Author: Gibbons P.C.

New Jersey Supreme Court Decision Explains Requirements to Assert Statutory Good Faith Defense to Wage and Hour Claims

The New Jersey Supreme Court recently ruled that employers could not rely on determinations made by subordinate employees of the New Jersey Department of Labor and Workforce Development (“Department”) to support a “good faith” exemption from New Jersey’s overtime pay mandates, instead finding such determinations must come from either the Commissioner of the Department or the Director of the Division of Wage and Hour Bureau. In Elmer Branch v. Cream-O-Land Dairy, the plaintiff Elmer Branch, a truck driver, filed a putative class action lawsuit against his employer Cream-O-Land Dairy (“Cream-O-Land” or “the defendant”) for payment of overtime wages under the New Jersey Wage and Hour Law (WHL). The plaintiff claimed that he, along with other “similarly situated truck drivers” employed by the defendant, were eligible for overtime pay at 1½ times their regular hourly wage. Cream-O-Land asserted two principal arguments in defense of the lawsuit: (1) it is exempt from the overtime requirements of the WHL because it is a “trucking industry” employer (and thus required to pay employees only 1½ times the minimum wage as opposed to 1½ times the employees’ regular rate of pay); and (2) it relied in “good faith” on certain prior determinations made by the Department finding that Cream-O-Land qualified as a “trucking industry employer” under the WHL and, therefore,...

NJDEP Extends Some Deadlines for Remediation Activities

In light of the disruptions created by the COVID-19 pandemic, the New Jersey Department of Environmental Protection (NJDEP) has again extended certain deadlines (or, in the language of the relevant statutes and regulations, timeframes) for the completion of various remediation activities at contaminated sites. On February 1, 2021, NJDEP issued a Notice of Rule Waiver/Modification/Suspension pursuant to Executive Order No. 103, which was issued on March 9, 2020. It follows similar notices issued on April 24, 2020 and August 17, 2020. The new notice extends some regulatory and mandatory timeframes reached during the effective period of Executive Order 103 for a total of 455 days (including the prior 270-day extensions), with corresponding extensions of subsequent timeframes. For remediations subject to the statutory timeframes in N.J.S.A. 58:10C-27 and -27.1, requiring completion of the remedial investigation by May 7, 2014 or May 7, 2016, it extends the timeframe for completing the remedial action from May 6, 2021 to May 6, 2022. Parties seeking to benefit from the extensions must have retained a licensed site remediation professional (LSRP). While surely not among the most significant effects of the pandemic, these changes in remediation timeframes are among the hardest to follow. Parties conducting (or even simply monitoring) remediation projects, their counsel, and their LSRPs would do well to keep...

OSHA Releases New Workplace Guidance on COVID-19

On January 21, 2021, President Biden issued the Executive Order on Protecting Worker Health and Safety (“Executive Order”) directing, among other things, that the federal Occupational Safety and Health Administration (OSHA) issue, within two weeks, revised guidance to employers on workplace safety during the COVID-19 pandemic, consider establishing emergency temporary standards for workplace COVID-19 protections, and, if needed, issue such standards by March 15, 2021. The Executive Order also requires that OSHA launch a national program to focus its enforcement efforts on those violations that place the greatest number of employees at serious risk or conflict with anti-retaliation principles and publicize its efforts through a multilingual outreach campaign to inform employees of their rights under OSHA’s applicable regulations, with special emphasis on communities hit hardest by COVID-19. On January 29, 2021, as directed by the Executive Order, OSHA issued new guidance, entitled Protecting Workers: Guidance on Mitigation and Preventing the Spread of COVID-19 in the Workplace (the “Guidance”). The Guidance, which is supplemented by industry-specific measures, provides recommendations to assist employers in creating and maintaining safe and healthy workplaces, while also describing OSHA’s current safety and health standards. The new Guidance is not substantially different from previous OSHA guidance, but it sets a different tone – signaling greater support for OSHA enforcement. Importantly, the Guidance...

Opening Pandora’s Box: A Preliminary Showing of Spoliation May Result in the Compelled Production of a Litigation Hold Notice

In Radiation Oncology Servs. of Cent. N.Y., P.C. v. Our Lady of Lourdes Mem’l Hosp., Inc., the New York Supreme Court reminded litigants that while litigation holds are generally protected by the attorney-client privilege or under the attorney work product doctrine, a preliminary showing of spoliation of evidence may compel the production of an offending party’s litigation hold documentation. In this litigation involving clinical privileges related to an exclusive radiation oncology services agreement, the plaintiffs identified seven specific instances of spoliation by the defendants. These included certain emails that the defendants produced in hard copy form, but for which they were unable to produce the corresponding electronic version and the related metadata – which the court seemed to globally refer to as the “electronically stored information,” or ESI, relating to the emails – because they had been deleted. The plaintiffs successfully argued that the failure to produce the ESI constituted spoliation because it deprived them of the ability to understand whether there were follow-up discussions with other individuals about the content of the communications, including those who may have been copied on the communications or follow-up emails. The court granted the plaintiffs’ motion to compel the production of the defendants’ litigation hold notice because it found that the permanent deletion of the ESI “potentially deprived...

Thomson West Releases 2020-2021 Update of Business Law Deskbook, With Two Environmental Law Chapters Authored By Gibbons Attorney

The recently released 2020-2021 update of the Thomson West New Jersey Business Law Deskbook includes chapters authored by Paul M. Hauge, Counsel in the Gibbons P.C. Environmental Law Department. Mr. Hauge authored Chapter 26, which discusses the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and Chapter 27, on New Jersey Environmental Law. The Deskbook, updated annually to reflect statutory, regulatory, and judicial developments, is designed to give attorneys user-friendly primers on roughly 40 areas of business law. Gibbons Environmental Law Department Director Susanne Peticolas pioneered the firm’s involvement with the Deskbook in 2003, authoring the Gibbons contributions until 2007 and sharing authorship with Mr. Hauge between 2008 and 2019.

FCC Reverses Course and Finds That Government Contractors Are “Persons” Under the TCPA

Last month, the Federal Communications Commission (FCC) issued an Order on Reconsideration, overturning Commission precedent by clarifying that federal, state, and local government contractors are “persons” under the Telephone Consumer Protection Act (TCPA) and therefore must, under 47 U.S.C. § 227(b)(1)(A)-(D), obtain prior written consent to make certain calls using an automatic telephone dialing system or artificial or prerecorded voice; to initiate a call to any residential telephone line using an artificial or prerecorded voice; to use a fax machine or other device to send an unsolicited advertisement; or to use an automatic telephone dialing system in such a way that two or more telephone lines of a multi-line business are engaged simultaneously. This ruling is the latest in the Commission’s efforts to protect consumers from unwanted robocalls. The TCPA prohibits certain unsolicited calls made by any “person,” which includes an “individual, partnership, association, joint-stock company, trust, or corporation,” without the prior written consent of the consumer. In 2016, the FCC issued a declaratory ruling stating that the federal government and federal government contractors were not “persons” under the TCPA, and therefore, the limitations on calling enumerated in Section 227(b)(1)(A)-(D) did not apply to them. The FCC reasoned that there is a longstanding presumption that the word “person” does not include the sovereign and that,...

NYSDEC Commissioner Directs Agency to Investigate PFAS Contamination in Consumer Products

New York State Department of Environmental Conservation (NYSDEC) Commissioner, Basil Seggos, announced last week that he is directing the Department to conduct a new investigation of potential per- and polyfluoroalkyl substances (“PFAS”) contamination in consumer products. PFAS have been designated as chemicals of emerging concern by the U.S. Environmental Protection Agency (EPA). Specifically, Commissioner Seggos has directed the Department to “take a hard look at new science shared by the U.S. Environmental Protection Agency about potential PFAS contamination in consumer products, including insecticides, pesticides, and other crop protectant products packaged in fluorinated high-density polyethylene (‘HDPE’) containers.” Earlier this month, the EPA had issued a press release that stated, “the agency has determined that fluorinated HDPE containers that are used to store and transport a mosquito control pesticide product contain PFAS compounds that are leaching into the pesticide product.” The EPA press release that triggered the Commissioner’s directive announced the EPA’s investigation into companies that use fluorinated containers and companies that provide container fluorination services, in an effort to identify potential sources of contamination. The directive from Commissioner Seggos is the latest in a line of actions taken by New York to address PFAS contamination, including a statewide investigation of potential sources of PFAS and the establishment of drinking water maximum contaminant levels for two PFAS...

Lack of Plaintiff Article III Standing Proves Fatal to Eleventh Circuit in FACTA Class Action Settlement

In a 7-to-3 en banc decision, the Eleventh Circuit vacated a high-stakes $6.3 million class settlement on standing grounds. In James Price v. Godiva Chocolatier, Inc., et al, the court held that a named plaintiff lacked standing to bring a claim under the Fair and Accurate Credit Transactions Act (FACTA) on behalf of a proposed settlement class. The plaintiff, Dr. David Muransky, filed a class action complaint against Godiva claiming a violation of FACTA, which prohibits “merchants from printing more than the last five digits of the card number (or the card’s expiration date) on receipts offered to customers.” After visiting a Godiva retail store in Florida, the plaintiff was handed a receipt that contained the first six and the last four digits of his credit card number–a technical violation of FACTA. The plaintiff claimed that the violation was “statutory in nature” and did “not intend[] to request any recovery for personal injury.” The plaintiff further framed the class’s harm from violations as “irreparable harm as a result of the defendant’s unlawful and wrongful conduct,” and that “Plaintiff and members of the class continue to be exposed to an elevated risk of identity theft.” The putative class was so large that Godiva could have faced statutory damages, punitive damages, and costs of more than $342...

Planning Ahead: The Critical Importance of Early Agreement on the Proportional Scope of Preservation

In M.A. v. Wyndham Hotels & Resorts, Inc., and H.H. v. G6 Hospitality LLC, the United States District Court for the Southern District of Ohio, Eastern Division, rejected plaintiffs’ objections to the Magistrate Judge’s decision excluding certain types of electronically stored information (ESI) from defendants’ duty to preserve. In doing so, the District Court emphasized the fact that the parties had spent a considerable amount of time addressing issues related to ESI and that plaintiffs had consented to the exclusions during a status conference with the Magistrate Judge. In adopting the Magistrate Judge’s recommendation, the District Court based its decision on “guiding principles of proportionality, default standards in other jurisdictions, and current trends in ESI discovery.” Plaintiffs filed related complaints against several hotel locations and parent companies pursuant to the Trafficking Victims Protection Reauthorization Act (TVPRA). In April 2019, plaintiffs sent letters to defendants reminding them of their duty to preserve potentially discoverable ESI. A number of discovery disputes ensued related to proposed confidentiality and ESI orders. While this decision also addresses issues related to confidentiality, the primary focus of this post is the dispute regarding defendants’ obligation to preserve certain types of ESI. In particular, plaintiffs objected to an oral decision rendered by the Magistrate Judge finding that defendants were not obligated to preserve:...

NJ’s New Economic Incentive Legislation Includes Supplement to Brownfields Program

The New Jersey Economic Recovery Act of 2020 (NJERA), recently signed into law by Governor Murphy, includes an important new tax incentive for Brownfields called the “Brownfields Redevelopment Incentive Program Act” (BRIPA),  included as Sections 9 through 19 in the act. BRIPA supplements the existing “Brownfield and Contaminated Site Remediation Act” (BCSRA), which provides funds for reimbursement of varying components of remediation costs at Brownfield sites based on certain eligibility criteria, including the Hazardous Discharge Site Remediation Fund and the Brownfield Site Reimbursement Fund. Under BRIPA, as under BCSRA, a “Brownfield site” is any commercial or industrial site that is “vacant or underutilized and on which there has been, or there is suspected to have been, a discharge of a contaminant.” BRIPA further expands the definition of Brownfield sites to include sites where there is or suspected to be contaminated building materials. BRIPA takes an approach similar to that of the New York Brownfields Cleanup Program by awarding tax credits of up to the lesser of 40 percent of remediation costs or $4 million under redevelopment agreements entered into by the state and a developer. There is a cumulative cap of $50 million that can be awarded annually under BRIPA. Projects that are eligible for tax credits under BRIPA are those that are located at...