & Stark Shareholder Comments on Wall Street Bonus Check Reduction Thomas B. Lewis, Chair of Stark & Stark’s Employment Litigation Group, was quoted in the January 14, 2012 New York Post article, Bonus (cry) babies taking the money and running.  The article discusses a recent trend in Wall Street bankers retiring early amidst  fears of skimpy bonus checks this year, and for the foreseeable future.    Mr. Lewis states, “There’s a strong argument that the gravy-train days of Wall Street may never replicate themselves again. It’s going to be very hard to make an embarrassingly large amount of money at a bank that’s a publicly traded company compared to a private-equity fund or a hedge fund. ....
    • New Jersey Trade Secrets Act New Jersey has finally enacted a law allowing civil actions for the misappropriation of trade secrets.  The Trade Secrets Act (“The Act”) signed by Governor Christie on January 9, 2012 provides remedies available to the holder of a trade secret that has been acquired by improper means or improperly disclosed.    The Act provides an arsenal of remedies, including compensatory and punitive damages, injunctive relief and attorneys’ fees. The legislation defines a trade secret as information such as a formula, pattern, business data compilation, technique, invention and/or process. New Jersey now joins 46 other states who have enacted a trade secrets statute. ....
    • Regional Firms Trump Big Brokers in Adviser Hiring Thomas B. Lewis, Shareholder and Chair of Stark & Stark’s Employment Group, was quoted in the December 30, 2011 Chicago Tribune article, Regional firms trump big brokers in adviser hiring. The article discusses the recent increase in financial advisers switching firms in the last half of 2011. During this time, at least 166 advisers, managing a combined $25 billion of assets, moved to a new firm. Mr. Lewis states that recruiting packages have reached 300 to 400 percent of a broker's annual production, including up-front and back-end bonuses, whereas ten years ago, a 50-to-100 percent package was considered healthy. ....
    • Stark & Stark Shareholder Comments on FINRA's Actions Against Former Citigroup Managers Thomas B. Lewis, Chair of Stark & Stark’s Employment Group, was quoted in the December 2, 2011 Reuters.com article, Heading up a branch office seen as risky game.    The article discusses the Financial Industry Regulatory Authority’s recent disciplinary actions against Brandon Tompson and Patricia Collantes, former Citigroup managers in California, after they failed to supervise a sales assistant who stole $750,000 from client’s accounts. Mr. Lewis states that becoming a branch managers comes with great risk and by electing o become a branch manager, brokers are effectively signing up to be responsible for every action of every employee, all day long. You can read the full article online here. ....
    • New Posting Requirement for New Jersey Employers: December 7, 2011 Deadline; Mandate Effective Immediately for New Hires As of November 7, 2011, the New Jersey Department of Labor and Workforce Development implemented a new notice posting requirement applicable to New Jersey employers. The required notice contains a detailed description of employer recordkeeping requirements under state employment laws and provides contact information for employees or their representatives to report potential violations. This new requirement is in addition to any other notice posting requirements to which a New Jersey employer is subject.   Under this new mandate, employers are required, by December 7, 2011, to: (1) post the newly published notice conspicuously in the workplace and (2) provide each employee hired prior to November 7, 2011 with a copy of the notice.  Further, any new employee hired after November 7, 2011 must be provided with a written copy of the notice at the time of hire.   The conspicuous posting requirement will be satisfied if: (1) the notice is placed on an employer’s Intranet ....
    • Employer Social Media Policies: A Balancing Act As our use of social media continues to explode, employers often find themselves in a difficult predicament when they become aware of negative or controversial comments made by an employee on social media outlets such as Facebook or Twitter. Employers, often times without a policy regarding employee use of social media outlets, use their own discretion when determining whether comments made by an employee through a social media outlet are grounds for suspension, discipline, or termination.   Under Section 7 of the National Labor Relations Act (“NLRA”) employees, both unionized and non-unionized, have the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." These “activities” protect employees engaging in communication regarding wages and working conditions. Section 7 protects traditional face-to-face communication, as well as communication over the Internet and social media sites. In ....
    • Stark & Stark Shareholder Comments on AllianceBernstein's Decision Not to Sign Protocol for Broker Recruiting Thomas B. Lewis, Chair of Stark & Stark’s Employment Group, was quoted in the September 13, 2011 FundFire article, AllianceBernstein Sues More Departed Advisors.   The article discusses the continiuing legal battle AllianceBernstein is engaged in with financial advisors who recently left their firm and took clients with them. The firm filed suit against eight former brokers, claiming that they violated their non-solicitation agreements after they left without giving sufficient notice and taking their client lists and other confidential information with them.   Mr. Lewis comments on AllianceBernstein’s choice not to partake in the Protocol for Broker recruiting. He states, “The reason they have not joined is because they are concerned that it will make it easier for people to leave AllianceBernstein. They don’t want to join the protocol right now because there’s a great concern that there might more people who would want to leave than join, ....
    • Lehman Pursues Former Brokers' Bonuses Thomas B. Lewis, Chair of Stark & Stark’s Employment Group, was quoted in the August 16, 2011 Wall Street Journal article, Lehman Pursues Former Brokers' Bonuses. The article discusses Leahman Brothers Holdings, Inc.’s decision to go after former brokers in an attempt to collect bonus money they received when they joined the firm.    Mr. Lewis states that, “lawyers for the former Lehman brokers may try to argue ‘impossibility’ as a defense against the firm's note claims.  It's impossible to do your job if it's no longer there."    You can read the full article online here.   ....
    • ERISA: Exhausting Remedies As a general rule a party must exhaust its administrative remedies before it can invoke the jurisdiction of the courts. However, the Third, Fourth, Fifth, Sixth, Ninth, and Tenth Circuits have all held that exhaustion is not a prerequisite to suits alleging statutory ERISA violations. One potential administrative remedy that employees should consider is filing a complaint with the US Department of Labor, Employee Benefits Security Administration. ....
    • Withdrawal Liability & Enforcement of Contribution Obligations Under ERISA Before Congress enacted the Multiemployer Pension Plan Amendments Act of 1980 (“MPPAA”), “many employers were withdrawing from multiemployer plans because they could avoid withdrawal liability if the plan survived for five years after the date of their withdrawal,” and Congress was concerned “ ‘that ERISA did not adequately protect multiemployer pension plans from the adverse consequences that result when individual employers terminate their participation or withdraw.’ ”   The MPPAA was therefore enacted and was “designed ‘(1) to protect the interests of participants and beneficiaries in financially distressed multiemployer plans, and (2) to encourage the growth and maintenance of multiemployer plans in order to ensure benefit security to plan participants.’ ”   To accomplish these goals, the MPPAA “requires that a withdrawing employer pay its share of the plan's unfunded liability,” which ....
    • Garden Leave Provisions: A groing trend in employment agreements Thomas B. Lewis, Chair of Stark & Stark's Employment Group, and Mark F. Kowal, Associate in Stark & Stark's Employment Group, authored the article, Garden Leave Provisions: A growing trend in employment agreements, for the New Jersey Law Journal's April 18, 2011 Employment & Immigration Law Supplement.   The article reviews the history of the garden leave and its advantages and disadvantages to New Jersey employers in determining whether a garden leave provision should be used in employment contracts. Historically, New Jersey courts have had scant experience interpreting garden leave provisions in employment contracts. A garden leave provision requires an employee to give advance notice of a defined length of time before terminating the employee’s employment.   You can read the full article online here.   ....
    • Stark & Stark Shareholder Comments on Wells Fargo Decision Thomas B. Lewis, Chair of Stark & Stark’s Employment Group, was quoted in the April 14, 2011 International Business Times’ article, Wells wins sliver of amount sought in Stifel raiding claim. The article discusses the recent decision by an arbitration panel which ordered Stifel, Nicolaus & Co to pay Well Fargo Advisors $167,000 for improperty recruiting former AG Edwards financial advisors.  Mr. Lewis states, “The basis of such a defense is that the advisers were planning to leave the firm anyway and Stifel was simply offering them a home.” You can read the full article online here. ....
    • ERISA's Anti-Cutback Rule ERISA section 1054(g)(1), provides in relevant part: “The accrued benefit of a participant under a plan may not be decreased by an amendment of the plan ….” The anti-cutback rule is a “crucial” aspect of ERISA's protection of pension benefits. In light of the importance of the anti-cutback rule and in order to avoid work-arounds that curtail accrued benefits by means other than formal plan amendments, courts have deemed actions to be violative of the anti-cutback rule even when there had not been a formal amendment of a pension plan.    Treasury regulations implementing the anti-cutback rule make the point explicitly: a pension plan may not deny a protected benefit “directly or indirectly, through the exercise of discretion ....”  Moreover, plan participants are entitled to notice whenever a plan amendment is seriously considered or enacted.    Sometimes a violation of the anti-cutback provision will give rise to a ....
    • ERISA Funding Requirements Each plan subject to minimum-funding requirements must maintain a minimum-funding standard account and meet a minimum-funding standard. A funding standard account consists of charges for normal costs, amortization costs and funding deficiencies, offset by credits for amounts contributed by the employer, amortization gains, waived funding deficiencies, and the excess of any debit balance in the funding standard account over any debit balance in the alternative minimum standard account, if any.   All costs, liabilities, rates of interest, and other factors under the plan must be determined on the basis of actuarial assumptions and methods that must be reasonable in the aggregate and in combination offer the actuary's best estimate of anticipated experience under the plan. A plan meets the minimum-funding requirements only if, at the end of each plan year, the account does not have an accumulated funding deficiency. ....
    • Fiduciary Duty Under ERISA ERISA establishes the fiduciary responsibilities applicable to employee benefit plan administrators and sets out certain fiduciary standards by which trustees' actions will be measured, including the mandate that trustees are to discharge their duties solely in the interest of the plan with the care, skill, and diligence which a prudent individual would use in similar circumstances in accordance with the instruments governing the plan and through diversifying the plan's investments.   Supplementing these fundamental standards prohibits specific transactions. A plan fiduciary may not cause the plan to engage in a transaction that constitutes a loan, sale, or other transfer of assets to a party in interest, or the improper acquisition of employer security or real property. The statute also forbids a fiduciary from dealing with assets of the plan in his own interest or receiving consideration from any party dealing with the plan in a transaction involving plan assets; nor may a ....
    • Employers Increasingly Faced with Need to Navigate the Perils of Social Media and Networking Facebook, Twitter, LinkedIn, YouTube, personal blog sites and other social media and networking sites have become a part of everyday life.  Not surprisingly, social networking and social media sites have found their way into the workplace.  While such sites can be an extremely valuable resource for both employers and employees, their use also gives rise to a variety of new legal issues, concerns and claims for employers to navigate.  With the advent of such issues, large and small employers alike are now recognizing the need to develop and implement policies to limit and control their employees’ work-related Internet posts as well as the employers’ own use of social networking sites in making hiring and employment decisions.   While social media can provide new ways to interact and respond to customers, social media activities by employees can create numerous problems for employers.   For example, a company can work for years to craft a ....
    • The Employee Retirement Income Security Act As a long-term employee, it is important to know what is happening with your pension plan, but more importantly, what could happen.  There is an enormous body of law that covers retirement plans, however, given its convoluted nature, a simple question or issue may require a lengthy and complex answer.  Nonetheless, below, and following in later posts, is a condensed discussion of the general law and some of the more prominent issues that arise in the context of pension plans. The Employee Retirement Income Security Act of 1974 (“ERISA”), established a comprehensive regulatory and remedial scheme designed with a curative aim to protect individual pension rights and is liberally construed to safeguard the interests of fund participants and beneficiaries and to preserve the integrity of fund assets.  ERISA's policy is to protect the interests of employee-benefit plan participants and beneficiaries, by requiring the disclosure and reporting to them of financial ....
    • Pension Protection Act of 2006 On August 17, 2006, President Bush signed into law the Pension Protection Act of 2006 (the “PPA”).  The PPA establishes new funding requirements for defined benefit pensions and included reforms that affect cash balance pension plans, defined contribution plans, multiemployer plans and deferred compensation plans for executives and highly compensated employees.  However, as it relates to multiemployer plans such as union pension plans, most of the funding requirements for multiemployer plans that were in effect before enactment of the PPA remain in effect under the new law.  The PPA simply establishes new requirements for multiemployer plans that are in financial distress as a result of being significantly underfunded.  Essentially, the PPA abrogates certain anti-cutback rules and establishes a new set of rules for improving the funding of multiemployer plans that are deemed to be in “endangered”, “seriously endangered” or ....
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