Guidance on the Education Stabilization Fund and its Implications

To Our School Board Community:
On March 27, 2020, the President signed H.R. 748, the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act. The Act, among other things, establishes funding for the Education Stabilization Fund, whereby the Secretary will issue grants to each State, which may be used to provide emergency support to local educational agencies. Upon receipt of the funds, the State will distribute them to the local educational agencies deemed to have been most significantly impacted by coronavirus in order to support their ability to continue to provide educational services to their students and to support the on-going functionality of the local educational agency. Of these funds, the Secretary shall make elementary and secondary school emergency relief grants to each State educational agency with an approved application.
An elementary or secondary school that receives funds under the Education Stabilization Fund may use the funds for any of the following:
  1. Any activity authorized by the Elementary and Secondary Education Act of 1965;
  2. Coordination of preparedness and response efforts of local educational agencies with State and local public health departments, and other relevant agencies, to improve coordinated responses among such entities to prevent, prepare for, and respond to coronavirus;
  3. Providing principals and others school leaders with the resources necessary to address the needs of their individual schools;
  4. Activities to address the unique needs of low-income children or students, children with disabilities, English learners, racial and ethnic minorities, students experiencing homelessness, and foster care youth, including how outreach and service delivery will meet the needs of each population;
  5. Developing and implementing procedures and systems to improve the preparedness and response efforts of local educational agencies;
  6. Training and professional development for staff of the local educational agency on sanitation and minimizing the spread of infectious diseases;
  7. Purchasing supplies to sanitize and clean the facilities of a local educational agency, including buildings operated by such agency;
  8. Planning for and coordinating during long-term closures, including for how to provide meals to eligible students, how to provide technology for online learning to all students, how to provide guidance for carrying out requirements under the Individuals with Disabilities Education Act and how to ensure other educational services can continue to be provided consistent with all Federal, State, and local requirements;
  9. Purchasing educational technology (including hardware, software, and connectivity) for students who are served by the local educational agency that aids in regular and substantive educational interaction between students and their classroom instructors, including low-income students and students with disabilities, which may include assistive technology or adaptive equipment;
  10. Providing mental health services and supports;
  11. Planning and implementing activities related to summer learning and supplemental after school programs, including providing classroom instruction or online learning during the summer months and addressing the needs of low-income students, students with disabilities, English learners, migrant students, students experiencing homelessness, and children in foster care;
  12. Other activities that are necessary to maintain the operation of and continuity of services in local educational agencies and continuing to employ existing staff of the local educational agency.
Notably, the Act provides a caveat for local educational agencies who receive funds under the Education Stabilization Fund. Specifically, the Act states:
A local education agency, State, institution of higher education, or other entity that receives funds under “Education Stabilization Fund”, shall to the greatest extent practicable, continue to pay its employees and contractors during the period of any disruptions or closures related to coronavirus.
We believe that this caveat only applies to districts that receive funds under the Education Stabilization Fund. That said, we caution any districts that desire or intend to receive resources under the Education Stabilization Fund to expect to have to pay all employees and contractors during the mandated school closures. This will undoubtedly include contractors who operate school bus services and the like.
This message is not intended to substitute for our legal advice to our clients based on their specific needs or requests. In addition, our guidance is subject to and can be superseded by new laws, rules, regulations, or orders. Moreover, some directives from the Federal and State authorities can appear, and can be, contradictory or in conflict so please contact us for assistance.

Forward Thinking: Planning to get back to business after COVID-19

Russell L. Lichtenstein, Esquire

Most of us are wondering what the “new normal” will be once the various stay-at-home orders have been lifted and we all get back into the workplace. It is never too early to start planning the restart of our economy by the reopening of our business locations.

There are a number of issues that employers will encounter as we begin to ramp our businesses back up.

While the law and regulations are constantly evolving in light of the unique and unprecedented environment that we find ourselves in, there are certain issues that we can address even at this early stage. The following are just a few questions and answers which hopefully will give employers some guidance for getting back to the “new normal.”

Q. Can an employer require returning employees to present medical documentation that they are free from COVID-19?
A. Yes. Such an inquiry is permitted under the law, and specifically under the ADA, because this inquiry is not disability related. As a practical matter, however, the medical community may simply not be able, during and immediately following the COVID-19 outbreak, to provide these “fitness for duty” certifications. Employers should begin to consider, at this early juncture, if such “fitness for duty” documentation will be required and, if so, how logistically to arrange for their workforce to obtain such examinations. These “fitness for duty” examinations should be limited to issues that surround COVID-19 and cannot be used for any other disability-related inquiries which would otherwise be unlawful under the ADA and other employee protection statutes.

Q. Can an employer take daily temperature readings of employees returning to the workplace following the COVID-19 pandemic?
A. Yes. The EEOC recently issued guidance on this point. While typically taking an employee’s temperature would be considered to be a medical examination and prohibited under the ADA and other employee protection statutes, in light of the community spread of COVID-19, employers are specifically permitted to measure the temperature of employees. Health professionals, however, point out that some people with COVID-19 do not register a fever. From a practical standpoint, employers should be equipped, should they choose to take the temperature of employees, to do this in a non-invasive efficient manner. The use of infrared forehead thermometer “gun” type devices is both practical, efficient and non-invasive. Employers wishing to take the temperature of employees following the pandemic should immediately make arrangements to acquire those items.

Q. Once businesses are reopened, can an employer ask an employee who reports to work feeling ill to leave the workplace?
A. Yes. The Center for Disease Control (“CDC”) states that employees who become ill with symptoms of influenza-like illness, including COVID-19, during a pandemic should leave the workplace. Advising employees who present with flu-like symptoms to go home is not a disability-related action. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat, which is clearly the case with COVID-19.

Q. Related to the question above, how much information may an employer request from employees who report to work feeling ill or who call in sick?
A. An employer may ask such employees if they are experiencing COVID-19 symptoms. Employers must maintain all information about employee illness as confidential medical records in compliance with various Federal laws including the ADA.

Q. Upon returning to work, can an employer require employees to adopt infection control practices such as regular hand washing in the workplace?
A. Yes. According to the EEOC, requiring infection control practices such as regular hand washing, coughing and sneezing etiquette and proper tissue usage and disposal is permitted. Further, these actions are encouraged by the CDC.

The Employment Law Practice Group at Cooper Levenson is fully operational and ready to assist you in these very difficult times. Please reach out to Practice Group Chair Russell Lichtenstein at (609) 572-7676 or rlichtenstein@cooperlevenson.com in order to schedule a consultation on any employment related issues which you may be encountering during these most difficult times.

Stay safe and healthy.

 Our e-mails about recent developments are not intended to substitute for our legal advice to our clients based on your specific needs or requests. In addition, our guidance is subject to, and can be superseded by new laws, rules, regulations, or orders, particularly during the current public health where regulations and directives can be issued on a daily if not hourly basis. Moreover, some directives from the Federal and State authorities can appear, and can be, contradictory or in conflict, so please contact us for assistance.

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Small Business Bankruptcies And Chapter 13s On Steroids to Confront Virus

April 1, 2020
Eric A. Browndorf, Esq.

In February The Small Business Bankruptcy Act was effective. As set forth in our prior article “Chapter 12 Bankruptcy for Family Farmers and Family Fishermen”, it essentially made all the benefits of a Chapter 11 restructurings available for small businesses in an expedited, streamlined process at a fraction of the cost. Under the original small business act a small business was ineligible if it had debts in excess of approximately 2.9 million dollars. As a direct consequences of the challenges presented by the Virus eligible small businesses can now have as much as 7.5 million dollars in debt. 

The Virus has caused a significant and beneficial change to Chapter 13 as well. Generally, a Chapter 13, ordinarily an individual or small business, restructured its obligations and gets to retain equity in property and other assets in exchange for making monthly payments creditors in their Chapter 13 Plans over 36-60 months. 

In order to address the income issues created by the Virus, at least for a temporary matter, existing Chapter 13 Debtors can extend their repayment obligations for as much as 84 months and new individuals that file Chapter 13 can stretch the repayments over 84 months. 

These changes, taken together, significantly and substantially increase the strategic options available for individuals and small businesses in financial difficulty. Irrespective of the position taken by ones creditors, individuals and small businesses can retain their assets without expending hundreds of thousands of dollars on professionals or spending years litigating in the bankruptcy court. 

Eric Browndorf  is a Partner and Chairman of the Bankruptcy & Financial Restructuring practice group and Co-Chairman of the Small Business Advice group. Eric may be reached at 609-572-7538 or via e-mail at ebrowndorf@cooperlevenson.com.

Families First Coronavirus Response Act Effective April 1, 2020

April 1, 2020
Russell L. Lichtenstein, Esq.

Today (April 1, 2020), the Federal Families First Coronavirus Response Act (“FFCRA”) goes into effect.  The FFCRA provides certain benefits for employees directly impacted by illnesses related to the coronavirus and employees who have been required to care for a child as a result of the closure of a school or childcare facility or the unavailability of a childcare provider.

The FFCRA provides for two weeks (80 hours) of paid leave in connection with certain circumstances related to the coronavirus outbreak.  Further, the FFCRA provides different benefits depending upon whether or not the leave is required as a result of direct health issues or in connection with the care of a child who has been displaced as a result of the closure of a school or childcare facility or provider.

With some exceptions, employers with less than 500 employees are covered by the FFCRA.  The FFCRA provides businesses with less than 50 employees the ability to apply to the U.S. Department of Labor for an exemption from the provisions of the Act if providing the paid leave would “jeopardize the viability of the business.”   Moreover, all employees of any employer covered are eligible for two weeks of paid sick time for specified reasons related to COVID-19. Additionally, employees employed for at least 30 days are eligible for up to an additional ten weeks of paid family leave to care for a child under circumstances related to COVID-19.

Under the FFCRA, an employee will be qualified for paid sick leave if the employee is unable to work or telework due to a need for leave under the following circumstances:

  1. The employee is subject to a Federal, State or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a healthcare provider to self-quarantine related to COVID-19;
  3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis with a medical professional; 
  4. The employee is caring for an individual subject to an order related to a Federal, State or local quarantine or isolation order or is self-quarantined;
  5. The employee is caring for a child whose school or place of care is closed, or childcare provider unavailable, for reasons related to COVID-19; or
  6. An employee is experiencing any other substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

In addition to the above, under the FFCRA, an employee qualifies for expanded paid family leave if the employee is caring for a child whose place of care is closed, or childcare provider unavailable, for reasons relating to COVID-19.

There is a significant distinction between the concept of a “quarantine or isolation order” and the current stay-at-home orders issued by many jurisdictions throughout the United States.  “Quarantine” is defined in the Code of Federal Regulations as “the separation of an individual or group reasonably believed to have been exposed to a quarantinable communicable disease, but who are not yet ill, from others who have not been so exposed, to prevent the possible spread of the quarantinable communicable disease.”  “Isolation,” on the other hand, is defined as “the separation of an individual or group reasonably believed to be infected with a quarantinable communicable disease from those who are healthy to prevent the spread of the quarantinable communicable disease.”

Individuals who qualify for paid leave under the FFCRA  are entitled to two weeks (up to 80 hours) of paid sick leave.  The amount of the sick leave and certain limitations change depending upon the reason for the leave.  For items 1 through 3, referenced above, an employee is entitled to paid sick leave at the employee’s regular rate of pay, or the applicable minimum wage, whichever is higher, up to $511 per day or $5,110 in the aggregate over a two week period.

For leave for reasons #4 and #6 referenced above, an employee taking leave is entitled to be paid at 2/3 of their regular rates or 2/3 of the applicable minimum wage, whichever is higher, up to a maximum of $200 per day and $2,000 in the aggregate over a two week period.

Additionally, the FFCRA provides for expanded benefits in connection with caring for a child whose school or place of care is closed or childcare provider is unavailable for reasons related to COVID-19 (reason #5, above).  Specifically, the duration of the paid leave under these circumstances is extended for up to 12 weeks. Specifically, for the reasons referenced in reason #5, an employee would be entitled to be paid at the 2/3 calculation referenced above up to a maximum of $200 per day and $12,000 in the aggregate.

While the payments referenced above are paid by the employer, the FFCRA provides the employer with a tax credit for qualified FFCRA sick leave and family leave wages.  This fully refundable tax credit is equal to the full amount of the required paid family and medical leave under the FFCRA. In addition, the tax credit also includes an eligible employer’s share of Medicare tax imposed on those wages as well as the  cost incurred in maintaining health insurance coverage for the employee during the family leave period. Further, the employer is not subject to the employer portion of Social Security tax imposed on FFCRA paid sick and family leave wages.

The Act also requires the posting of a notice concerning employee rights under the Families First Coronavirus Response Act.  A link to the U.S. Department of Labor Wage and Hour Division poster is embedded with this communication.  

The Employment Law Practice Group at Cooper Levenson is fully operational and ready to assist you in these very difficult times.  Please reach out to Practice Group Chair Russell Lichtenstein at (609) 572-7676 or rlichtenstein@cooperlevenson.com in order to schedule a consultation on any employment related issues which you may be encountering during these most difficult times.

Please click HERE for the FFCRA poster on Employee Rights.

Options Under Chapter 12 Bankruptcy Law for Farmers and Fishermen With Economic Downturn Losses

April 1, 2020
Kevin J. Thornton, Esquire | Eric A. Browndorf, Esquire 

Chapter 12 of the Bankruptcy Code is not well-known and is not used as frequently as are Chapter 7 and Chapter 11. Chapter 12 Bankruptcies are available exclusively to “family farmers”, “family fishermen”, and sometimes to their business entities too. It is similar to Chapter 13 Bankruptcy proceedings which are typically filed by families and consumers who want to reorganize their debt. 

Filing bankruptcy under Chapter 12 provides farmers and fishermen  who have suffered substantial financial losses and are burdened by crushing debt, the opportunity to avoid the loss of their businesses and liquidation. In most cases, they are permitted to keep their businesses, farms, boats, and valuable permits and to continue their way of life, earn income, and pay their debts over a substantial period of time  (usually between three and five years). Chapter 12 bankruptcies provide hard-working farmers and fishermen the opportunity to retain their family business and assets which were often created and preserved by decades of family effort and commitment.

Congress enacted Chapter 12 as a comprehensive restructuring option for farmers and fishermen in financial trouble to keep their businesses by reducing debt and paying the reduced amounts over time.

All farmers and fishermen must be aware of the Chapter 12 option, even if they never actually file it so they understand and use its considerable leverage when negotiating with creditors. Invoking Chapter 12 tends to level the playing field, particularly once the bank or other creditors understand that this strategic option does not require their consent to file.

To be eligible to file under Chapter 12, the total debt of the family farmer  must not exceed $10,000,000.00 and the debt of the family fisherman must not exceed $1,924,550.00. Family farmers must earn at least 50% of their income from farming operations and family fishermen must earn at least 80% of their income from commercial fishing operations 

Certain farming and fishing corporations and partnerships may be eligible for relief under Chapter 12 if they meet several criteria on the date the petition is filed. These include:  (i) more than one-half of the outstanding stock or equity in the corporation or partnership must be owned by one family or by one family and its relatives; (ii) the family or the family and its relatives must conduct a farming or commercial fishing operation;  and (iii) more than 80% of the value of the corporate or partnership assets must be related to the farming or fishing operation. 

A Chapter 12 case is initiated by filing a petition with the Bankruptcy Court, which includes: (i) schedules of assets and liabilities; (ii) a schedule of current income and expenditures; (iii) a schedule of executory contracts and unexpired leases; and (iv) a statement of financial affairs.

Filing a petition under Chapter 12 automatically stays (stops) almost all collection actions against the debtor and the debtor’s property. The automatic stay arises upon filing, no judicial action is required. When an automatic stay is in place, creditors generally cannot initiate or continue lawsuits, wage garnishments, or make any telephonic or written demands for payment.

When a Chapter 12 petition is filed, a Trustee is appointed to administer the case. The Trustee analyzes the case and acts as a disbursing agent. The trustee collects payments from the debtor and makes distributions to the creditors. 

The core of a Chapter 12 Bankruptcy is the “Plan of Repayment”. The Plan is submitted to the Court for its approval. When approved, the Plan establishes payments of fixed amounts from the farmer or the fisherman to the Trustee. The Trustee then pays the funds to creditors in accordance with the terms of the Plan. Of necessity, creditors will almost always receive less than full payment on their claims. 

The Bankruptcy Judge is responsible for deciding whether the Plan is feasible and meets the terms and conditions established in the Bankruptcy Code. Creditors have the opportunity to oppose the plan. A common objection is that the amounts to be paid under the Plan are less than creditors would receive if there was a total liquidation of the debtor’s assets or that the Plan does not require the debtor to tender all disposable income during the three-to-five year period of the Plan. Subject to certain conditions, the Judge has the discretion to amend a Plan.

A debtor doesn’t receive a discharge in bankruptcy until after all payments required under the Plan have been made. Creditors who received partial or full payment under the Plan are thereafter barred from starting or continuing any action against the debtor to collect the discharged obligations. 

If you are a family farmer or family fisherman and want more information about Chapter 12 bankruptcies, feel free to contact the Cooper Levenson Restructuring and Bankruptcy Group.

The attorneys at Cooper Levenson, PA can assist you in asset protection planning and answer any other questions you may have related to your business. Please reach out anytime to Eric A. Browndorf, Esq. at ebrowndorf@cooperlevenson.com or Kevin J. Thornton, Esq. at kthornton@cooperlevenson.com.

UPDATE 3/31/20 : NJ Governor Murphy Amends Businesses Affected by Executive Order No. 107

March 31, 2020
Jennifer B. Barr, Esq.

Governor Phil Murphy and Superintendent of the State Police Colonel Patrick Callahan today announced an Administrative Order amending which businesses are permitted to operate and clarifying ways in which some businesses may operate in accordance with Executive Order No. 107. The Administrative Order states the following:

  • Individual appointments to view real estate with realtors by individuals or families shall be considered essential retail business. Open houses are still considered impermissible gatherings.
  • Car dealers may continue to conduct online sales or remote sales that are consistent with current law. In the event of such a sale, the car may be delivered to the purchaser or the purchaser can pick up the car curbside or in the dealership service lane.
  • In accordance with the guidance released by the federal Department of Homeland Security, effective Tuesday, March 31, at 8:00 a.m., firearms retailers are permitted to operate – by appointment only and during limited hours – to conduct business which, under law, must be done in person. The NICS background check system will be up and running to process firearms purchases.
  • Golf courses are considered recreational and entertainment businesses that must close to the public and to members associated with private golf clubs.
  • And the Division of Alcoholic Beverage Control is issuing guidance to allow microbreweries or brew pubs to provide home delivery to their customers. Home delivery has been prevented because of a ruling that ABC issued last May. Today, ABC has decided to relax that ruling and allow for home delivery.

“While we’ve made adjustments to businesses that are permitted to operate, my stay-at-home order remains firmly in effect,” said Governor Murphy. “Unless you absolutely need to get out, or unless your job is critical to our response, I have ordered all New Jerseyans to just stay home.”

_____________________

Governor Murphy Announces Statewide Stay at Home Order, Closure of All Non-Essential Retail Businesses

To mitigate the impact of Coronavirus or COVID-19, New Jersey Governor Phil Murphy has issued Executive Orders 107 and 108, effective on March 21, 2020 at 9:00 PM. Visit the New Jersey Governor’s office website and release here to read the specifics, including the announcement of the closing of non-essential retail businesses:
  • Gatherings of individuals, such as parties, celebrations, or other social events, are cancelled unless explicitly authorized by Executive Order 107. CDC guidance defines a gathering to include conferences, large meetings, parties, festivals, parades, concerts, sporting events, weddings, and other types of assemblies.
  • Non-essential retail businesses must close storefront and brick-and-mortar operations while Executive Order 107 is in effect. Also, all recreational and entertainment businesses must close to the public, including: Casinos; Racetracks; Gyms and fitness centers; Movie theaters; Concert venues; Nightclubs; Indoor portions of retail shopping malls; and Places of public amusement. Businesses may continue any online operations.
  • Personal-care businesses that by their very nature result in noncompliance with social distancing must be closed to the public as long as the Order remains in effect. This includes: Barbershops; Hair salons; Spas; Nail and eyelash salons; Tattoo parlors; Massage parlors; Tanning salons; and Public and private social clubs.
  • Bars and restaurants in New Jersey must be closed for on-premise service and may provide take-out and delivery service only. Drive-throughs, take-out, delivery offered by restaurants, and other delivery services can continue to operate.
While Governor Murphy’s Executive Order directs the closure of all non-essential retail businesses to the public, it states the exceptions of:
  • Grocery stores, farmer’s markets and farms that sell directly to customers, and other food stores, including retailers that offer a varied assortment of foods comparable to what exists at a grocery store;
  • Pharmacies and medical marijuana dispensaries;
  • Medical supply stores;
  • Gas stations;
  • Convenience stores;
  • Ancillary stores within healthcare facilities;
  • Hardware and home improvement stores;
  • Banks and other financial institutions;
  • Laundromats and dry-cleaning services;
  • Stores that principally sell supplies for children under five years;
  • Pet stores;
  • Liquor stores;
  • Car dealerships, but only for auto maintenance and repair, and auto mechanics;
  • Printing and office supply shops;
  • Mail and delivery stores.
The complete orders can be found at:
For the most up to date information from the State’s COVID- 19 Information Hub, please visit: https://covid19.nj.gov/

WEBINAR: Good News for New Jersey Small Businesses Impacted by COVID-19: An Overview of the NJEDA Grant and Loan Program

Presented by the Greater Atlantic City Chamber of Commerce

Register here:

 

 

Date: Wednesday, April 1, 2020

Time: 11:00 am – 12:00 pm (edt)

Event Description:

Relief to New Jersey small and mid-sized businesses was announced on March 26 by the New Jersey Economic Development Authority (“NJEDA”). If this $75 million package of initiatives is followed by additional State, Federal, and philanthropic sources, it is expected to grow to more than $100 million. In this session, we will discuss what the following approved programs mean to small businesses.

Speakers:
Nicholas F. Talvacchia, Esq., Partner, Cooper Levenson, Attorneys at Law
Jennifer B. Barr, Esq., Cooper Levenson, Attorneys at Law

Topics:
Small Business Emergency Assistance Grant Program
Small Business Emergency Assistance Loan Program
Community Development Finance Institution (CDFI) Emergency Loan Loss Reserve Fund
CDFI Emergency Assistance Grant Program, including

  • UCEDC (United Counties Development Corp;)
  • GNEC (Greater Newark Enterprise Corp.)
  • RBAC (Regional Business Assistance Corp.)
  • NJCLF (New Jersey Community Loan Fund)
  • CBAC (Cooperative Business Assistance Corp.)

NJ Entrepreneur Support Program
Small Business Emergency Assistance Guarantee Program
Emergency Technical Assistance Program
US Small Business Administration (SBA) Economic Injury Disaster Loans (EIDLs)
The federal coronavirus stimulus package

Please register to attend to receive a reminder email about the event.  You can also save the following Zoom Meeting URL to join the webinar.

Join Zoom Meeting
https://zoom.us/j/954420860

Meeting ID: 954 420 860

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Meeting ID: 954 420 860 Find your local number: https://zoom.us/u/aeFe8Ihq4L

COVID -19 Update : More Delays For Courts

March 30, 2020
Jennifer B. Barr, Esq.

On March 27, 2020, the New Jersey Supreme Court issued another Order further extending litigation timelines, and extending previous Notices and Orders that had been issued over the past several weeks.  

All state courts throughout New Jersey, as well as the Federal courts that hear matters affecting New Jersians, have quickly responded to implement social distancing measures pursuant to Governor Murphy’s Executive Order 107 and as recommended by the New Jersey Department of health and the Center for Disease Control.  

The state courts are, with limited exceptions, operational.  With the availability of electronic filing and video/telephonic conferencing, litigation is continuing.  The Court has permitted the extensions of time for most matters. Litigation is proceeding with delays as needed.  

The New Jersey Supreme Court on March 27, 2020 ordered the following provisions:

  1. JURY TRIALS 
  • No new civil or criminal jury trials will be conducted until further notice
  • Grand jury empanelment dates, including State grand juries, are postponed, and new notices will be issued after April 26, 2020
  • All current grand jury sessions are cancelled through April 26, 2020 
  • Notices dated March 12 and March 15, 2020 remain in effect

    2. CRIMINAL MATTERS 

  • Computation of time limits have been tolled, and other time limits such as return of indictments and time in which to start a trial have been extended
  • Criminal matters are encouraged to proceed to the extent possible by way of video and telephonic conferencing

3. CIVIL MATTERS

  • Order dated March 17, 2020 remains in effect
  • Affidavits of merit in medical and malpractice cases: time to file is extended through April 26, 2020
  • Courtesy copies
    • R. 1:6-4 requires courtesy copy to of all papers to the judge after filing Civil motion, order to show cause, and orders; the requirement for courtesy copies is eliminated 
    • The Notice to the Bar dated June 28, 2017 and December 6, 2017 required e-filed motion papers to be followed with courtesy copies to the judge; this requirement is eliminated when the total page amount is 35 pages or less, but if the motion papers exceed 35 pages a hardcopy must be mailed to the judge within 2 days of the filing
      • A notice from the Equity Division for Atlantic County and Cape May County sent early on March 27, 2020 stated that courtesy copies in Equity are not required regardless of length 
  • Civil Arbitration: 
    • Sessions scheduled from March 16, to April 10, 2020 have been postponed
    • Sessions scheduled from April 11 to April 26, 2020 will be rescheduled
    • On April 27, 2020 Civil Arbitration matters will resume via video or telephonic conferencing
  • Civil Arbitration timeframes set forth in R. 4:21A-1(d) and R. 4:21A-4(d) are relaxed and supplemented to permit extension of arbitration timeframes and location
  • Discovery deadlines:  permitted to be extended through April 26, 2020
  • Discovery time period: the following time periods are extended to April 26, 2020:
    • Interrogatories (R. 4:17)
    • Discovery and inspection of documents and property (R. 4:18)
    • Physical and mental examination of persons (R. 4:19)
    • Requests for admissions (R. 4:22)
  • Discovery end dates: in the computation of time for discovery end dates, the period between March 16 and April 26, 2020 is excluded
  • Discovery for Special Civil Part matters: discovery time periods incorporated through R. 6:4-3 are also extended through April 26, 2020
  • Foreclosure: the Office will not review or recommend motions or judgments received on or after March 1, 2020 pending further court order
    • Governor Murphy’s Executive Order 106 prevents removal of a lessee, tenant, or homeowner from a residential property due to eviction or foreclosure
  • Involuntary Commitments: hearings are either adjourned or the adjournment period is extended 
  • Lack of prosecution dismissal: the time period to dismiss is tolled through April 26, 2020
    • Automatic dismissal for lack of prosecution in the Law Division – Civil Part, Foreclosure, and Chancery matters is suspended through April 26, 2020
    • Automated default for Special Civil Part matters will be suspended through April 26, 2020
  • Landlord/Tenant calendars are suspended through April 26, 2020; with no evictions
  • Rule relaxation of R. 4:24-1(a) and (c)  (time to complete discovery on parties and extensions of time), R. 4:46-1 (summary judgment), and R. 4:36-3 (trial calendar) are relaxed
  • Special Civil Part and Small Claims trial calendars are suspended through April 26, 2020
  • Summons: R. 4:4-1 is relaxed and supplemented to extend time to issue a summons
    • Summons must be issues within 60 days of the Track Assignment Notice for notices issued between March 16 to April 26, 2020
  • Tort Claims Notice: time to serve is tolled from March 16 to April 26, 2020

4. FAMILY PART MATTERS

  • Provisions of the Orders dated March 17, and March 19, 2020 remain in effect
  • Discovery deadlines under R. 5:5-1(e) are relaxed to permit additional extensions of discovery deadlines through April 26, 2020
  • Lack of prosecution dismissals will be tolled through April 26, 2020
  • Matrimonial Early Settlement Panel: sessions are extended
    • Sessions scheduled from March 16, to April 10, 2020 have been postponed
    • Sessions scheduled from April 11 to April 26, 2020 will be rescheduled
    • On April 27, 2020, MESP sessions will resume via video or telephonic conferencing
  • MESP timeframes can be extended, submissions can be sent directly to the panelists, location of sessions can be in a place other than the courthouse, and post-ESP events can proceed without simultaneous entry of a court order

5. TAX

  • The Provisions of the Order dated March 19, 2020 remain in effect regarding the extension of filing deadlines for local property tax appeals and state tax appeals

6. MUNICIPAL COURTS

  • Municipal Court sessions are suspended through April 26, 2020
  • Municipal Courts will continue as described in the March 14, 2020 notice to permit certain matters implicating public safety

7. ALL COURTS

  • Depositions should be conducted remotely with video technology; court reports may administer and accept oaths remotely
  • Depositions for medical or health care personnel who are involved in responding to COVID-19 are suspended through April 26, 2020 with minimal exceptions
  • All court matters to the extent practicable shall proceed by video or phone conferencing; in-person appearances for emergencies only
  • The computation of time periods under the Rules of Court and under any statute of limitations in all courts, for purposes of filing deadlines, shall consider the time between March 16 and April 26, 2020 the same as a legal holiday

The Notice and Order dated March 27, 2020 did not specifically address matters before the New Jersey Supreme Court, which still requires hardcopy filing and original handwritten signatures, is now temporarily accepting electronically filed briefs with an electronic signature.  Paper copies will be required when circumstances allow. For any matters before the New Jersey Supreme Court, it is advised to call the Court for specific instructions at (609)815-2955.    

At Cooper Levenson, we are continuing to litigate matters to the extent possible given this state of emergency.  Many judges, court personnel, attorneys, and law firm personnel in the more densely populated northern New Jersey counties are directly affected by COVID-19.  The court’s quick response to implement social distancing will maintain a safe environment for litigation to proceed.

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Good News for Small Business Affected by COVID-19: State EDA Programs and SBA Programs

March 28, 2020
Nicholas F. Talvacchia, Esq. | Jennifer B. Barr, Esq.

NJDEA PROGRAMS

The New Jersey Economic Development Authority (“NJEDA”) was authorized by Governor Phil Murphy in recent signed legislation to  provide relief to New Jersey small and mid-sized businesses. This package of initiatives will provide more than $75 million of both State and private financial support.  If more resources become available through additional State, Federal, and philanthropic sources, it is expected that these initiatives will grow to more than $100 million.  

The NJEDA initiatives will complement the forthcoming federal economic recovery initiatives.  

There is a fixed amount available to fund  these programs. We recommend early application.

Through both grants and loans, the NJDEA approved the following programs:

Small Business Emergency Assistance Grant Program

  • For businesses and non-profits with between 1 and 10 full time employees
  • Intended to stabilize their operations and reduce the need for layoffs or furloughs
  • Targeted for payroll and working capital support, not capital expenses such as construction
  • $1000 per FT employee, maximum of $5,000 in grants
  • Includes retail, arts, entertainment, recreation, accommodation, food service, and other services – such as repair, maintenance, personal, and laundry services
  • Excludes home-based businesses, and businesses related to gambling or adult services

Small Business Emergency Assistance Loan Program

  • For businesses and non-profits with less than $5 million in annual revenue
  • Intended to help entities that were closed, reduced hours, had 20% decline in revenue, or a disrupted supply chain
  • $100,000 direct loan, with flexible terms such as 10-year amortization, 0% interest, 12-month deferred repayment
  • Includes entities in business for at least one year,  must show negative impact related to COVID-19, and must certify that entity will make best efforts to not lay off employees or will rehire employees as soon as possible
  • Excludes home-based businesses, businesses related to gambling or adult services

Community Development Finance Institution (CDFI) Emergency Loan Loss Reserve Fund

  • Provides loan guarantees to CDFIs for working capital loans to businesses that have been directly impacted by COVID-19
  • Loans can be made by the CDFI to companies that have certified it has been adversely affected (i.e. closed, reduced hours, reduced revenue, etc.)
  • $75,000 loan amount per company
  • Interest rate for the loan must be lower than 3.75%
  • Loans must provide flexible loan structure such as deferred payments, moratoriums on interest for 6 months, etc.)
  • Loan amount cannot exceed five years

CDFI Emergency Assistance Grant Program

  • $250,000 in grant funding per entity
  • To support the scale-up of the organization, tech support, and underwriting capacity, including hiring staff
  • Allows the CDFIs to buy down interest rates on any COVID-19 related emergency working capital loan to provide impacted businesses with lower-costs and more flexible financing

CDFIs include: 

UCEDC (United Counties Development Corp;)
GNEC (Greater Newark Enterprise Corp.)
RBAC (Regional Business Assistance Corp.)
NJCLF (New Jersey Community Loan Fund)
CBAC (Cooperative Business Assistance Corp.)

NJ Entrepreneur Support Program

  • Intended to encourage private sector investors to provide additional working capital loans to entrepreneurial businesses 
  • Provides a guarantee of an investor loan advanced for working capital for an entrepreneurial businesses impacted by COVID-19
  • Investment must have been made after March 9, 2020, program is retroactive to that date
  • NJDEA will guarantee 80% of the total investment amount, not to exceed $200,000 per entrepreneurial company
  • The entrepreneurial business must have:
    • minimum of 50% employees in NJ
    • less than 25 total employees
    • under $5 million in revenue
    • corporate HQ in NJ
    • in one of 8 sectors as follows: advanced manufacturing, information technology, life sciences, finance/insurance, clean energy, food/beverage, advanced transportation, film/digital media
  • Investors can be individuals, trusts, or corporations, and must already have equity interest/position in the company
  • Investors need not be NJ residents

Small Business Emergency Assistance Guarantee Program

  • Pilot program that makes available one-year first loss guarantees of permanent working capital loans and lines of credit from specified “Premier Lender” banks.
  • Intended to cover operating expenses for small businesses and non-profits impacted by COVID-19
  • Provides 50% guarantees on working capital loans and provides a waiver of loan fees
  • Premier Lenders include, among others:
    • BB&T
    • Fulton Bank
    • M&T Bank
    • Ocean First Bank
    • Sturdy Savings Bank
    • TD BAnk
  • Businesses eligible for these loans must have $5 million or less in annual revenue and in existence for at least one year; home-based businesses ineligible

Emergency Technical Assistance Program

  • This program will support technical assistance to New Jersey-based companies applying for assistance through the U.S. Small Business Administration

Existing NJEDA Business Customers

  • 3-month payment moratorium for eligible businesses on direct loans and premier lender participation loans (pending approval by the agency bank)
  • NJEDA is also allowing collateral releases, subordinations and substitutions on business assets
  • Late fees on loan repayments and loan modification fees will be waived for impacted businesses
  • NJDEA has also waived certain requirements for employee presence in the office for programs under Grow NJ, HUB, BEIP, and BRRAG 
  • Under Grow NJ, the NJDEA has discretion to extend time to file project completion certification under certain circumstances

US SMALL BUSINESS ADMINISTRATION

Because New Jersey is approved for federal disaster assistance, New Jersey businesses are available to apply for Economic Injury Disaster Loans through the Small Business Administration (SBA).  

Economic Injury Disaster Loans (EIDLs)

  • Loans are for working capital for small businesses (including small agriculture cooperatives and aquaculture), and private non-profits of all sizes
  • Intended to assist through the disaster recovery period
  • Must have sustained economic injury
  • Credit requirements: must have an acceptable credit history, ability to repay, collateral for loans over $25,000
  • Interest rate is 3.75
  • Loan term is a 30-year maximum
  • Amount of loan is limited at $2,000,000

The attorneys at Cooper Levenson can help your business apply for any of the above programs.  Sign up for the latest news from Cooper Levenson.

CARES Act and Small Business Paycheck Protection Loans

The “Coronavirus Aid, Relief, and Economic Security Act” or the “CARES Act” (“Act”) was unanimously approved by the United States Senate on March 25, 2020.  On March 27, 2020, the Act was passed by the House of Representatives and signed into law by President Trump. Many small business owners are questioning how the Act will help them remain operational and if they will qualify for relief.  While it is a fluid process, the questions that we are most commonly receiving are addressed below.

What constitutes a small business?

Under the Act, a “small business” is a business that employs less than 500 people.  Small businesses are eligible to receive loans that offer debt forgiveness, which is non-taxable, subject to limitations.  The Act appropriates $349 billion to the Paycheck Protection Program, which aids small businesses in covering payroll (for employees earning up to $100,000 per year) and other expenses from February 15, 2020 through June 30, 2020.

What do Paycheck Protection Loans Cover?

Paycheck Protection Loans may be used to pay payroll, group healthcare benefits, insurance premiums, interest on a mortgage or other debt incurred prior to February 15, 2020, and rent and utility payments. Loan proceeds may not be used to prepay debt. No collateral or personal guaranty is required to obtain Payment Protection Loans.  The maximum repayment term is ten years, with a maximum interest rate of 4%.

How much can I borrow?

Qualifying businesses and non-profit entities are eligible to receive loans up to 2.5 times their monthly payroll costs, measured over the prior twelve months, or $10 million, whichever is smaller. Payroll costs are defined broadly and includes salaries, certain employee benefits, state and local taxes and certain types of compensation to sole proprietors or independent contractors up to $100,000. Seasonal employees are treated differently.

What about loan forgiveness?

Paycheck Protection Loans are eligible for loan forgiveness equal to the amount expended by the borrower during an eight-week period after the origination date of the loan on payroll costs, interest payments on mortgages that commenced prior to February 15, 2020, rent incident to any lease that was in force prior to February 15, 2020, and utilities for which service began before February 15, 2020.

The entire amount of the loan is eligible for forgiveness if the loan proceeds are expended on eligible expenses, except that forgiven amounts will be reduced by the amount of the small business’s employee or salary/wage reductions, which is based on a formula outlined in the Act.

If I already laid off employees, can I rehire them?

Yes, you can. The loan forgiveness reduction may be offset and does not apply if, by June 30, 2020, the borrower of a Paycheck Protection Loan rehires the same number of employees (not necessarily the same employees) who were laid off between February 15, 2020 and 30 days after enactment of the Act.

With regard to salary/wage reductions, the forgiven loan amount will be reduced dollar-for-dollar by the amount of salary or wage reductions in excess of 25% in comparison to the employee’s most recent full quarter. With regard to employee salary/wage reductions, the amount of the loan that may be forgiven will be reduced in proportion to the number of employees that a company lays off. To calculate the proportionate reduction, businesses may compare their reduced workforce numbers to either their average full-time equivalent (“FTE”) employees from February 15, 2019 – June 30, 2019, or their average FTEs from January 1, 2020 – February 29, 2020.

However, the forgiven loan amount reduction applies only to salary/wage reductions for employees who did not receive, during any single pay period during 2019, wages or salary at an annualized rate of more than $100,000. Salary/wage reductions for employees who earn in excess of $100,000 per year will not impact loan forgiveness eligibility.

An eligible recipient who employees tipped employees (as described in section 3(m)(2)(A) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(m)(2)(A))) may receive forgiveness for additional wages paid to those employees.

When will I know if a portion of my loan was forgiven and is that income as cancellation of debt?

A lender must issue a decision on a loan application no later than 60 days after the date in which a lender receives an application for loan forgiveness under this section from an eligible recipient. Forgiven amounts may be excluded from gross income.  As such, this cancellation of debt is not income. If you have any questions or concerns, please contact Jarad Stiles at jstiles@cooperlevenson.com.

Jarad Stiles is an attorney in Cooper Levenson’s tax practice and financial restructuring group. He concentrates his practice on business transactions, debt restructuring, bankruptcy, business succession planning, tax planning and controversy matters, asset protection, elder law, trusts, estates, and probate matters in New Jersey and New York.  Jarad may be reached at (856) 857-5594.

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