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News You Can Use The Family and Medical Leave Act Under Review After 12 Years On December 1, 2006, the United States Department of Labor published a request for information and public comments to find out what’s working–and what’s not–with the 12-year-old law that allows employees to take up to 12 weeks of unpaid leave for various medical reasons. Signs & the Consumer Fraud Act Recently, a local furniture store was closing and conducted a “going out of business sale” for months as evidenced by the human billboards all over town. I drove by observing these workers in the rain, cold and inclement weather. As a labor lawyer I could not help but wonder who would want these jobs, whether they were being paid in accordance with minimum wage laws, and covered by worker’s compensation in the event they were hit by a car. I also wondered if this new job title was in response to recent ordinances or laws prohibiting signs on buildings or telephone poles. Additionally, I was concerned whether the “sale” was legitimate and not a marketing plan. As a business owner and consumer, you should know that these sales are governed by the New Jersey Consumer Fraud Act. N.J.S.A. 56:8-2.8 provides: It shall be unlawful practice for any person to advertise for sale as a “going out of business sale” or in terms substantially similar to “going out of business sale” for a period in excess of 90 days or to advertise more than one such sale in 360 days. The 360-day period shall commence on the first day of such sale. For any person in violation of this act, each day in violation shall constitute an additional, separate and distinct violation. Preventing Identity Theft Ever get a message similar to one of the following when checking your email or visiting a website? “We suspect an unauthorized transaction on your account. To ensure that your account has not been compromised, please click here to authenticate your personal profile.” Or, On the non-internet side of life:
If you suspect you already have a problem: There are several agencies you will need to contact to begin restoring your identity, your credit and help bring the thieves to justice. Contacting the following is a good start:
To learn more about how to avoid becoming a victim, visit the U.S. Department of Justice web-site at http://www.usdoj.gov/criminal/fraud/idtheft.html. MEDIATION IN THE SUPERIOR COURT In the interest of decreasing the Court calendar and providing faster resolution of disputes, a Civil Mediation program has been established in the Courts. Mediation is a process in which an impartial third party who is neutral, the mediator, facilitates communication between disputing parties for the purposed of assisting them in reaching a mutually acceptable agreement. Mediators do not have authority to make a decision for the parties or to impose a settlement. In Ocean County the following types of cases are referred to presumptive mediation: Civil Rights, Law Against Discrimination, Environmental, Real Property, Contract, Tort (Personal Injury), Commercial Transactions, Employment, Divorce cases with economic issues, Toxic Tort, Construction and Tenancy. Mediators are appointed by the Court after completion of a training program and are entitled to a fee for their service after the first 3 hours which is split between the parties. (The 3 free hours has been an issue for many mediators and a proposal is pending to provide some limited compensation for Mediators.) A case is assigned to Mediation after an Answer to the Complaint is filed. The Mediation is supposed to occur within 90 days after the referral to Mediation although the deadline can be extended. As an advocate for my clients, I am all in favor of Mediation. Litigation is a long, arduous and difficult process for many of my clients. The more the case lingers on and they have to retell their story, the more they are prevented from moving forward with their lives. I have a sign in my office, "This too shall pass." It will pass a lot sooner if you settle your case quickly. Additionally, the more discovery or work the attorneys do, the more the legal fees and expenses of litigation add up. You may get more money at trial, but it will cost you more. Some attorneys are naturally reluctant to mediate and dissuade their clients from participating positively in the process. As a Mediator, I know that the best resolution of a dispute is one the parties themselves work out and agree on. You can be creative and obtain relief that may not be available if you win in Court. You can cut your losses early on and have certainty about the outcome. When you go to Court, anything can and will happen, but we will leave that for another day. Disclaimer: The views expressed in this article are solely those of the writer and not the Brick Township Chamber of CommerceNew Regulations Implement theUniform Services Employment and Reemployment Act of 1994 (USERRA) The USERRA law prohibits employment distribution against people who serve in the military and provides certain reemployment rights on their return from service. All employers are covered. There is no exemption for small businesses. All types of military service are covered, including duty performed on a voluntary basis in time of war or peace. A salaried supervisor or professional has the same rights under the law as an hourly wage earner. There is no obligation for an employer to pay employees while on military duty. Rather the main emphasis of the law is reinstatement to the former job position in the same position as if the employee never left. The new regulations provide some guidance on how USERRA will be implemented: Escalator principle. The law says that when a service member returns, the individual is restored to the position he or she would have had, if not for the military service- under what is known as the “escalator principle”. The escalator principle means that returning employees step back on the employment “escalator” at the point they would have reached if their job had not been interrupted by military service. The escalator may have gone up or down. Co-workers may have received promotions during the period the service member was away. The employee may no longer be qualified to perform his pre-service job because of injuries sustained during that service. The regulations provide guidance on those issues. Prompt reemployment. USERRA provides for prompt reemployment after employees return from military service. The regulations state that in most cases, “prompt” means within two weeks of the service member's application for reemployment. The regulations also specify the time period within which a returning service member must submit an application. That period varies, depending on how long the employee has been away. The regulations also make it clear that a service member should have a sufficient amount of time to report to her military unit and report back after the period of service The new USERRA regulations can be found at: The DOL also has a poster which you can download and post in the workplace to meet your legal obligation to inform employees of their rights. The poster may be found at www.dol.gov/vets/programs/userra/USERRA_Private.pdf#Non -Federal. Finally, the agency's website also has an “E-Laws USERRA Advisor,” which guides you and your employees through the law's requirements. The website provides names and telephone numbers of state directors, and you can call them with any questions you might have about complying with the law. If you would like further information on this subject please contact Carolyne at 732-785-0800 Disclaimer: This article provides general information only and is not intended as legal advice. THE INTERNET FRIEND OR FOE As an “old timer”, my friends and colleagues know that I am somewhat new to Cyberspace and a little resistant to web pages, blackberries and daily checking of e-mails. However, as an attorney, the Internet can assist me with legal research. Additionally, in Federal Court “e filing” is now mandatory. However, I firmly believe that the Internet is a big problem to business today. It has been estimated that employees are wasting as much as two hours per day on the internet doing personal errands and forwarding jokes, chain letters and the like. In addition to an employee not being productive during that time, they may be subjecting the employer to liability for sexual harassment and/or hostile work environment. All it takes is one employee to be offended. As an employer, you really need to stop this trend now. My suggestion is that employers have an Internet policy and that they vigorously enforce it. The policy should come up right the screen at the beginning of each day. You should advise all employees that you will be monitoring their computer use as a deterrent. Then you should monitor or check the employee's usage weekly or monthly. Consider putting the following in your Internet policy:
If you would like more information on this subject, please contact my office at 732- 785-0800. Disclaimer: This article provides general information only and is not intended as legal advice. Put the Deal in Writing Whether you are a business owner, or home owner (or both), you should be aware of recent changes to the Consumer Fraud Act regarding Home Improvement Contracts. "Home Improvement" means remodeling, altering, repairing, restoring, or even demolishing a residential property. Covered trades include building contractors, painters, landscapers, siding and window installers, and sheet rock and molding workers. Every home improvement contract with a purchase price in excess of $500.00 must now be in writing and signed by the parities. If the contractor does not have a signed contract, they will be unable to prevail in court if the homeowner does not pay for services performed. The contract must contain the sales price including finance charges and the registration number of the contractor. Additionally, the contract must notify the consumer of the right to cancel the contract within three business days. The notice must be "conspicuous" and at least in "10 point bold face". See N.J.S.A. 56:8-151, the example provided in the statute is set forth below. "NOTICE TO CONSUMER YOU MAY CANCEL THIS CONTRACT AT ANY TIME BEFORE MIDNIGHT OF THE THIRD BUSINESS DAY AFTER RECEIVING A COPY OF THIS CONTRACT. IF YOU WISH TO CANCEL THIS CONTRACT, YOU MUST EITHER: 1. SEND A SIGNED AND DATED WRITTEN NOTICE OF CANCELLATION BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED; OR 2. PERSONALLY DELIVER A SIGNED AND DATED WRITTEN NOTICE OF CANCELLATION TO: (Name of Contractor) (Address of Contractor) (Phone Number of Contractor) If you cancel this contract within the three-day period, you are entitled to a full refund of your money. Refunds must be made within 30 days of the contractor's receipt of the cancellation notice." In addition to the above, you may also wish to include in your contracts, a binding arbitration clause and a provision that if you are sued and win, the "loser pays" your attorney's fees. DISCLAIMER: This article provides general information only and is not intended as legal advice. Special thanks to Carolyne S. Kalson Esq., of the Law Office of Carolyne Kalson and Harry Appleheimer of Ocean County Vocational Technical School for writing the following article. ARE YOU IN COMPLIANCE WITH CHILD LABOR LAWS? Federal and State child labor laws protect minors, anyone under age 18. Minors under age 18 must receive a 30 minute meal break after five (5) consecutive hours of work (this does not apply to adults). The rules differ for 14 - 15 year old and 16 - 17 year old minors. While school is in session, 14 - 15 year old minors may not be employed more than three (3) hours per day on school days, more than eight (8) hours per day on non school days, and more than eighteen (18) hours per week in school weeks. During school session, 16 - 17 year old minors may not be employed more than eight (8) hours per day, more than 40 hours per week and more than six (6) consecutive days. There are also prohibited hours of work and prohibited occupations. The law also requires posting a Notice on Employer premises. Several pamphlets and posters are available from the New Jersey Department of Labor to guide employers in complying with the laws. The NJDOL has a reference guide, “Labor Laws for Kids”, as well as a pamphlet “Child Labor Laws & Regulations” and a sample poster, “New Jersey Child Labor Law Abstract”. Copies of these pamphlets and posters are available from the New Jersey Department of Labor, office of constituent relations, PO Box 110 Trenton, New Jersey 08625-0110, (609)777-3200. You can also stop in to see Lucille Brown, Business Service Center Representative at 1027 Hooper Ave., Toms River, New Jersey 08753, for copies of these materials. For more information, visit www.youthrules.dol.gov on the web. However, keep in mind that this website discusses Federal Labor Laws. As a general rule, New Jersey Labor Laws are more protective of minors and employees in general. Be sure to check the state law and regulations. Disclaimer: This article provides general information only and is not intended as legal advice. The child labor laws differ depending on the nature and kind of employment as well as the age of the student. It is suggested that you review the applicable laws and regulations annually or when ever you are hiring a minor at your workplace. NEW JERSEY OFFERS BUSINESS SERVICES AT NO AND LOW COST The New Jersey Department of Labor has Employer HR Support Services available either free or at minimal cost. Human Resource specialists provide confidential assistance to employers who wish to prepare policy manuals and employee handbooks, improve selection and hiring processes, control labor turnover and absenteeism, arrange for free on-site training of supervisors/managers in various areas, to name just a few of the programs which are offered. For further information, call Employer HR Support Services at 609-984-3518. The New Jersey Economic Development Authority (NJEDA) and the New Jersey Development Authority (NJDA) for Small Businesses, Minorities’ and Women’s Enterprises are offering information workshops for small business planning and financing. The next Entrepreneurial Training Institute (ETI) program will be held on Thursday, September 29, 7-9pm in the Jackson Branch of the Ocean County Library, 2 Jackson Drive. For further information, please call 609-292-9279, log on to the website www.njeda.com, or email eti@njeda.com. MINIMUM WAGE INCREASE AND REQUIRED POSTINGS The New Jersey State minimum wage has been raised to $6.15per hour, effective October 1, 2005 and $7.15 per hour effective October 1, 2006. Under the New Jersey Administrative Code, employers are required to post a notice regarding the minimum wage increase. The required notice can be obtained through the New Jersey Department of Labor, Office of Constituent Relations, PO Box 110, Trenton, NJ 08625-0110, (609) 777-3200. The Ready Reference Business Guide is an excellent pamphlet that summarizes posting requirements and laws governing employers. The guide and many of the posters are available at the New Jersey Department of Labor, Business Service Center, 1027 Hooper Avenue, 2nd Floor, Toms River, NJ 08754. Copies of the Ready Reference Guide are also available at the Chamber office.
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