Recent Blog Posts

• The Impacts of Family Leave Insurance With the advent of the newest employee benefit in New Jersey, business owners ask what impact Family Leave Insurance will have on the employer’s discretion to terminate employment due to business conditions or other considerations. The Legislature has made it clear that the amendments to the Temporary Disability Benefits law, commonly known as the “Paid Family Leave Act”, confer a monetary benefit, but not a leave entitlement. In other words, this law does not further erode the “At-Will” concept of employment, that the employer is free to change the working conditions or terminate the employment of a worker with or without notice and with or without good cause for the termination.   Of course, appropriate law limits this discretion where there is a written contract specifying a certain duration of employment or if the employer’s action violates applicable laws (These laws include Family Leave Acts, Discrimination Laws, implied promises contained ....
• Stark & Stark Shareholder Comments on New Jersey Supreme Court Ruling Concerning to the New Jersey Consumer Fraud Act Thomas B. Lewis, Chair of Stark & Stark's Employment group, was quoted in the June 5, 2009 article on Law360.com entitled, Securities Sales Not Subject To Fraud Act: NJ Court. The article discuss the recent New Jersey Supreme Court ruling which states that a broker accused of failing to properly transfer funds for the purchase of securities and the firm that employed the broker can't be held liable under the New Jersey Consumer Fraud Act.   Mr. Lewis states that applying to the New Jersey Consumer Fraud Act to cases such as this could be harmful to banks and brokerage houses, as the ramifications of applying the statute to such sales could be mind-boggling because of the treble damages and court costs provisions. You can read the full article online here . (PDF) ....
• Stark & Stark Shareholder Comments on Enforcement of Brokers Bonus Repayment Thomas B. Lewis, Shareholder and Chair of Stark & Stark's Employment Litigation group, was quoted in the May 7, 2009 Dow Jones article, BROKER'S WORLD: Brokers Fight Bonus Repayment - And Lose. The article discusses the recent rise in companies enforcing the repayment of signing and retention bonuses. Mr. Lewis states that, "Enforcement proceedings...are becoming even more common as brokers move to different companies and cash-strapped brokerages try to grab whatever money they can."   You can read the full article online here. (PDF) ....
• A Safe Harbor for Employment Claims Thomas B. Lewis, Chair of Stark & Stark's Employment Group, and Michael J. Brittan, member of Stark & Stark's Employment group, authored an article for the Monday March 30, 2009 edition of the New Jersey Law Journal entitled A Safe Harbor for Employment Claims: Ensure minimal liability from discrimination claims.   The article discusses what employers should do in a discrimination case if, after investigating and taking action against the discriminating employee, the offended employee continues to pursue legal action. You can read the full article online here. ....
• Employees Beware: Email Exchanges on Company Property May Waive Attorney-Client Privilege In a ruling this pas February in Stengart v. Loving Care Agency (BER-L-858-08), a New Jersey Superior Court Judge found that an employee’s e-mail correspondence with her counsel, made on the company’s laptop was not protected under the attorney-client privilege, despite the fact that she has used a password-protected, web-based email account and not her company email.  Court’s throughout the country have consistently found that when an employee utilizes an email account issued by the employer, over the employer’s servers, such correspondence is not generally protected by the attorney-client privilege if the employer gave sufficient notice that emails are subject to review.  The Stengart case, however, is one of first impression and seemingly takes the policy rationale of these noted decisions one step further, finding that even when an employee is prudent enough to use a “private” email account, such communications may be deemed company ....
• Stark & Stark Shareholder Comments on Breach of Protocol for Broker Recruiting Thomas B. Lewis, Shareholder and member of Stark & Stark's Employment group, was quoted in the April 1, 2009 OnWallStreet.com article The Last Weapon. The article discusses the increased rise in advisors being accused of taking classified client information as a breach of the Protocol for Broker Recruiting when leaving a current firm. Mr. Lewis offers several Do's and Don'ts for advisors as they consider a move. You can read the full article here. (PDF) ....
• What You Need To Know About The New Jersey Paid Family Leave Law As most New Jersey employers and employees alike are aware, since January 1, 2009, payroll deductions have been taken to fund New Jersey’s Paid Family Leave benefit.  Paid leave benefits themselves, however, only become available as of July 1, 2009.  With this commencement date approaching, it is important for employees to understand whether or not they may be eligible for Paid Family Leave benefits, the value of the benefits, and what they need to do to obtain them.  It is also important for employers to understand their rights and obligations under this relatively new law to ensure compliance with the same. What is New Jersey Paid Family Leave? New Jersey Paid Family Leave is funded 100% by employees through payroll deductions and benefits are administered through the State’s existing Temporary Disability Benefits Program.  It is not really a “leave” program, rather it is a wage replacement law – similar to temporary disability ....
• Stark & Stark Shareholder Quoted in Smith Barney InvestmentNews.com Article Thomas B. Lewis, Shareholder and Chair of Stark & Stark's Employment group, was quoted in the Monday March 2, 2009 InvestmentNews.com article Judge clears two ex-Smith Barney brokers. Last Thursday two ex-Smith Barney brokers, William Meyer and Marcy LePrell, were cleared of allegations that they took private client information to their new firm. Mr. Lewis, who represents Mr. Meyer and Ms. LePrell, stated that the entire case was nothing more than an attempt by Smith Barney to keep its reps under control after a a rising number of brokers left the firm in February of this year.   You can read the full article here. (PDF) ....
• Stark & Stark Shareholder Comments on Breach of Protocol for Broker Recruiting by Smith Barney Employees Thomas B. Lewis, Chair of Stark & Stark's Employment group, was quoted in the March 5, 2009 LancasterOnline.com article Brokers battle over client info. Mr. Lewis comments on the pair of Lancaster brokerage firms alleging that two former Smith Barney employees, William Meyer and Marcy LePrell, took confidential customer information with them when they joined Janney Montgomery Scott on Feb. 18, 2009.   You can read the full article online here. ....
• Stark & Stark Shareholder Comments on Bank of America CEO Thomas B. Lewis, Shareholder and Chair of Stark & Stark's Employment group, was quoted in the January 13, 2009 Daily Report article, CEO may be rethinking BofA's 'crown jewel'. Mr. Lewis comments on Bank of America Chief Executive Officer Ken Lewis' reputation for not appreciating the nuances of the client-broker relationship, and the other pitfalls Lewis has made over the past several weeks. You can read the full article here (PDF).  ....
• Employer/Employee Relationships: Non-Compete, Confidentiality and Non-Solicitation Clauses During recessionary times, most people are acutely aware of the general business relationship they have with their employer.  Few, however, fully appreciate the legal duties they may owe their employer as a result of documents they signed when they joined the company.  This lack of understanding can lead to problems when employees, frustrated by cut-backs in compensation, decreased wages and general job instability take actions that run “afoul” of the contractual and common law agreements they have with their employers.  Three (3) major pitfalls are outlined below: Example One:  Confidentiality Agreements All but a few employers require that new employees sign some form of confidentiality agreement.  This agreement usually comes in the stack of medical forms and other documents that are presented to the employee at or around their first day of work.  Most of these confidentiality agreements require that the employee maintain the confidentiality ....
• Employer Alert: Use of New I-9 Form Required by February 2, 2009 Beginning on February 2, 2009 April 3, 2009, all employers will need to complete a revised I-9 form for all new employees, as well as for reverification of certain employees with temporary work authorization. The following changes have been made relative to the documents that employers can accept for employment verification: All documents presented to the employer during the verification process must be unexpired. Previously, it was not uncommon for an employer to accept certain expired document such as a United States passport. List A identity and employment authorization documentation will no longer include Temporary Resident Card (Form I-688), Employee Authorization Card (Form I-688A) and Employment Authorization Card (Form I-688B), as these cards are now obsolete. List A will now include foreign passports containing certain immigrant visas that are machine readable and passports from the Federated States of Micronesia or the Republic of the Marshall Islands if presented with an ....
• Paid Family Leave Provides No Additional Job Security With the advent of the newest employee benefit in New Jersey, business owners ask what impact Family Leave Insurance will have on the employer’s discretion to terminate employment due to business conditions or other considerations. The Legislature has made it clear that the amendments to the Temporary Disability Benefits law, commonly known as the “Paid Family Leave Act”, confer a monetary benefit, but not a leave entitlement. In other words, this law does not further erode the “At-Will” concept of employment, that the employer is free to change the working conditions or terminate the employment of a worker with or without notice and with or without good cause for the termination.   Of course, appropriate law limits this discretion where there is a written contract specifying a certain duration of employment or if the employer’s action violates applicable laws (These laws include Family Leave Acts, Discrimination Laws, implied promises contained ....
• Stark & Stark Shareholder Comments on Reaction From Bank of America & Merrill Lynch Merger Thomas B. Lewis, Shareholder and member of Stark & Stark's Employment group, was quoted in the January 9, 2009 article, Brokers Disdain Toaster Salesmen in Bank America Deal. Controversy has followed Bank of America's September 15, 2008 acquisition of Merrill Lynch since day one. Initially, disputes arose over whether or not Bank of America would honor Merrill Lynch's employment contracts for the nearly 16,000 brokers affected by the acquisition. Now, two senior Merrill executives have left within days of the acquisition becoming final. Mr. Lewis discusses the steps Chief Executive Officer, Kenneth Lewis, needs to take going forward in order to keep those brokers he has left, happy. You can read the full article here. ....
• 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 ....