Monthly Archives: October 2012

Telling Your Employees How to Vote: Just Say No

By Andrew M. Moskowitz, Esq.
amoskowitz@pashmanstein.com

Republican candidate Mitt Romney has reportedly stated to a group of small business owners that he hopes they have made “very clear” to their employees “what you believe is in the best interest of your enterprise and therefore their job and their future in the upcoming elections.”  At the beginning of October, Koch Industries, owned by the billionaire businessmen and conservative activists Charles and David Koch, issued a letter to its employees expressing its political views and suggesting which candidates they should support.

May New Jersey employers lobby their employees in such a manner?

The answer is that employers in the Garden State should be very wary about telling their employees for whom to vote or otherwise expressing their political views.  Under New Jersey law, an employer may not threaten its employees with “injury, damage, harm or loss” to induce them to vote for a particular candidate or as retaliation for having done so.  N.J.S.A. 19:34-27.  In addition, an employer may not “within ninety days of an election” display in the workplace a notice threatening that if a particular political party or candidate is elected then work “will cease, in whole or in part, or [the] establishment [will] be closed up, or the salaries or wages of his employees [will] be reduced, or [any] other threat, express or implied, intended or calculated to influence the political opinions or actions of his employees.”  N.J.S.A. 19:34-30.

A letter such as that authored by Koch Industries, which warns the company’s “more than 50,000 U.S. employees and contractors” that they may “suffer the consequences, including higher gasoline prices, runaway inflation, and other ills,” arguably violates N.J.S.A. 19:34-30.  A New Jersey employer would be wise to refrain from sending such a letter to its employees.

New Jersey law also prohibits employers from mandating attendance at politically-sponsored events.  Specifically, the Worker Freedom from Employer Intimidation Act, N.J.S.A. 34:19-9 through 34:19-14, passed in 2006, prohibits employers from requiring employees to attend employer-sponsored meetings or participate in communications in order to convey the employer’s opinion about political matters.

Bottom line for employers: Keep politics out of the workplace.  There is very little upside and significant downside.

New Jersey Supreme Court Confirms Businesses Are Not Liable for Cleanup Costs Under New Jersey Spill Control Act Unless State Meets High Burden of Proof

By Samantha Sherman, Esq.
ssherman@pashmanstein.com

The New Jersey Supreme Court ruled on September 26, 2012 that the state must show “a reasonable nexus or connection” between the suspected polluter’s hazardous discharge and contamination at the damaged site in order to obtain damages and other authorized costs under the New Jersey Spill Compensation and Control Act (“Spill Act”).  The 42-page unanimous decision in New Jersey Department of Environmental Protection v. Dimant (“Dimant”) represents a victory for the business community over environmental organizations, both of which had filed amici curiae because of potential implications for future attempts to recover cleanup costs from businesses statewide.

The litigation stems from the discovery in 1988 that residential wells in Bound Brook, New Jersey had been contaminated with perchlorethylene (“PCE”), a solvent commonly used by dry cleaners and auto-body shops.  That year, state investigators looking for the source of contaminated groundwater found an external pipe from Sue’s Clothes Hanger (“Sue’s”) dripping PCE onto a driveway.  Sue’s was a family-owned laundromat and dry cleaning business in a small strip mall.  Although Sue’s had only been in operation for about fifteen months, the property had been used by laundry and dry cleaning businesses since the 1950s. The state did not perform any additional testing and did not take any enforcement action at that time.

Approximately sixteen years later, in 2004, the NJDEP brought a Spill Act claim against Sue’s for investigation and cleanup costs.  Other parties settled prior to trial.

The trial court found that the NJDEP did not establish that Sue’s contributed to the groundwater contamination by a preponderance of the evidence.  The court noted that the contamination preceded the dry cleaning operation; that the drip was not retested and was not shown to have been continuous; that there was no evidence that the dripping PCE had penetrated all the way through the asphalt beneath the pipe; and that there was no way to tell that the PCE in the groundwater came from Sue’s as opposed to other local dry cleaners or prior dry cleaning businesses at the same site.  The Appellate Division affirmed.

The NJDEP argued before the Supreme Court that the courts below had applied the wrong standard, and that it should be able to establish liability under the Spill Act by showing that Sue’s had been responsible for a discharge and that the same substance had been found at the site.

The court rejected the NJDEP’s argument and held there was no basis for the state to shift liability onto Sue’s because it never showed that the discharge by Sue’s was connected to the groundwater damage “in some real, not hypothetical, way.”  The court held that DEP must prove by a preponderance of the evidence that leakage from the pipe during Sue’s operation actually caused contamination of the groundwater.

In dicta, the court distinguished the Spill Act from its federal counterpart, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and used their legislative histories to explain the different proofs of causation required under the two laws.

Advance Health Care Directives: Taking Care of Your Personal Health is Just as Important as Taking Care of Your Business’ Health

By Michael Zoller, Esq.
mzoller@pashmanstein.com

You spend the time to ensure the health of your business.  You have plans to make sure everything runs smoothly and should those plans fail, you have contingency plans in place.  Your personal health is just as important, so you should have the same type of contingency plan in place.  And the best form of contingency is an advance health care directive.

Generally a health care directive can come in three forms: (1) the patient can leave explicit directions regarding what care they want to receive or not receive; (2) the patient can appoint someone to serve as their proxy and make necessary decisions as they arise; and (3) a hybrid where instructions are given, but a proxy is also appointed to make decisions regarding situations not covered by the instructions.  The hybrid system allows the patient the most flexibility to cover all possible situations that could arise.

Now, people may worry that if they write an advance health care directive they are giving up control over their medical care.  This is not a fear people need to have.  An advance directive only goes into effect when it is given to a health care provider and the patient is determined to lack the capacity needed to make decisions.  N.J.S.A. § 26:2H-59(a).  Additionally, there are safeguards in place to protect a patient’s interests.  The capacity determination has to be made by at least two independent doctors.  N.J.S.A. § 26:2H-60.  And more importantly, a person, even after a determination has been made that he or she lacks capacity, always has the right to suspend any directive previously given.  N.J.S.A. § 26:2H-57(d).  Additionally, it is actually a crime for a health care provider to ignore the patient’s wishes regarding the application or revocation of an advance directive, so doctors are incentivized to follow the patient’s instructions.  N.J.S.A. § 26:2H-78.

While it is important that a person stay invested in their health care, a situation may arise where the person is not in the position to make necessary decisions.  If this situation should come to fruition, an advance health care directive with a proxy is the best contingency to have in place.  While a person may feel like they are giving up control by appointing someone else to make the decisions, in truth, with all the safeguards that are in place, the hybrid advance directive is actually the best way for the patient to maintain the most control.

Legislation signed creating Statewide Equality Notice Requirement for Employers

By Maxiel Gomez, Esq.
mgomez@pashmanstein.com

On September 21, 2012, Governor Chris Christie signed into law Assembly Bill No. 2647 requiring all New Jersey employers with 50 or more employees to post a notice advising employees of their right to be free from gender inequity or bias in pay, compensation, benefits or other terms or conditions of employment” under the New Jersey Law Against Discrimination (NJLAD), Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963, which prohibit wage or compensation discrimination based on gender.

The law takes effect on November 21, 2012, however, employers have thirty (30) days from the date that the Commissioner for the New Jersey Department of Labor and Workforce Development (NJDOL) issues the form of notice that employers are to use to comply with the law.  The posting must be in place accessible to all workers in each of the employer’s work locations in the form to be issued by the Department of Labor.

In addition to the posting requirements, employers must also provide a written notification to each worker.

Written Notification Requirements

When:

– No later than 30 days after the form of the notification is issued by NJDOL;
– At the time of hire, if the worker is hired after the initial notification is issued;
– Annually, on or before December 31st of each year;
– Upon employee’s request.

Format:

– Email;
– Printed material including pay check insert or as attachment to employee manual or policy;
– Internet, if site is for the exclusive use of all workers, can be accessed by all workers and employer provides notice to the workers of its posting.

Acknowledgement:

–  The written notification must contain acknowledgement that the worker has received, read and understands its terms.
– Acknowledgement must be signed by the worker, in writing or by electronic means, and returned to the employer within 30 days of receipt.

The employer must post and issue the notification in English, Spanish and any other language that the employer reasonably believes is the first language of a significant number of its workforce.

Employers should take this opportunity to amend their posting requirements and employee handbooks to ensure their policies are updated.

Conditionally Vetoed Bills

On September 21, 2012, Governor Christie conditionally vetoed two bills effecting employee’s rights in the workplace.  First, Bill No.  A2650 provides that a discriminatory compensation decision under the NJLAD occurs each time that compensation is paid.  This would restart the applicable statute of limitations governing discriminatory compensation claims by making each paycheck a separate and new violation of the NJLAD.   The Governor rejected the portion of the bill which sought to expand the amount of back pay an employee can recover and recommended that the bill be amended to limit an employee’s back pay recovery to a two-year period.   This bill mirrors the language in the Lilly Ledbetter Fair Pay Act of 2009.

The other bill (A2648) seeks to amend Conscientious Employee Protection Act to create a new category of employees protected to include employees who disclose, or threaten to disclose, to any other employee or former employee of the employer, information regarding the job title, occupational category and rate of compensation including benefits.  Governor Christie proposed that the bill be changed to protect only those employees who request information, not those who disclose information to others and become part of the NJLAD instead of CEPA.

These bills will now return to the Legislature which can either override the veto or accept the amendments proposed by the Governor.

Permit Extension Act of 2008 Has Been Extended…

By Scott Lippert, Esq.
slippert@pashmanstein.com

On Friday, September 21, 2012, Governor Christie signed legislation further extending the effect of the Permit Extension Act of 2008.  Under the new legislation, the expiration date for many governmental approvals and permits for land development is further extended to December 31, 2014.  This is significant, because many developers have been deferring action on existing permits and approvals, due to the unfavorable economic conditions that have prevailed over the last four years or so.

The hope is that once the presidential election is behind us, and assuming we get past the “fiscal cliff”, conditions for development will improve and we’ll see an uptick in development activity.  It would have served no useful purpose to require developers to go back to the various boards and agencies to obtain extensions  of existing permits and approvals, or worse, to have to go back to square one and reapply.  Let’s hope the additional time will lead to more activity.