New Jersey Extends EDA Loan Program to Minority or Women Owned Businesses

Governor Christie signed A1451 into law this week making EDA loans through the Urban Plus Program available to small, minority or women owned businesses located in designated New Jersey regional centers or metropolitan planning areas as if such businesses were located in urban centers.   Minority or woman owned business enterprises (MWBE) must be certified through the Department of Treasury.  As a qualification, MWBE applicants must demonstrate that the business is operated and controlled by a management team of women or minorities and such company is owned by a majority of minorities or women. The business must be involved with a commercially useful function and the minority or female ownership and management must be real, substantial, and continuing and not merely in name only.

 

© 2018 Giordano, Halleran & Ciesla, P.C. All Rights Reserved.
This post was written by Melissa V. Skrocki of Giordano, Halleran & Ciesla, P.C. 

Privacy Hat Trick: Three New State Laws to Juggle

Nevada, Oregon and New Jersey recently passed laws focusing on the collection of consumer information, serving as a reminder for advertisers, retailers, publishers and data collectors to keep up-to-date, accurate and compliant privacy and information collection policies.

Nevada: A Website Privacy Notice is Required

Nevada joined California and Delaware in explicitly requiring websites and online services to post an accessible privacy notice. The Nevada law, effective October 1, 2017, requires disclosure of the following:

  • The categories of “covered information” collected about consumers who visit the website or online service;

  • The categories of third parties with whom the operator may share such information;

  • A description of the process, if any, through which consumers may review and request changes to their information;

  • A description of the process by which operators will notify consumers of material changes to the notice;

  • Whether a third party may collect covered information about the consumer’s online activities over time and across different Internet websites or online services; and

  • The effective date of the notice.

“Covered Information” is defined to include a consumer’s name, address, email address, telephone number, social security number, an identifier that allows a specific person to be contacted physically or online, and any other information concerning a person maintained by the operator in combination with an identifier.

Takeaway: Website and online service operators (including Ad Techs and other data collectors) should review their privacy policies to ensure they are disclosing all collection of information that identifies, can be used to contact, or that is combined with information that identifies consumers. Website operators should also be sure that they are aware of, and are properly disclosing, any information that is shared with or collected by their third-party service providers and how that information is used.

Oregon: Misrepresentation of Privacy Practices = Unlawful Trade Practice.

Oregon expanded its definition of an “unlawful trade practice”, effective January 1, 2018, to expressly include using, disclosing, collecting, maintaining, deleting or disposing of information in a manner materially inconsistent with any statement or representation published on a business’s website or in a consumer agreement related to a consumer transaction.The new Oregon law is broader than other similar state laws, which limit their application to “personal information”. Oregon’s law, which does not define “information”, could apply to misrepresentations about any information collection practices, even if not related to consumer personal information.

Takeaway: Businesses should be mindful when drafting privacy policies, terms of use, sweepstakes and contest rules and other consumer-facing policies and statements not to misrepresent their practices with respect to any information collected, not just personal information.

New Jersey: ID Cards Can Only be Scanned for Limited Purposes (not Advertising)

New Jersey’s new Personal Information and Privacy Protection Act, effective October 1, 2017, limits the purposes for which a retail establishment may scan a person’s identification card to the following:

  • To verify the authenticity of the card or the identity of the person paying for goods or services with a method other than cash, returning an item or requesting a refund or exchange;

  • To verify the person’s age when providing age-restricted goods or services to the person;

  • To prevent fraud or other criminal activity using a fraud prevention service company or system if the person returns an item or requests a refund or exchange;

  • To prevent fraud or other criminal activity related to a credit transaction to open or manage a credit account;

  • To establish or maintain a contractual relationship;

  • To record, retain, or transmit information required by State or federal law;

  • To transmit information to a consumer reporting agency, financial institution, or debt collector to be used as permitted by the Fair Credit Reporting Act and the Fair Debt Collection Practices Act; or

  • To record, retain, or transmit information governed by the medical privacy and security rules of the Health Insurance Portability and Accountability Act.

The law also prohibits the retention of information scanned from an identification card for verification purposes and specifically prohibits the sharing of information scanned from an identification card with a third party for marketing, advertising or promotional activities, or any other purpose not specified above. The law does make an exception to permit a retailer’s automated return fraud system to share ID information with a third party for purposes of issuing a reward coupon to a loyal customer.

Takeaway: Retail establishments with locations in New Jersey should review their point-of-sale practices to ensure they are not scanning ID cards for marketing, advertising, promotional or any other purposes not permitted by the New Jersey law.

Read more legal analysis at the National Law Review.

This post was written byJulie Erin Rubash of  Sheppard Mullin Richter & Hampton LLP.

Same-Sex Divorces in New Jersey

On September 27, 2013, in a landmark case for the state, Garden State Equality v. Dow, New Jersey Superior Court Judge Mary Jacobsonruled that the state must allow same-sex couples to marry. While Governor Chris Christie immediately stated that his administration would be appealing the ruling, he eventually withdrew his appeal, and the first same-sex marriages in the state were performed just after midnight on October 21, 2013. Prior to this date, same-sex couples were only allowed to enter into civil unions in the state, which were not recognized by the federal government.

Same-sex couples in New Jersey now have the same rights as opposite-sex couples. These rights are most frequently recognized during the divorce process; namely with regards to the equitable distribution of assets acquired during the marriage and alimony that may be paid to the dependent spouse. Both of these concepts are dealt with by the court and determined through application of a variety of factors. One of the most important factors at issue with same-sex divorces is the length of the marriage. Obviously, same-sex marriages are likely to be shorter in duration than heterosexual marriages simply because same-sex couples were not legally allowed to marry until almost two years ago, and were only permitted to enter into civil unions since 2007 when The Civil Union Act was signed into law by then-Governor Jon Corzine.

However, because same-sex marriage is a relatively new concept in New Jersey, there have been significantly fewer same-sex divorces in the state and, therefore, case law addressing the award of alimony and equitable distribution in same-sex divorces are in infancy and not yet developed.

N.J.S.A. 2A:34-23(b) provides for different forms of alimony and requires the court to consider a variety of factors, one of which is the duration of the marriage, in awarding alimony to one party. However, this is the exact scenario in which same-sex couples are more disadvantaged then heterosexual couples because they only received the right to marry.

Consider a hypothetical situation in which a couple is divorcing in 2015. They have been together as if they were a married couple since 2008, but were only officially married in 2014. How should the court address the “length” of the couple’s marriage? In reality, they have only been married for a year, but the relationship itself has lasted much longer. If the court took the “length of marriage” factor literally, construing it from the day of actual marriage (one year ago), the dependent spouse could be awarded a comparatively minimal amount of alimony, considering the relationship has existed longer than just one year. The dependent spouse could potentially argue that they should be awarded a greater alimony award because the court should consider the fact that they were not legally allowed to get married and this is why the marriage is technically so short. Again, same-sex marriage and thus, same-sex divorce, is in its infancy in the Garden State, so it is impossible to know precisely how a court will rule in a scenario like this.

Another issue is cohabitation. Same-sex couples in New Jersey have had no other option but to live together without legal recognition. While there have not been cases that have addressed pre-marital cohabitation in regards to same-sex couples, this issue has been addressed for the purposes of alimony as it relates to heterosexual couples. In McGee v. McGee, the New Jersey Superior Court, Appellate Division held that the “extent of actual economic dependency, not one’s status as a spouse, must determine the duration of support.” Therefore, because pre-marital cohabitation may be considered for the purposes of alimony in an opposite-sex divorce, it is likely that such cohabitation, especially for individuals who could not get married, will be a factor in same-sex divorces.

The argument regarding the “length” of a same-sex marriage in New Jersey is further complicated by the fact that civil unions have existed in New Jersey since 2007. In Lewis v. Harris, the New Jersey Supreme Court held that the State must provide the same rights and benefits of marriage to committed same-sex couples that were given to opposite-sex couples. The reason why this complicates the equitable distribution of assets and the award of alimony in same-sex marriages is because it weakens the dependent spouse’s argument that the marriage would have been longer had New Jersey permitted same-sex marriage to be performed. The supporting spouse could argue that marriage-like status (civil union) was available to the couple and they did not take advantage of the civil union because they did not have a desire to and, therefore, the “length of marriage” should be calculated from the date of the actual marriage, rather than the beginning of the relationship.

Just like the calculation of alimony, the equitable distribution of assets attained while in a same-sex relationship is also analyzed considering a factor of “length of marriage.”

Overall, alimony and equitable distribution in same-sex marriages is new territory in New Jersey. Because there is no case law on point explaining whether same-sex marriages will be calculated based on the length of the relationship, or the definite day of marriage, careful review of the specific facts of each case will be necessary to accomplish and fair and reasonable outcome for the divorcing parties. That is why it is recommended that you speak with an attorney to discuss the specifics of your case.

ARTICLE BY Megan E. Smith of Stark & Stark
COPYRIGHT © 2015, STARK & STARK

Pay-to-Play Law on Gov. Christie’s Desk Poses Potential Threat to National Parties

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A little-noticed sentence in a bill sitting on New Jersey Governor Chris Christie’s desk could, if it becomes law, threaten to curtail the ability of national party committees to raise money from Wall Street and financial industry executives.  The Republican and Democratic Governors Associations, the Republican National Committee, the Democratic National Committee, and the federal congressional party committees could all be impacted.

New Jersey State Investment Council rules prevent the state pension fund from hiring an investment management firm if, within the two years prior, certain executives and professionals at the investment firm made a covered “political contribution or payment to a political party.”  The term “political party” means “any political party or political committee organized in the State” but does not include “a Federal or national campaign committee or a non-State political committee.”

The bill recently passed by the state legislature, however, would change that.  The bill—which we  flagged when it was making its way through the legislature—provides: “Regulations adopted by the council that address political contributions shall apply equally to contributions to any federal or national committee or a non-State political committee as to any other committee covered thereby.”

This poorly drafted provision could be read to apply only to political parties “organized in the State” such as the federal account of a New Jersey political party.  But it could also be read to apply to all federal or national party committees such as the RGA and the DNC.  Indeed, on passage, a sponsor statethat “the legislation would require the investment council to put in place a rule prohibiting firms it selects to invest pension funds from making contributions to any national political organization.”

The statute could therefore restrict federal and national political contributions in ways that reach further than any other pay-to-play law in the country.  Moreover the State Investment Council chairman suggested that the state would have to liquidate existing investments if executives from those investment firms made contributions to national party organizations, even if the contributions were permissible at the time.

Governor Christie has not said whether he plans to sign the bill.  If the law passes, the State Investment Council may promulgate regulations interpreting the law more narrowly.  And even if the law is interpreted to bar contributions to federal party committees and groups like the RGA and DGA, it seems highly vulnerable to challenge on First Amendment and federal preemption grounds.  But in the meantime, as we approach a Presidential election, the political contributions of many on Wall Street and in the financial industry could be chilled and fundraising for national party committees may take a hit.

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Paid Sick Leave Spreads Throughout New Jersey

Sheppard Mullin Law Firm

While the New Jersey Senate and Assembly continue to debate state-wide sick leave laws, four more New Jersey municipalities have enacted mandatory sick leave laws for private employers.  Effective January 2015, East Orange, Paterson, Irvington and Passaic will join Newark and Jersey City in requiring paid sick time for employees.

Under the recently passed ordinances of those municipalities, most employees of private employers who work a total of 80 hours or more in a covered municipality will accrue at least one hour of paid sick time for every 30 hours worked.  For employees who are exempt from the overtime requirements of the Fair Labor Standards Act, employers should assume a 40 hour workweek, unless the employee’s normal workweek is less than 40 hours.  If the exempt employee’s normal workweek is less than 40 hours, accrual may be based on the employee’s normal workweek.

Employees who work for employers with 10 or more employees in the municipality may accrue up to 40 hours of paid sick time in a calendar year, while employees who work for employers with less than 10 employees in the municipality may accrue up to 24 hours of paid sick time per calendar year, with some exceptions.  For example, home health care workers and food service workers may accrue up to 40 hours per calendar year regardless of the size of the employer.

Paid sick time accrual begins upon the effective date of the applicable ordinance and thereafter upon the date of hire.  However, accrued time may not be used until after the 90th calendar day of employment.  After 90 calendar days of employment, employees must be permitted to use accrued sick time for several reasons including:

  • To care for their own or a family member’s sickness, need for medical diagnosis, care or treatment of a sickness, or need for preventative medical care; or

  • Due to a forced closing of the employee’s place of business or to care for a child whose school or place of care has a forced closing, or to care for a family member when a health authority or a health care provider has determined that the family member’s exposure to a communicable disease would jeopardize the health of other’s in the community.

The ordinances allow an employer to require reasonable advance notice where the leave is foreseeable and as soon as practicable where it is not.  The ordinances also permit an employer to request that the employee confirm in writing that the time was used for a permissible purpose, and where the employee has been out for three or more consecutive days, the employer may request reasonable supporting documentation from a health care professional.  An employer may not, however, require that the documentation explain the nature of the illness.  To the extent any health information is disclosed, such information must be treated as confidential and only disclosed to the affected employee or with the affected employee’s permission.

Once accrued, up to 40 hours of paid sick time may be carried over into the next calendar year.  An employer may, however, elect to pay its employees for unused sick time at the end of the calendar year in lieu of carry over.  Note that even where an employee does carry over accrued paid sick time, an employer is not required to permit the employee to take more than 40 hours of paid sick time in a calendar year.  The “calendar year” may be defined by the employer as any regular consecutive 12-month period.

Employers who already have paid time off policies that provide sufficient paid time to satisfy the total annual accrual requirements of the applicable ordinance, and permit such paid time off to be used for the same purposes identified in the ordinance, are not required to provide additional paid time.  Employers should be mindful, however, that if their current policy only provides paid time off to full-time employees, either their policy should be modified to extend such paid time off to all employees who work more than 80 hours in a covered municipality or a separate policy should be implemented for part-time and temporary employees that satisfies the minimum requirements of any applicable ordinance.

While none of the ordinances require an employer to pay employees for accrued but unused sick time upon separation, if an employee is rehired within six months, any accrued but unused sick time must be reinstated.  Likewise, if an employee is transferred within the municipality the employee retains any unused sick time.

Each of the ordinances provide expansive protections against retaliation and require employers to provide individual employees with notice of their rights under the law.  Notice to individual employees must be in English and in the employee’s primary language, provided the employee’s primary language is the primary language of at least 10% of the employer’s workforce.  Employers are also required to display a poster in a conspicuous and accessible place in each covered business establishment.  In addition, employers must maintain records documenting their compliance with the applicable ordinance.

Failure to comply with these ordinances may result in fines, civil penalties, or a private action by a current or former employee.  As such, employers in the covered municipalities should familiarize themselves with the applicable ordinances and take steps to ensure compliance.

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‘Jersey Shore’ Star Pleads Not Guilty to Tax Fraud

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C’mon, admit it: you’ve watched at least a few minutes of MTV’s “Jersey Shore.” Okay, fine, not all of us have let our curiosity get the best of us, but for those who have, one of the main characters of the series is currently making headlines for a tax fraud case.Mike Sorrentino, whose nickname on the show was “The Situation,” is currently facing charges that he and his brother failed to pay $8.9 million of taxes between 2010 and 2012.

According to the IRS, the brothers filed false income tax returns, failing to report personal and business income and claiming false business deductions. Those earnings were largely from public appearances for which potentially thousands of dollars were paid. Authorities also accused Sorrentino of altering accounting records or having them altered after a grand jury issued a subpoena.

Sorrentino denies the allegations and has pleaded not guilty to the charges. His attorney made a public statement last month that Sorrentino “denies that he criminally violated the tax laws.” In effect this means that he is claiming the violations were due to negligence rather than fraud.

The difference between tax negligence and tax fraud is pretty significant, not only in terms of the mental state of the taxpayer at the time the filing was made but also in terms of the penalties attached. Penalties for fraud, of course, are much more significant.

While the IRS usually has a pretty good idea of when an individual has committed fraud or negligence, this is not always the case. Those who have been wrongfully accused of tax fraud need to work with an experienced attorney to ensure their rights are protected.

New Jersey Employers: $8.38 Minimum Wage Effective January 1

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As you may remember, in November 2013, voters approved an amendment to the New Jersey Constitution increasing the state minimum wage to $8.25.  The amendment also created annual cost of living increases, tied to the Consumer Price Index, to be added to the minimum wage each year.  The increases are calculated each September and take effect on the following January.  Therefore, effective January 1, 2015, New Jersey minimum wage will rise from $8.25 to $8.38.  Employers must ensure that all work performed by employees on and after January 1, 2015 is compensated at the increased rate.  Employers should be especially mindful of this change if January 1 falls in the middle of a pay period.

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