Our Partner Russell Lichtenstein represents Levinson and Formica and argued the motion that resulted in their dismissal from the sex discrimination lawsuit against county prosecutor.

As seen in The Press of Atlantic City July 16, 2019 edition
by MICHELLE BRUNETTI POST Staff Writer

A judge on Friday dismissed Atlantic County Executive Dennis Levinson and Freeholder Frank Formica from the lawsuit alleging discrimination against women by County Prosecutor Damon Tyner.

“The reason I was put in, in the first place, is I went to a rally at a church in Pleasantville in support of Damon Tyner,” said Levinson on Monday. “Not about whether he was guilty or innocent (of the charges of discrimination), but in support of him as a human being and what he has given to the community.”

Levinson credited Tyner with successfully bringing murder and drug charges against Linwood doctor James Kauffman, in the 2012 death of his wife April Kauffman. The case had gone cold under previous prosecutors.

Kauffman killed himself in prison.

The suit, filed in January by former Assistant Prosecutor Diane Ruberton, former Lt. Heather McManus and current Assistant Prosecutor Donna Fetzer, alleges gender discrimination, retaliation and other illicit behavior by the prosecutor and others in his office.

The attorney representing Levinson and Formica said Monday that Cumberland County Superior Court Judge James R. Swift found no merit to any of the claims against his clients, and dismissed the case against them with prejudice. That means the plaintiffs can’t file an amended claim to bring them back in, he said.

The case was moved to Cumberland County in March.

“It appears the plaintiffs were trying to silence County Executive Levinson and Freeholder Formica from speaking out in support of the fine job Damon Tyner has done,” said Russell Lichtenstein, a partner at Cooper Levenson.

Lawyers for the women released a written statement via email Monday afternoon.

“We believe that Dennis Levinson and Frank Formica engaged in actions that were retaliatory and that failed to protect these three women from discrimination,” said Michelle Douglass and Philip Burnham, the lawyers for the women. “New Jersey law makes clear that these actions can be the basis of a legal claim of discrimination even if the retaliation comes after an employee is no longer at her job.”

Tyner, whose office did not respond to a request for comment Monday, released a statement about the suit at the time it was filed.

“It is apparent that the plaintiffs are living in an alternative universe,” the statement said. “The very same conduct they accuse me and the members of my administration of committing was actually carried out by them and others during their brief, ineffective period of leadership of the Atlantic County Prosecutor’s Office.”

Levinson called his inclusion in the sex discrimination case “preposterous,” pointing out that he and the county have no say over who is appointed prosecutor, or how the office is run.

“As their lawyers should know … he is appointed by the governor,” Levinson said, and the prosecutor’s office operates independently.

Formica was named in the suit, according to Levinson, because his brother, Mario Formica, worked for the Prosecutor’s Office.

County Counsel Jim Ferguson estimated the inclusion of Levinson and Formica has already cost county taxpayers at least $20,000 in legal bills and expenses related to the case.

And the expenses will continue, Ferguson said, because the county itself is still named in the lawsuit.

“It’s an outrage. We don’t appoint, direct or hire anybody for that office,” Levinson said. “All we do is pay for it.”

He said the lawsuit will stretch out for quite some time, and cost the county taxpayers plenty.

“It is what it is. We have to live with it,” Levinson said.

The women allege in the suit that Tyner demoted high-ranking women while giving men raises, paid newly hired women at a lower rate than newly hired men, covered up complaints of gender discrimination and spoke in a derogatory fashion about women in general.

In addition to allegations of gender discrimination, the three women claim Tyner was involved in mortgage fraud, failed to investigate a claim that a police officer was leaking confidential information about the April Kauffman murder case and failed to tell defense counsel about the possible leak. They also accuse him of firing employees to hire his brother, and refusing to investigate after an assistant prosecutor exchanged advice via texts with a defendant in a pending domestic violence case.

Regarding Levinson and Formica, the lawsuit alleged they “refuse to look deeper at gender bias and systemically devalue plaintiffs, as women, in the workplace” and “have publicly announced their support of the male defendants even before this lawsuit was filed and even before all the facts were and/or have been disclosed.”

Contact: 609-272-7219 mpost@pressofac.com Twitter @MichelleBPost

Minimum Wage Increase Uniquely Impacts Restaurant Employers

by: Amy E. Rudley, Esq.

Your company has likely received numerous e-mails and notifications set out to remind you that effective July 1, 2019, minimum wage in New Jersey has increased to $10.00 per hour.  However, the impact that this increase has, and that future increases will have on employers of tipped staff has not been adequately addressed in the mainstream discussions of the change.

For tipped employees, the July 1, 2019 increase brings the employee’s required base pay to $2.63 and increases the amount of the available tip credit to $7.27.  This cash base pay and the tip credit, when added together, equal the State’s regular minimum wage.  Along with the minimum wage, the wages for tipped employees are set to increase at regular intervals through January 1, 2024, when the regular minimum wage will be $15.00, the required cash wage will be $5.13, and the allowable tip credit will be $9.87.

The trouble for employers is here.  One requirement of the Fair Labor Standards Act [FLSA] is that the tip credit “claimed by the employer cannot exceed the amount of tips actually received by the tipped employee.”  Many businesses have had difficulty with insufficient tips in their “off season” or on “slow shifts.”  The result of such a situation is that their tipped staff is not receiving sufficient tips to cover the full amount of the tip credit claimed by the employer.  This means that the employee is not being paid the mandated minimum wage.  The FLSA requires that the cash wage paid to an employee and their tips, when combined, equal at least as much as the State’s minimum wage.  While this was sometimes an issue when the tip credit was a mere $6.72, in less than five years, the amount of the available tip credit will increase significantly to $9.89 per hour.  We expect a substantial uptick in those employees who claim that their tips received are not sufficient to cover the tip credit claimed.  Accordingly, businesses who do not track their employee’s tips must keep a careful watch on their total sales to ensure that sufficient tips are likely being earned.

If a tipped employee’s tips are not sufficient to cover the amount of the tip credit, the violation is the loss of the entire tip credit for the period in question.  Often lawsuits for such violations are brought by numerous employees together.  For chain restaurants or larger independent operations, the damages could quickly multiply and become insurmountable.  In addition to the lost wages, impacted employees would also be entitled to the payment of their own attorney’s fees for bringing the action against your company.

Cooper Levenson’s Employment Department has the restaurant and hospitality experience to help defend your company in such litigated matters and, better yet, can help prevent them from occurring through proper planning and consultation.

Better Business, Better Boating: Cooper Levenson Attorneys to give Legal Update at Marine Trades Association of New Jersey Conference March 14th

Cooper Levenson attorneys Amy E. Rudley and Kevin J. Thornton will present a legal update at the Marine Trades Association of New Jersey (MTA/NJ) Conference and Expo on Thursday, March 14th at The Mainland at Holiday Inn in Manahawkin, NJ.  The attorneys will address the top legal issues and recent changes to laws impacting marine business such as Paid Leave and impacts to seasonal employees and minimum wage. They will also cover topics such as “Legal Ways to Help Get Paid,” “Benefits and Risks of Having Employee Handbooks” and how separate topic, stand-alone written policies might benefit smaller businesses.

Rudley, a Partner in the firm, focuses on the areas of employment law, hospitality & casino law, and defense litigation including civil rights litigation and premises liability. She guides clients through the drafting of handbooks and day-to-day employment practices and decisions. Rudley also conducts employment seminars, sessions and trainings, as well as investigations in to workplace allegations of discrimination, retaliation, and harassment. She is admitted to practice law in New Jersey and Pennsylvania and was named to the New Jersey Rising Star Super Lawyer list in the area of Employment Law each year from 2013 to the present.

Thornton, a Proctor in Admiralty, is a partner in the Atlantic City Office. He is a member of the firm’s Commercial Litigation and Maritime Law practice groups. He has a diverse array of clients involved in the marine insurance, marine construction, commercial fishing, recreational boating, and marinas. Thornton has served as Chairman of The Maritime Law Association of the United States Fisheries Committee, is a member of the Board of Directors, Maritime Law Association of the United States, and has served as Pro Bono Counsel for the Garden State Seafood Association since 1999.

For more information, visit www.mtanj.org.

Read this APP story about a filing by our Partner, Russell L. Lichtenstein: Headline “Ocean County prosecutor knew anti-drug ally may have broken law for drug convict: legal claim”

Ocean County prosecutor knew anti-drug ally may have broken law for drug convict: legal claim

TOMS RIVER – After five years of fighting drug abuse, Ocean County Prosecutor Joseph Coronato fired a top prosecutor who told him that Coronato’s ally in the fight against opioids may have broken the law by sending a convicted drug offender out of state in violation of a court order, according to explosive allegations made in legal papers filed by the fired prosecutor….

…”On July 16, three days after Lichtenstein sent a letter to Coronato explaining that Paulhus’ termination violated the state’s whistleblower law, Coronato fired Paulhus, effective immediately.”…


Click here to download a printable version.

Click here to read the APP story on their site: https://www.app.com/story/news/local/courts/2018/10/05/ocean-county-prosecutor-knew-problems-anti-drug-ally-legal-claim/1523859002/

 

 

What Employers Need to Know about New Jersey’s New Paid Sick Leave Act

When New Jersey’s Paid Sick Leave Act goes into effect on October 29, people who work in New Jersey will be able to take up to five sick days without losing any pay. Cooper Levenson’s Russell L. Lichtenstein, Esq., chairman of the Labor & Employment Practice Group, is offering a free white paper explaining key provisions of the new law to employers.

“The Act represents a significant change in the law related to sick leave,” explained attorney Russell L. Lichtenstein, Esq., chairman of the Labor & Employment Practice Group at Cooper Levenson, P.A. “Employers will need to make certain that their payroll and human resources departments understand these changes and are ready to implement the new law when it becomes effective.”

New Jersey’s Paid Sick Leave Act requires employers to provide up to 40 hours of paid sick leave per year to covered employees. The new state law preempts any municipal laws for earned sick leave, so employers will need to review and adjust their policies to comply with the act’s requirements prior to its start, according to Lichtenstein.

Under the Act, sick leave is broadly defined to encompass an employee’s own health needs or those of a family member, including an individual whose close association is equivalent to a family relationship. Sick leave also covers parent-school conferences.

Full-time, part-time and seasonal employees each will earn one hour of sick leave for every 30 hours worked with a maximum of 40 hours sick time per benefit year. There are exemptions, such as construction industry labor under contract and per diem healthcare employees.

Lichtenstein is offering a free white paper that explains New Jersey’s New Paid Sick Leave Act in greater detail, and that provides key action items for businesses to take to ensure they are in compliance. For a copy, contact whitepaper@cooperlevenson.com.

RICE Notice change! Supreme Court reverses Appellate Division over-inclusive RICE notice decision

By Amy Houck Elco, Esq.  and  Yolanda N. Melville, Esq.

Recently, the New Jersey Supreme Court issued its decision in Kean Federation of Teachers v. Ada Morell (A-84-16) (078926). The Supreme Court overturned the Appellate Division’s decision requiring all employees to receive a RICE notice if their names appeared on a public body’s agenda. The Supreme Court opined that RICE notices must be given if an employee will be discussed in executive session and adverse action may be taken regarding his or her employment. The Court also opined that mandating public bodies to issue RICE notices and robustly discuss all personnel matters, as the Appellate Division intimated, would intrude on a public body’s prerogative as to how to conduct its meetings. The Open Public Meetings Act (“OPMA”) does not contain a requirement about the robustness of the discussion that must take place on a topic.

In addition, the OPMA requires public bodies to make their meeting minutes “promptly available to the public to the extent that making such matters public shall not be inconsistent with [N.J.S.A. 10:4-12].” However, the OPMA but does not define the phrase, “promptly available.” The Court reasoned that a public entity must establish its meeting schedule to suit the managerial obligations of its public responsibilities while also acting responsibly concerning its obligation to make minutes “promptly available” to the public. The OPMA’s requirements apply to a diverse range of public entities, so no set amount of time for the release of minutes should be mandated. The OPMA’s legislative history recognizes that closed-session minutes may need to be shielded from the public for a longer period due to the sensitive nature of the material. However, reasonableness must remain the touchstone when assessing promptness. In this case, the five-month delay in releasing the Board’s executive session minutes was considered unreasonable.

Stephanie Farrell to speak at Cape May County Chamber February 9, 2018

Stephanie Farrell will present “Sexual Harassment 101” for business owners and managers at the Cape May County Chamber’s Feb. 9 educational session. The seminar will be held at the Atlantic Cape Community College, Cape May Court House Campus, 341 Court House-South Dennis Road, Cape May Court House, N.J. from 8:30 a.m. until 11:30 a.m.

The session will cover topics including:
– What is sexual harassment?
– How do you identify it?
– What do you do when you receive a complaint?
– Who is liable for acts of sexual harassment?
– How an owner or manager can protect their business from claims of sexual harassment

Register for the event atwww.capemaycountychamber.com. The fee is $20 for Chamber members, $35 for non-members.

HARVEY WEINSTEIN, KEVIN SPACEY, AND YOUR BUSINESS

By: Russell L. Lichtenstein, Esquire

            If you have begun to read this piece, even without a subtitle you know what it is about.  In the weeks since the Harvey Weinstein story broke in the national media, the subjects of sexual misconduct, sexual harassment and sexual assault in the workplace have become a headline of our national discourse.  There is little doubt that we have only learned about a fraction of the allegations, accusations and inevitable denials to come.  Every business owner, HR professional and leadership team member needs to pay close attention to what is unfolding nationally as it certainly has the capacity to substantially impact your business.

Employers need to anticipate and prepare for a significant uptick in complaints of sexual harassment and workplace sexual misconduct.  However, a mere passive recognition of these issues will not protect your business, the morale of your employees or your financial future.

A few simple steps can put you in a much better position to assess and respond to allegations, complaints and rumors of sexual harassment and sexual misconduct in the workplace.

I Know We Have A Policy … Somewhere

While I am certain that the majority of those reading this article have in place anti-harassment/discrimination policies, I am equally certain that if you were to ask your managers and supervisors to recite the substance of your policy, most would have a failing grade.  An initial measure of preventive medicine is to dust off that old policy binder, locate the anti-harassment/discrimination policy and review it with your HR team and employment counsel.  Make sure that the policy is clear and unambiguous.  Make sure the policy provides for several alternatives for reporting.  Unfortunately, many times the individual engaging in workplace misconduct in violation of the policy is a member of the leadership team who has been designated to receive complaints.  Make sure your policy has been distributed to all employees.  Make sure your management team is trained on the policy as a policy is worthless if those responsible for its enforcement do not understand it.

Investigate All Complaints And Claims, Even Those You Do Not Believe

            One of the unfortunate consequences of the increased attention on sexual harassment and sexual misconduct in the workplace is that there are likely to be individuals who attempt to make claims that are false either in terms of facts or context.  It is very tempting for employers to pay either no or less attention to those claims which they simply do not believe.  This is a huge mistake, HUGE.  For those of you that have been in the HR space for any length of time, you recognize that one of the principal precepts in this area is that it is the claim that you do not pay attention to that will come back to bite you.  Do not let that happen.  Your policy should contain an investigation protocol which is followed in every instance in which a complaint or claim of sexual harassment or sexual misconduct in the workplace is made.  There should be no exceptions.  The investigation protocol should require appropriate documentation and finally a report to the individual making the complaint.  To the extent that you conclude, after an appropriate investigation, that an individual lied or falsified allegations of sexual harassment or misconduct, you should always speak with your employment counsel before you make any further decisions.

Train, Train, Train

Critical to responding to, investigating and, ultimately, defending claims of sexual harassment and sexual misconduct in the workplace is training.  In this context, training includes training employees on what the policy is, training the management staff on their obligations to react and report consistent with the policy, and making sure that the individuals that are investigating a complaint or claim of sexual harassment or misconduct have the training and skills that they need to promptly, thoroughly and effectively investigate these claims and complaints.

Keep Your Eyes And Ears Open

More often than not, your leadership team will have a sense that something is “going on” in the workplace before a formal complaint or claim is brought to your attention.  If you become aware of a developing situation, do not wait in your office for someone to come to you; address it.  Have your HR professionals approach those involved and determine whether or not there is an issue or a problem.  Information gathered at this stage, more often than not, becomes very helpful in the event that a later claim is brought.

If You Are Going To Talk The Talk, You Have To Walk The Walk

I hate this phrase.  Having said that, it encapsulates the notion that if an employer is going to have an effective anti-harassment/discrimination policy, that policy has to be enforced uniformly, consistently and without exception.  An individual does not get a “pass” on a complaint of sexual harassment because he or she happens to be the highest producing [fill in the blank] you employ.  Further, the failure to enforce a policy selectively inevitably leads to a workplace where people are reluctant to come forward because they believe that “nothing will be done.”  Do not let that be your workplace.

The Employment Law Practice Group at Cooper Levenson is uniquely qualified to assist employers in all aspects where the law and employment intersect.  The lawyers in the Employment Law Practice Group regularly provide day-to-day and issue-to-issue compliance advice to our clients to guide them through the maze of employment laws, rules and regulations, helping our clients in making decisions which avoid litigation and let businesses focus on their business.

RUSSELL L. LICHTENSTEIN is a Partner and Executive Committee Member at Cooper Levenson.  He chairs the Labor & Employment Practice Group.  Mr. Lichtenstein is rated “AV” by Martindale Hubbell, is certified by the Supreme Court of New Jersey as a Civil Trial Attorney, is certified as a Civil Trial Advocate by the National Board of Trial Advocacy and has been awarded the designation of “Super Lawyer” every year that award has been issued.  Mr. Lichtenstein is available in the firm’s Atlantic City office.  His direct dial number is (609) 572-7676

Wage History Questions in New Jersey May Soon Be History

Employers routinely ask applicants for prior salary history when vetting prospective new employees and determining appropriate employment offers. However, a bill passed the New Jersey State Assembly in May 2017 and the State Senate on Monday forbidding New Jersey employers from asking this question of their applicants. This bill will not become the law of New Jersey until it is signed by Governor Christie.

This prospective law prohibits private employers from seeking information directly from the applicant and from prior employers regarding an applicant’s prior wages. Former employers would need written authorization from their former employees to permit the release of such information. The language of the bill specifically exempts the Federal Government, State Government, Municipalities, and School Districts from compliance and recognizes that such inquiries may also be appropriate in the context of a collective bargaining unit and negotiations.

The law would be enforceable immediately and violations of the new law, if it is signed by the Governor, would result in a civil penalty in an amount not to exceed $2,000 for an employer’s first violation and $5,000 for each subsequent violation. This penalty would be payable to the Commissioner of Labor and Workforce Development and not to the aggrieved party.

This law is a tool lawmakers hope will help to alleviate the gender pay gap, which studies show remains an issue for women. New York City recently passed a similar bill which prohibits public and private sector employers from using an individual’s salary history to determine a new salary offer.

If you utilize wage history in connection with your hiring process, you should pay careful attention to the implementation of this law. In addition, New Jersey employers are wise to carefully consider releasing wage history regarding their prior employees in light of this pending legislation.

*URGENT UPDATE* Changes to FLSA Federally Mandated Minimum Salary Halted by Court

ARudBlog.jpgby Amy E. Rudley, Esquire

I published an e-mail blast on Monday regarding the doubling of exempt employee minimum salaries effective December 1, 2016. On Tuesday, November 22, 2016, Judge Amos L. Mazzant of the United States District Court for the Eastern District of Texas granted an Emergency Motion for Preliminary Injunction, halting the implementation of the changes to the Fair Labor Standards Act (FLSA) that were scheduled to take effect on December 1, 2016. There is no new date for implementation at this time.

While Judge Mazzant presides in the Eastern District of Texas, this injunction has a nationwide impact. In other words, this Rule requiring a minimum of $47,476 in exempt employee salary or the payment of overtime is not being implemented at this time. The minimum salary for exempt employees remains $23,660.

A copy of the full Order can be found here.

If you have questions of what to do now, the Employment Law team at Cooper Levenson, P.A. can help you with compliance and how to undo any changes you may have implemented in light of the anticipated Rule change.


Exempt Employee Pay Doubling December 1, 2016

11/21/16 – Drastic changes to salary requirements under the Fair Labor Standards Act [FLSA] take effect in approximately 2 weeks. Is your company ready? If any of your employees are paid on a salary basis, with no opportunity for overtime pay, these changes will likely impact your business.

Traditionally exempt employees, including those in managerial, professional, or administrative roles are often paid on a salary basis. Beginning on December 1, 2016, the Federally mandated minimum salary for exempt employees will be $913 per week/ $47,476 annually. This requirement more than doubles what employers must pay their exempt employees from the previous $455 per week/$23,660, annually.

Even if your employee meets the duties test for exempt employee status, if their rate of pay is less than the $913 per week you will be made to pay them overtime unless you take action now.

There is an option available for employers to provide “catch up payments” to their exempt employees who will fall short of the minimum salary. This involves paying up to 10% of the exempt employee’s salary in the form of a bonus or “catch up payment” in order to meet the minimum salary requirement and retain their exempt status.

An example is illustrative here (you can click here for a full explanation of the math):

Employee A and Employee B work for “Any Company.” They each hold an assistant manager position, but Employee A earns $46,000 annually and Employee B earns $36,000. Assume both meet all of the requirement for exempt employee status, both work 55 hours per week, and neither receives overtime pay. Under the new Final Rule for Overtime payments, Employee B will possibly be paid almost $2,000 more, on an annual basis, than Employee A.

Had “Any Company” paid better attention to the changes in this law, they could have planned ahead for this change and avoided this discrepancy.

With careful planning, employers can make the most prudent choices for payment of their employees under the FLSA. You can start the planning process on your own by taking the following action:

  1. Make a list of all employees who are currently paid on a salary basis;
  2. Consider each employee and whether they meet the requirements of an exempt employee under the law;
  3. Evaluate their salary and whether it meets the minimum salary basis of $47,476 annually.

There is no prohibition on paying exempt employees on an hourly basis at a rate that is not equal to the $47,476 annually. Such employees are entitled to overtime pay and employers can regulate the use of overtime through workplace rules, even requiring that overtime be approved in advance. Discipline can be imposed for violations of such overtime rules, however, employees must always be paid for all hours worked, including their unauthorized use of overtime.

For questions pertaining to this decision or any other employment-related questions, the author of this article, Amy E. Rudley, Esquire, a Partner in Labor & Employment Department of Cooper Levenson, P.A., may be reached at 609-572-7408 or via e-mail at arudley@cooperlevenson.com.