RU Kidding Me?: How NJ Legislature Will Cause Rutgers to Fall Behind in the Big 10
The groundbreaking Supreme Court of the United States case, NCAA v. Alston, opened the door for student-athletes to obtain compensation for use of his or her “name, image, or likeness” (“NILs”) in marketing or promotion materials at a local, state, regional, and national level.[1] In Alston, the Supreme Court agreed with the challenging group of student-athletes that the NCAA rules limiting compensation compared to that offered in a free market violated federal antitrust regulations.[2] Until Congress passes uniform federal legislation, there is no guidance and states are left to create their own legislation. Right now, 15 states have legislation pending and 26 have NILs legislation passed, which includes New Jersey. This author believes the NJ legislation is problematic and needs to be fixed. The New Jersey legislation “allows certain collegiate student-athletes to earn compensation for the use of their [NILS]” and a “four-year institution of higher education will be prohibited from upholding any rule, requirement, standard, or other limitation that prevents a student of that institution participating in intercollegiate athletics from earning compensation as a result of the use of the student’s [NIL].”[3] However, there are several limitations of the Legislation: (1) the bill only pertains to four-year institutions of higher education; (2) any individual athlete NILs contract must not conflict with any provision of a student-athlete’s team contract; (3) student-athletes must not enter into NILs contracts with any “scandalous” or “adult” entities, such as adult entertainment, gambling, firearms, prescriptions, pharmaceuticals, and tobacco, and last but certainly not least; (4) the legislation goes into effect in the fifth academic year following the date of enactment (which was September 14, 2020).[4] This means New Jersey student-athletes would not be able to profit from his or her NILs until September 14, 2025. The last of these limitations is the most hindering when considering the legislation from other surrounding states (especially those in Big 10 country). Pennsylvania’s NIL law was enacted in the Commonwealth’s 2021 budget, taking effect immediately.[5] Maryland’s NIL legislation was signed into law but does not go into effect until July 2023.[6] Ohio’s governor signed an executive order and was introduced into the state’s budget so that student-athletes are able to immediately enter NILs contracts.[7] Michigan’s legislation was signed into law and takes effect December 31, 2022.[8] Indiana, notably, does not have any legislation passed regarding NILs, meaning Indiana student-athletes are able to profit from his or her NILs as long as within the NCAA’s policies. Since New Jersey’s NILs law permitting these contracts does not go into effect until 2025, student-athletes who are committed or enrolled in New Jersey institutions may elect to transfer or decommit in favor of another school. As a direct result of New Jersey’s legislation, Rutgers and other four-year institutions may be left behind in the NIL dust when trying to recruit student-athletes to campus for the next few years. Contact Nicholas E. Sulpizio, Esq. for legal advice when seeking to enter a NILs contract to ensure compliance with all applicable rules and legislation. [1] NCAA v. Alston, 141 S.Ct. 2141 (2021). https://scholar.google.com/scholar_case?case=18386472160721780784&q=ncaa+v.+alston&hl=en&as_sdt=6,31. [2] Id. [3] NJ S971. [4] Id. [5] PA S381. [6] MD HB533. [7] OH SB187 [8] MI HB5217-5218....
read morePrivate Businesses With At Least 100 Employees Must Soon Mandate Vaccination Or Weekly Testing
Written by: Susan L. Swatski On September 9, 2021, President Biden announced a six part “Path Out of the Pandemic” plan which requires private-sector businesses with at least 100 employees to mandate that employees get vaccinated against the Coronavirus or submit to weekly testing. The Occupational Safety and Health Administration (“OSHA”) will soon issue emergency temporary standards (“ETS”) to address how the mandate will be enforced and what exemptions may apply. When the mandate will become effective has yet to be determined, but we do know that employers should begin to prepare as it could take effect in as soon as thirty (30) days. Once implemented, the mandate will remain in effect for until December 31, 2021 to allow OSHA time to subject the mandate to the formal rulemaking process, which includes public comment. To prepare for the mandate, employers should do the following: Encourage employees to voluntarily vaccinate; Prepare for requests for accommodations, i.e. religious exemptions (need not be supported by a formal religious group) and disability exemptions (a bona fide medical reason not to vaccinate); and, Determine whether the business should require all employees to vaccinate or to allow weekly testing as an alternative. Considerations include: a) The cost of administering and validating weekly test results; b) The number of employees who will terminate their employment rather than vaccinate or submit to weekly testing; c) Whether to pay employees for their testing time; this issue is likely to be addressed by the ETS and/or a New Jersey Executive Order; and, d) The timing of testing, i.e. will testing take place during the workday; how will testing impact productivity. We encourage employers to seek legal assistance to prepare for the ETS and to ensure that your business has the policies and procedures in place to implement the mandate with minimal business disruption. If you have any questions or if you require assistance to help your business navigate this challenging time, please contact, Susan L. Swatski, Esq. for additional information or to discuss your specific employment-related circumstances....
read moreHot Off the Press – the CDC changed its guidance for contact tracing!
Written by: Susan L. Swatski, Esq. Under prior guidance, the CDC defined a close contact as someone who spent at least 15 consecutive minutes within six feet of an infected person, thus putting the individual at higher risk of contracting the virus. The CDC updated its guidance to define a close contact as: “Someone who was within six feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from two days before illness onset (or, for asymptomatic patients, two days prior to test specimen collection) until the time the patient is isolated.” In sum, the standard is now cumulative rather than consecutive minutes which greatly broadens who may need to be notified in the event of a positive case. For example, a person who was exposed three times in a 24-hour period—for five minutes during each encounter—would meet the definition. Please check your policies for contact tracing and be sure to note this important change. ...
read moreCOVID-19 Workplace Safety Training
Written by: Susan L. Swatski, Esq. Sixteen states, including New York, require employers to provide COVID-19 workplace safety training to employees. Even in states where training is not explicitly required, such as New Jersey and Pennsylvania, employers should consider providing COVID-19 workplace safety training. The Occupational Safety and Health Act and related state laws require employers to provide a workplace free from “known hazards” that are “likely to cause death or serious physical harm.” Exposure to COVID-19 in the workplace could constitute a workplace “known hazard” if the job requires physical interaction with the public or close contact with other employees. By way of example, a lawsuit was recently filed by employees of several Chicago restaurants. The employees claimed the restaurants acted negligently and created a public nuisance by failing to correctly train employees on social distancing and to enforce face-covering. The employees established that the possibility of COVID-19 infection and subsequent injury in the workplace was “highly probable,” causing the court to issue a preliminary injunction. The injunction required the restaurants to provide employee training on social distancing and to enforce face-covering requirements. COVID-19 workplace safety training should include: CDC and OSHA workplace safety protocols, All state-mandated training elements and workplace safety protocols and Review of all employer workplace safety policies and practices including wearing of masks, occupancy restrictions, temperature testing, restrictions on in-person client/customer meetings etc. Employers should keep a written record of all who attend safety training. If you are interested in conducting COVID-19 workplace safety training, please contact Susan L. Swatski, Esq. at sswatski@hillwallack.com; we are providing both in-person and virtual...
read moreAre Employers Required to Pay for COVID-19 Testing?
Written by: Susan L. Swatski, Esq. Health plans are not required under Federal law to cover COVID testing if the reason for the test is not an individualized treatment or diagnosis. For example, return-to-work screenings do not have to be paid by an employee’s health plan. If an employee is not covered by an insurance plan, then the employer should look to the Americans with Disabilities Act (ADA), which contains pre-pandemic guidance that employers may be obligated to pay the costs of administering mandated tests. The Equal Employment Opportunity Commission’s “Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA” provides, in pertinent part, that if an employer requires an employee it reasonably believes will pose a “direct threat” to the health and safety of themselves or others to be examined by a health care professional of the employer’s choice, then the employer must pay all costs associated with the visit. Employees who are required to work in an area with a high infection rate may pose a “direct threat.” In such circumstances, the employer likely would be required to pay for administering employer-mandated COVID-19 testing. In addition, travel and test-taking time could be compensable under the Fair Labor Standards Act and state wage and hour laws because the employer is controlling how the employee is using his/her time. As employees return to work and COVID testing and screening becomes more widespread, it is increasingly important that employers know their responsibilities and clarify their policies for their employees. If you have any questions regarding whether your current policies and practices comply with the law/best practices, please contact Susan L. Swatski,...
read moreICE Extends Remote I-9 Verification For 60 Days
Written by: Susan L. Swatski, Esq. U.S. Immigration and Customs Enforcement (ICE) recently announced that employers with entirely remote workforces as a result of COVID-19 have another 60 days until November 19, 2020 to utilize remote Form I-9 inspection requirements when onboarding new employees. The extension does not apply to businesses where some employees still physically report to a work location. If any employees are physically present at the worksite, in-person physical inspection of Form I-9 documentation must occur. If you require assistance with your Form I-9 verifications and audits, please contact Susan L. Swatski,...
read moreCOVID-19 Commonly Asked Questions by Employers
Written by: Susan L. Swatski, Esq. As employers re-open their offices and employees return to work in person, we have been receiving a number of questions, so we thought it would be helpful to provide you with a summary of the most commonly asked questions and our responses. Please keep in mind that these answers are intended to provide general information; employment laws are heavily nuanced and fact specific. Self-Quarantine and Emergency Paid Sick Leave: If an employer requires an employee to self-quarantine after returning from a state that is subject to the travel advisory, the employee is not eligible for emergency paid sick leave. Only an employee subject to a government order to quarantine or an employee who has been advised to quarantine by a health care provider is eligible to receive emergency paid sick leave. Disclosure of COVID-19: Employers can ask an employee how he or she is feeling, but employers may not inquire about a specific illness such as COVID-19 as that could rise to the level of a disability-related inquiry under the ADA. Also, employers may not tell employees if a co-worker has tested positive for COVID-19. The ADA privacy rules restrict the sharing of personal health information. However, employers must inform employees that possible exposure has occurred in the workplace without disclosing any identifying information about the individual who tested positive. If an employee discloses that he or she has been in contact with a person who tested positive for COVID-19, then the employer must consider whether the employee satisfies the definition of an “essential worker”. Essential workers who have had close contact with a person diagnosed with COVID-19 may continue to work as long as the employee is asymptomatic and protective measures are taken. This includes screening the employee each workday for fever and other symptoms, having the employee wear a mask and regularly disinfecting work areas. Returning to Work Post a Positive COVID-19 Diagnosis: The CDC recently reported that people with mild to moderate COVID-19 remain infectious no longer than 10 days after their symptoms began, and those with more severe illness or those who are severely immunocompromised remain infectious no longer than 20 days after their symptoms began. In addition, at least 24 hours must have passed since resolution of fever without the use of fever-reducing medications before an employee should be allowed to return to work. Requiring an Employee to go home: Employers may require employees who are exhibiting signs of respiratory illness to go home until they are symptom free. Employees can utilize their sick leave or PTO. Nonexempt employees who do not have paid leave available are not required to be paid for such absences, unless there is a collective bargaining agreement indicating otherwise. An exempt employee must be paid for partial-day absences, but may have his or her salary reduced for full-day absences due to sickness if the employer offers a paid sick leave benefit and the employee has exhausted that leave or is not yet eligible for the leave. Doctor’s notes: Employers can require clearance from a health care provider prior to an employee returning to work, provided that the practice is consistently applied. However, the CDC suggests that employers remove such requirements during the pandemic because health care providers may be limited. School Reopening Plans: Under the Families First Coronavirus Response Act (FFCRA), emergency sick leave and emergency expanded...
read moreNew Jersey Supreme Court Holds That Electronic Distribution Does Not Invalidate An Otherwise Clear And Unambiguous Arbitration Agreement
Written by: Michael K. Fortunato, Esq. The New Jersey Supreme Court recently upheld an arbitration agreement which was distributed to employees through a series of emails and the employer’s online training module. In Skuse v. Pfizer, Inc., the Court rejected the argument that electronic communications are inappropriate means for such distribution. While the Court’s approval of electronic distribution will be its most-discussed aspect, however, the decision should also remind employers that arbitration agreements in New Jersey, regardless of form, will be enforced only if they are clear and unambiguous. The Agreement On May 5, 2016, Pfizer sent an e-mail to employees notifying them of a new “Mutual Arbitration and Class Waiver Agreement.” The email linked to the relevant document, an agreement which required all employment related-claims to be adjudicated through arbitration and which stated that the parties forever waived the right to a judge or jury. The agreement also stated that if the employee continued working at Pfizer for sixty days following the receipt of the agreement, they would be deemed to have consented to it and that their knowledge of the agreement was not required for it to be enforced. Pfizer also circulated a series of Frequently Asked Questions (FAQs) which provided further explanation, and a reminder to acknowledge receipt of the agreement through the company’s training module. This electronic prompt informed employees that their consent would be deemed from their continued employment and requested their electronic acknowledgement. Termination of Skuse and Lawsuit Pfizer hired Amy Skuse in 2012 as a flight attendant at its aviation facility in West Trenton, New Jersey. On August 11, 2017, Pfizer terminated Skuse after she refused to be vaccinated for yellow fever. Skuse, as a Buddhist, objected on the basis that the vaccine contained animal products. She subsequently filed suit against Pfizer alleging that she was terminated in violation of the New Jersey Law Against Discrimination (the “LAD”), and that the vaccination requirement constituted religious discrimination. Pfizer moved to dismiss Skuse’s lawsuit based upon the arbitration agreement. The trial court dismissed the complaint, but the Appellate Division reversed and reinstated it based upon the following: 1) the agreement was circulated by email; 2) Pfizer’s used the term “training activity” to describe the agreement in its module; and 3) Skuse was asked only to “acknowledge” the agreement, not to “agree” to it. The New Jersey Supreme Court’s Decision The Supreme Court reversed the Appellate Division and held that Skuse was contractually obligated to pursue her claims in arbitration rather than court. It addressed each of the Appellate Division’s justifications. Most significantly, however, it rejected the notion that e-mail, or other electronic communication is, by law, an improper means of communication and reaffirmed the propriety of electronic agreements. Left undisturbed, the Appellate Division holding would have been far-reaching. Although Skuse conceded that she had, in fact, read the emails, the Appellate Division, to support its holding, took judicial notice that people frequently skim emails due to the volume received. While the New Jersey Supreme Court conceded that people do, in fact receive many emails, it did not believe that this alone was a basis to invalidate the agreement. Having determined that electronic communication was appropriate, the Court then held that the agreement and related communications clearly and unmistakably informed Skuse that by continuing to...
read moreTips To Help Businesses Prepare To Re-Open
Written by: Susan L. Swatski, Esq. As businesses are starting to re-open their doors, workers and employers need to prepare their workplaces for the new normal to try to keep everyone as healthy as possible in the new COVID-19 reality. These are challenging times to be sure and we’re here to help you navigate them by providing guidance on key legal issues to consider as you re-open your business. 1. Employer Screening of Employees for COVID-19 The Equal Employment Opportunity Commission (EEOC) recently provided guidance that expressly permits employee screening and stating that such screening does not violate the Americans with Disabilities Act (ADA) provided any mandatory medical test is job-related and consistent with business necessity. In the case of COVID-19, the virus poses a direct threat to the health of others thereby satisfying the business necessity standard. Temperature testing is the most common type of screening being performed by employers. Such screening must be conducted on a nondiscriminatory basis, meaning all employees must be tested. Test results should be retained as confidential medical records. The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that she has the disease or suspects she has the disease, or the employer’s notes or other documentation obtained by questioning an employee about symptoms. The screening may not be broader than necessary to address the threat. Employers should not ask employees to disclose whether they have a compromised immune system or other chronic health conditions as these are improper disability-related inquiries under the ADA and New Jersey Law Against Discrimination. Employers should have a policy in place for employees who refuse to submit to screening. An employer may need to consider barring access to the workplace for an employee who refuses to cooperate. Consider having employees consent in writing to the screening and acknowledging that the screening is not a diagnostic test. Employers must pay employees for the time while they are waiting to be tested. An employer may disclose the name of an employee to a public health agency when it learns that the employee has COVID-19. 2. Undue Hardship in Response to a Request for an Accommodation The EEOC has clarified what constitutes an “undue Hardship” during the era of COVID-19 when responding to a request for a workplace accommodation for an individual with a disability. Specifically, the EEOC confirmed that the employer’s loss of income due to the pandemic is a relevant consideration, as well as, whether there is an expected date that current restrictions on an employer’s operations will be lifted. Employers must still weigh the cost of an accommodation against its current budget and engage in the interactive process with the employee requesting the accommodation. Where an employee with a disability needs a related reasonable accommodation (e.g., non-latex gloves) or a religious accommodation (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship. Although many people feel significant stress due to the COVID-19 pandemic, employees with certain pre-existing mental health conditions (e.g. anxiety disorder), may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic. As with any accommodation...
read moreThe Coronavirus Aid, Response, and Economic Security Act “CARES Act”
Written by: Susan L. Swatski, Esq. The following is a brief summary of the CARES Act. Health Care Clarifies that all testing for coronavirus (COVID-19) is to be covered by private insurance plans without cost sharing. The Act covers all services provided during a medical visit, including an in-person or telehealth visit to a doctor’s office or an emergency room, that results in coronavirus screening. This coverage is in effect only while there is a declared public health emergency. Changes the use of health savings accounts (HSAs) paired with high-deductible health plans (HDHPs) by allowing a HDHP with a HSA to cover telehealth services prior to a patient reaching the deductible. Includes certain over-the-counter medical products, without a prescription, as “qualified expenses” under HSAs, Flexible Spending Accounts, Archer medical savings accounts and health reimbursement arrangements. This benefit applies to all amounts paid or expenses incurred after December 31, 2019. Allows an employee who was laid off on or after April 1, 2020 to have access to paid family and medical leave in certain instances if they are rehired by the employer. Allows employers to receive an advance tax credit from the Department of Treasury instead of having to be reimbursed on the back end. Creates regulatory authority to implement tax credit advancements. Amends Section 518 of ERISA to provide the Department of Labor the ability to postpone certain ERISA filing deadlines for a period of up to one year in the case of a public health emergency. Unemployment Insurance Creates a new Pandemic Unemployment Assistance program (“PUA”) to help those not traditionally eligible for Unemployment Insurance (UI), including self-employed individuals, independent contractors, those with limited work history and those who are unable to work as a result of the coronavirus public health emergency. PUA is available through December 31, 2020. PUA pays 50% of the unemployment insurance costs incurred by state, local and tribal governments and non-profit organizations that would otherwise not be part of the UI system. Provides additional $600/week payment to each UI or PUA recipient through the end of July 2020. Provides funding for the 1st week of unemployment for states to waive the traditional “waiting week” before benefits begin. Provides an additional 13 weeks of unemployment to help those who remain unemployed after weeks of state unemployment are no longer available. Retirement Waives the 10% tax on early withdrawals up to $100,000 from a retirement plan or an IRA made on or after January 1, 2020 for an individual: who is diagnosed with COVID-19; whose spouse or dependent is diagnosed with COVID-19; who experiences adverse financial consequences as a result of: being quarantined, furloughed, laid off, having work hours reduced, being unable to work due to lack of child care due to COVID-19, closing or reducing hours of a business owned or operated by the individual due to COVID-19; or other factors as determined by the Treasury Secretary. Permits individuals to pay tax on the income from the distribution over a three-year period and allows individuals to repay that amount tax-free back into the plan over the next three years. Doubles the current retirement plan loan limits to the lesser of $100,000 or 100% of the participant’s vested account balance in the plan. Individuals with an outstanding loan from their plan with a repayment due from the date...
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