The National Law Forum

January 6, 2014 Deadline For Employers To Comply With New Jersey Gender Equity Notice And Posting Requirements

Beginning Monday, January 6, 2014, employers with fifty (50) or more employees are required to comply with the New Jersey Gender Equity posting and notice requirements. The New Jersey law, passed in September of 2012, requires that all covered employers (1) post a notice regarding gender equity in a conspicuous place accessible by all employees, (2) provide a copy of the notice to all employees annually, and (3) receive a signed acknowledgment from the employees each year.

Posting

The New Jersey Department of Labor has issued a poster which is now available here in English and here in Spanish. Employers must post this notice in a conspicuous place at each New Jersey work location by January 6, 2014. In the event that a covered employer has an internet site or intranet site for exclusive use by its employees, and all employees have access to the site, the employer may post the notice on the website to satisfy the posting requirement.

Notice

The law requires that every employee receive a copy of the notice annually. For existing employees, the notice must be received by February 5, 2014. For all employees hired after January 6, 2014, the notice must be provided to the employee at the time of hire. Each year thereafter, all new hires must be provided with a notice at the time of hire and all other employees must receive the notice by December 31. Employees must also be provided a copy upon request. The employer may provide the notice in print, through email, or on the company internet/intranet if (1) the site is for the exclusive use of the employees, (2) can be accessed by all employees, and (3) the employer notifies the employees that the notice has been posted on the internet/intranet.

Acknowledgment

Within thirty (30) days of issuing the annual notice, the employee must acknowledge receipt and understanding of the notice. The acknowledgment can be in writing or by electronic verification. Employers must ensure that they follow-up with employees to confirm that the employee has received and understands the requirements each time the notice is issued.

Failure to comply with these requirements can result in monetary fines and other penalties.

Article by:

Saranne E. Weimer

Of:

Giordano, Halleran & Ciesla, P.C.

American Conference Institute National Forum on Securities Litigation & Enforcement

The National Law Review is pleased to bring you information about the upcoming American Conference Institute National Forum on Securities Litigation & Enforcement.

When

Thursday, February 27 – Friday, February 28 ,2014

Where

Washington, D.C.

ACI’s 3rd National Advanced Forum on Securities Litigation and Enforcement, this time in Washington, DC, is the only event in the industry where experienced in-house counsel, leading litigators, renowned jurists, and regulatory and enforcement ofﬁcials from federal and state agencies will assemble in our nation’s capital to provide the highest level insights on the most current developments in the ﬁeld.

Now, more than ever, lenders/issuers, ofﬁcers and directors, underwriters, auditors, investment managers and broker-dealers need to know how to prepare for and respond to litigation, and how to deal with regulation and enforcement initiatives from various federal and state agencies.

In response, ACI has developed the 3rd installment of its lauded Securities Litigation and Enforcement conference, which will provide practitioners with the knowledge and expert strategies that they need in order to prepare for and defend against the newest claims and claimants.

Join us in Washington, DC, and hear from a highly regarded faculty featuring in-house counsel from the top ﬁnancial services companies and leading outside counsel from law ﬁrms that excel in securities litigation, renowned judges, and key government bodies, including SEC, FINRA, PCAOB, U.S. Attorney’s Ofﬁces (EDNY & SDNY), and various state securities departments.

Federal Court Prohibits Union From Striking To Prevent Sale Of Business To Non-Union Employer

Last week a New York federal district court granted a preliminary injunction against the Teamsters union after it threatened to go on strike against Will Poultry, Inc. if the company proceeded to sell its business to a non-union purchaser who had no plans of assuming the parties’ collective bargaining agreement (CBA).The parties’ CBA did not have a “successor clause” or any other language obligating a purchaser to assume or otherwise recognize the Teamsters union upon a sale. When the Teamsters demanded that Will Poultry modify the CBA to include a “successor clause” in advance of the sale or face a strike, the company filed for an injunction in federal court.

teamsters union litigation

While the CBA did not contain an express “no strike clause,” it did have a grievance/arbitration provision, and the court held that constituted an “implied” no strike clause. Accordingly, the court issued an order prohibiting the union from striking in violation of the implied no strike clause, which almost certainly would have killed the pending sale.

While the New York federal court correctly found an implied no strike clause in this case, this case should serve as a reminder that you should always review your CBA in advance of successor contract negotiations to make sure any language issues (like the lack of a no strike clause) can be addressed.

The Teamsters have filed for an appeal of the decision, but a copy of the district court’s order can be found here.

Article by:

David J. Pryzbylski

Of:

Barnes & Thornburg LLP

Center Medicare and Medicaid Services (CMS), Office of Inspector General (OIG) Extend Electronic Health Records (EHR) Stark Law Exception, Anti-Kickback Safe Harbor Through 2021

On December 27, 2013, the Centers for Medicare and Medicaid Services (CMS) and the Office of Inspector General (OIG) of the Department of Health and Human Services (HHS) will publish final rules that extend through December 31, 2021 the existing Stark Law Exception (42 CFR 411.357(w)) and Anti-Kickback Statute Safe Harbor (42 CFR 1001.952(y)) applicable to the donation of electronic health records (EHR) items and services. December 31, 2021 is the last year of the Medicaid Meaningful Use incentive payments.

In the Final Rule, CMS and OIG also:

Update the provisions under which EHR software is deemed interoperable;
Remove the requirement relating to e-prescribing from the Exception and Safe Harbor
Limit the scope of protected donors to exclude laboratory companies; and
Clarify the condition that prohibits a donor from limiting or restricting the use, compatibility or interoperability of donated EMR items and services.

Interoperability

The final rules require the donated EHR technology to be “interoperable” as of the date it is donated. Such technology will be deemed to be interoperable if it has been certified by a certification body authorized by the Office of the National Coordinator for Health Information Technology (ONC) to an edition of the EHR certification criteria identified in the then-applicable 45 CFR part 170 (i.e., the HITECH Act’s definition of “Certified EHR”). This will require donated software to be “as interoperable as feasible given the prevailing state of technology at the time they are provided to the recipient.” For example, in 2013, the HITECH Act’s definition of “Certified EHR” permits certification pursuant to either the 2011 or 2014 editions of the EHR certification requirements; in 2014, the HITECH Act requires certification pursuant to the 2014 edition only.

E-prescribing

CMS and OIG have concluded that there are sufficient alternative policies driving the adoption of electronic prescribing such that it need not be included in the Exception and Safe Harbor. Thus, under the final rules, an EHR is no longer required to have electronic prescribing capability in order to be subsidized.

Permissible Donors

In the proposed rules, CMS and OIG identified concerns of potentially abusive practices stemming from the donation of EHR software that seemed to provide for the interoperable exchange of information, but instead led to data and referral “lock-in” between the donor and the referral source. OIG and CMS specifically referred to EHR items and services donated by ancillary service providers and suppliers, i.e., those do not have a direct primary patient care relationship, as subject to this concern. In the proposed rules, CMS and OIG sought comments on whether to limit the list of permissible donors of EHR items and services to hospitals, group practices, Prescription Drug Plan sponsors and Medicare Advantage organizations – or others with front-line patient care responsibilities. In light of the comments received, in the final rules, CMS and OIG specifically exclude laboratories from the list of permissible donors. Otherwise, the universe of protected donors remains the same.

Restrictions

In the proposed rules, CMS and OIG also requested comments on “new and modified conditions” that would prevent EHR donations from becoming a method for locking-in referrals (generally, to the donor), and instead encourage the free exchange of data. CMS and OIG do not adopt any such additional conditions in the final rules, but clarify that neither a donor “nor any person on the donor’s behalf may take any action to limit or restrict the use, compatibility or interoperability of the donated items or services with other electronic prescribing or other EHR systems, including but not limited to health information technology applications, products or services.” This expanded language is meant to clarify that neither donors nor recipients may limit interoperability and that donated EHRs must be interoperable both with other EHRs and with health information exchanges and other forms of technology.

To view the CMS final rule, click here. To view the OIG final rule, click here.

Article by:

Jennifer R. Breuer

Jeffrey T. Ganiban

Of:

Drinker Biddle & Reath LLP

Keeping Third Party Communications Protected by the Attorney-Client Privileged

A recent Pennsylvania federal court decision highlights the difficulty in keeping third party communications privileged. (King Drug Co. of Florence, Inc. v. Cephalon, Inc., No. 06-CV-1797, 2013 WL 4836752 (E.D. Pa. Sept. 11, 2013)). In Cephalon, the court found third party communications privileged because the third party performed a role for Cephalon substantially identical to that of Cephalon employees. The Federal Trade Commission (FTC) had sought an order requiring Cephalon to produce documents shared with or created by its third party consultants in connection with work the consultants performed for Cephalon that Cephalon withheld or redacted based upon theattorney-client privilege.

In keeping the documents protected, the court followed other courts and adopted the broader “functional equivalent” approach to third party communications. According to the court, this approach “reflects the reality that corporations increasingly conduct their business not merely through regular employees but also through a variety of independent contractors retained for specific purposes.” Cephalon, 2013 WL 4836752, at *7. The broader “functional equivalent” analysis looks at the following factors. First, third party consultants must perform a role substantially identical to that of an employee. For example, in Cephalon, the consultants worked closely with employees by providing managerial support, strategic advice, and participating in making preservations to senior management. The consultants also had dedicated office space and were subject to confidentiality agreements. Second, the documents or communications must be kept confidential. And, third, the documents or communications must be made for the purpose of providing or obtaining legal advice.

However, not all courts agree with this broader approach. Other courts have adopted a narrower “functional equivalent” test. The main differences with the narrower approach are that consultants must be incorporated into the staff to perform a corporate function that is necessary in the content of actual or anticipated litigation, and possess information needed by attorneys in rendering legal advice. See In re Bristol-Myers Squibb Sec. Litig., No. 00-1990, 2003 WL 25962198, at *4 (D.N.J. June 25, 2003).

The varying scope of the functional equivalent test highlights that the most important factor in keeping third party communications privileged is to know your jurisdiction’s viewpoint. Other considerations include making certain that consultants are the functional equivalent of employees, and that the communications are kept confidential and created for the purpose of obtaining or providing legal advice.

Article by:

Karne O. Newburn

Of:

McDermott Will & Emery

Will New Jersey Go “Ban the Box” and Beyond? New Jersey Takes Step to Prohibit Employers From Asking About a Job Applicant’s Criminal History

Recently, in a 6-3 vote, New Jersey’s Assembly Labor Committee advanced a bill (A-3837), known as the Opportunity to Compete Act, that would prohibit New Jersey employers with 15 or more employees from asking candidates about their criminal history on employment applications, and from conducting criminal background checks on applicants prior to a conditional job offer. If passed, this legislation would become one of the toughest “ban the box” measures in the nation (derived from the ubiquitous check box on employment applications inquiring whether an applicant has a criminal record), and would place several new administrative burdens on employers. New Jersey would join the 64 states, counties and cities (including Newark, New Jersey) that have already enacted laws aimed at benefiting job seekers with a criminal history. And many states (including New York) prohibit employers from disqualifying an applicant based on a conviction absent a clear nexus between the nature of the conviction and the job sought.

Under the proposed legislation, only after the employer determines the candidate is qualified and provides a conditional job offer, may it inquire about and consider the individual’s criminal history. Then, before the employer may look into the candidate’s criminal history, it must first provide the candidate with a written notice of the inquiry (along with a “Notice of Rights) and obtain the candidate’s consent.

The bill authorizes employers to consider in their employment decision making process convictions for certain serious crimes regardless of when the crime occurred. These crimes include murder or attempted murder, arson, a sex offense for which the offender served time in State prison and is required to register as a sex offender, robbery, kidnapping, human trafficking, possession of weapons, burglary, aggravated assault and terrorism. Separately, employers may only consider other crimes of the 1st through 4th degree if the crime was committed within the previous 10 years. Employers may also consider convictions for disorderly persons offenses that occurred within the last 5 years and pending criminal charges until the case is dismissed. The bill further provides that if any of the candidate’s criminal history is subject to consideration by employers due to the fact that it occurred within 10 years for crimes of the 1st through 4th degree, or 5 years for disorderly persons offenses, then the employer may also consider any prior criminal history, regardless of when it occurred.

Under the bill, when making an employment decision, employers may not consider or require a candidate to disclose or reveal any arrest or criminal accusation made against the candidate which is not then pending or which did not result in a conviction. Records which have been erased or expunged, records of an executive pardon or legally nullified records may not be considered by employers, nor may the employer consider an adjudication of delinquency of a juvenile, any violation of a municipal ordinance or any record which has been sealed.

The proposed legislation requires employers to make a good faith effort to discuss with the candidate any questions or concerns related to the candidate’s criminal history and provide the candidate with an opportunity to explain and contextualize any crime or offense, provide evidence of rehabilitation, and rebut any inaccuracies in the criminal history.

In deciding whether to hire a candidate, employers must consider the results of any criminal history inquiry in combination with factors such as: (1) information provided about the degree of the candidate’s rehabilitation and good conduct; (2) information provided about the accuracy of the criminal record; (3) the amount of time that has elapsed since the conviction or release from custody; (4) the nature and circumstances surrounding the crime(s); and (5) the duties and settings of the job. This last factor—job-relatedness—is critical, as employers may not disqualify a candidate if the nature of his or her conviction bears no relationship to the job sought. The reasonable consideration of these factors must be documented by employers on a “Criminal Record Consideration Form.”

If an employer makes an adverse employment decision, including rescinding a job offer, after a discussion of a candidate’s criminal history, the employer must provide the candidate in one package by registered mail: (1) written notification of the adverse employment decision; (2) a copy of the results of the criminal history inquiry; and (3) a completed copy of the Criminal Record Consideration Form.

A candidate who received an adverse employment decision has 10 business days after receipt of this written information to provide evidence to the employer related to the accuracy and relevance of the results of the criminal history inquiry. Employers may, but are not required to, hold the position open for the candidate. Employers who uphold an adverse employment decision after considering any additional information provided by the candidate are required to provide to the candidate a written notice of the final decision within 45 days of receipt of the additional information.

There is good news for employers here: the bill does not provide applicants with the ability to sue them in court for a violation of the law. Instead, the applicant would have to file a complaint with the New Jersey’s Division on Civil Rights (“DCR”) in the Department of Law and Public Safety, and the DCR may impose civil fines ranging from $500 to $7,500 depending on the number of employees the employer has and whether the employer has committed previous violations. Additionally, as noted above, the bill does not apply to smaller employers with under 15 employees. Moreover, employers can take solace in that the bill would give employers the highest protection against negligent hiring/retention suits of any state in the nation in the form of a “grossly negligent” standard, meaning that there must be a finding that the employer consciously acted with a reckless disregard for the safety of others in its hiring decision.

There is no certainty that the proposed Opportunity to Compete Act will be passed into law in its current form or any other form for that matter. Governor Chris Christie, who could very well exercise his veto power, has not indicated whether or not he supports the bill. Needless to say, we will closely monitor this legislation.

Article by:

David M. Katz

Of:

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Dealing with Personal Information at the Water’s Edge… Re: U.S. Safe Harbor Program

Privacy and data security issues and concerns do not stop at the water’s edge. Companies needing to share personal information, even when the sharing will take place inside the same “company,” frequently run into challenges when that sharing takes place across national borders. In some ways, the obstacles created by the matrix of federal and state data privacy and security laws in the U.S. are dwarfed by the matrix that exists internationally. Most countries regulate to some degree the handling of data, from access, to processing, to disclosure and destruction. And, the law continues to develop rapidly, sometimes due to unexpected events. Take, for example, the U.S. Safe Harbor programthat was designed to facilitate the transfer of personal data of individuals in the European Union (EU) to the United States. Because the EU believes that the law in some countries, including the U.S., fails to provide “adequate safeguards,” the general rule is that personal data of EU persons cannot be sent to the U.S. unless an exception applies. One exception is based on a negotiated deal between the EU and the U.S., commonly known as the U.S. Safe Harbor, a program which currently is in some jeopardy due to the recent reports of NSA monitoring, Snowden, etc.

data information EU European Union world

Currently, to meet the Safe Harbor, a company must take certain steps, including (i) appointing a privacy ombudsman; (ii) reviewing and auditing data privacy practices; (iii) establishing a data privacy policy that addresses the following principles: notice, choice, onward transfer of data, security, integrity, access and enforcement; (iv) implementing privacy and enforcement procedures; (v) obtaining consents and creating inventory of consents for certain disclosures; and (vi) self-certifying compliance to the U.S. Department of Commerce.

A recent statement from Viviane Reding, European Commissioner for Justice, Fundamental Rights and Citizenship, quoted in The Guardian, October 17, 2013, signals some changes may be in store for the Safe Harbor:

The Safe Harbour may not be so safe after all. It could be a loophole because it allows data transfers from EU to US companies, although US data protection standards are lower than our European ones,” said Reding. “Safe Harbour is based on self-regulation and codes of conduct. In the light of the recent revelations, I am not convinced that relying on codes of conduct and self-regulation that are not policed in a strict manner offer the best way of protecting our citizens.

At the same time, the EU continues to update and strengthen its protections for personal data. Companies that operate globally need to be sensitive to not only complying with the laws specific to activities within a jurisdiction, but also to activities between jurisdictions. Common business decisions such as deciding where data will be stored, setting up global databases for employees medical, personnel and other information, arranging for enterprise-wide employee benefits or monitoring programs, can face significant obstacles relating to the interplay of the data privacy and security laws of the countries involved.

Article by:

Joseph J. Lazzarotti

By:

Jackson Lewis P.C.

The National Law Forum

January 6, 2014 Deadline For Employers To Comply With New Jersey Gender Equity Notice And Posting Requirements

Posting

Notice

Acknowledgment

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American Conference Institute National Forum on Securities Litigation & Enforcement

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Federal Court Prohibits Union From Striking To Prevent Sale Of Business To Non-Union Employer

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Center Medicare and Medicaid Services (CMS), Office of Inspector General (OIG) Extend Electronic Health Records (EHR) Stark Law Exception, Anti-Kickback Safe Harbor Through 2021

Interoperability

E-prescribing

Permissible Donors

Restrictions

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Keeping Third Party Communications Protected by the Attorney-Client Privileged

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Will New Jersey Go “Ban the Box” and Beyond? New Jersey Takes Step to Prohibit Employers From Asking About a Job Applicant’s Criminal History

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Dealing with Personal Information at the Water’s Edge… Re: U.S. Safe Harbor Program

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Happy New Year from the National Law Review!

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Posting

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Acknowledgment

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Interoperability

E-prescribing

Permissible Donors

Restrictions

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Infographic about things that improve a person’s Google Ranking like LinkedIn, Facebook, Twitter and WordPress Blogs.

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