If you run a business, you may have wondered if there is a difference between "business law" and "commercial law." Many people use the words "business" and "commercial" almost interchangeably. Is there a difference -- and does it affect the kind of lawyer you need?
The differences between the two areas of law are real, but the two areas overlap a great deal. For most situations you'll encounter as a business owner, the same lawyer should be able to assist you with either.
Lately, it seems like a new opinion about the enforceability of arbitration provisions in New Jersey comes out every day. In a newly published Appellate Division opinion, written by the Presiding Judge of the Appellate Division, Jack Sabatino, P.J.A.D., the court held a click through arbitration agreement was unenforceable. At the outset, the Court described the case as exemplifying the "inadequate way for an employer to go about extracting employees' agreement to submit to binding arbitration for future claims and thereby waive their rights to sue the employer and seek a jury trial." The plaintiff, here, alleged religious discrimination in violation of the New Jersey LAD (stemming from a mandatory vaccination policy).
If you aren't certain your workers are properly classified as employees or independent contractors, you're not alone. Unfortunately, the Department of Labor is keeping an eye out for companies that classify workers as contractors when they are legally employees. This is because contractors aren't entitled to employer contributions to payroll taxes, provide workers' comp, unemployment insurance and other benefits. They are also exempt from a number of protective workplace laws.
If you are found to have misclassified workers, you could owe back wages and overtime. If the DOL decides you misclassified them willfully or intentionally, you could be liable for twice the actual wages owed.
In a slip copy opinion authored by Judge William J. Martini, U.S.D.J., the United States District Court for the District of New Jersey held that the recently enacted New Jersey Equal Pay Act (NJEPA) does not have retroactive application. Perrotto v. Morgan Advanced Materials, PLC, 2019 WL 192903 (Jan. 15, 2019). The issue came before the court by a Motion to Dismiss, filed by Defendants. The court granted the Defendants' Motion to Dismiss without holding oral argument. This holding is important to employers as the potential damages for violation of the Equal Pay Act are the salary or wages due from the employer plus an additional equal amount as liquidated damages, as well as attorney's fees.
Plaintiff had the title Controller/Human Resources until her termination on April 5, 2018. Just three weeks later, the Diane B. Allen Equal Pay Act (codified at N.J.S.A. ยง34:11-56:13) was signed into law, which requires "pay equality across all protected classes." The Act became effective on July 1, 2018. Plaintiff filed this action on July 27, 2018, alleging gender discrimination under New Jersey's Law Against Discrimination and retaliatory compensation practices under the NJEPA. Her compensation claim alleged Defendants paid male employees more than female employees, for substantially similar work.
In today's job market, companies need every advantage they can get when it comes to hiring and retention of workers. Requiring new hires to sign restrictive covenants like noncompete agreements could be off-putting to some of the best talent in a limited pool.
Yet companies have every right to protect their investment in talent and intellectual property, and noncompete agreements are a standard part of that process. What's the best way to balance protecting the company's interest with attracting new employees with valuable experience?
When might one company be considered a "joint employer" with another company over the same workers? It's an important question, because joint employers share liability for labor law violations.
Consider the case of a franchisor and franchisee. When could a franchisor (parent company) be held liable for labor law violations committed by its franchisee? Traditionally, franchisors have only been held responsible for franchisees' labor law violations when the franchisor has exercised direct control over significant aspects of the employment relationship, such as on hiring, pay or working conditions.
When you enter into business or commercial litigation, you expect either to settle out of court or to have a trial. In some situations, however, the trial is cut short because one party files for summary judgment and a judge grants that motion. What is summary judgment?
It helps to understand that there are two basic things to be decided at any trial: the facts and the law. The facts are the "who, what, when, where and why" of the trial. For example, a judge or jury might be asked to determine who breached a particular contract, on which date, in what jurisdiction and for what purported reason. Once the facts are determined, the judge applies the law. Examples of legal questions include whether the contract was valid and whether the breaching party's reasons excuse their conduct.
You've entered into a contract, but the other party hasn't carried through on their promises. Failing to comply with the terms of a valid agreement is called "breach of contract." Contract breaches may be resolved through negotiation, alternative dispute resolution or courtroom litigation.
As we've discussed before on this blog, not every contract is enforceable. However, the purposes of this post, we'll assume that the contract is valid and not voidable.
The Trump administration promised to make federal agencies friendlier toward businesses and employers, and some progress has been made on that goal. Recently, the Department of Labor has taken steps to encourage assisted, voluntary compliance with wage and hour laws.
A panel at a recent American Bar Association conference identified two such areas -- DOL opinion letters and the PAID program -- along with another issue many employers should be aware of, H-1B visa compliance.
The Age Discrimination in Employment Act of 1967 (ADEA) prohibits discrimination in any aspect of employment against people 40 and older. When two firefighters from a small Arizona district sued for alleged age discrimination, however, the fire district claimed that the law only applied to organizations with at least 20 employees. The firefighters appealed all the way to the Supreme Court, which has just ruled in their favor.
The ruling means that all local, state and federal agencies, no matter how small, are covered by the ADEA and are prohibited from engaging in age discrimination.
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