Publications — Page 21 of 47 — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

The Importance of Beneficiary Designations in Estate Planning

Published on: October 4, 2019 | by Anne Marie Robbins

When a person signs a will (or a will coupled with a revocable trust) in order to set forth a plan for the distribution of his or her estate following death, he or she often believes the estate plan is complete. But if the person has failed to carefully consider the beneficiary designations on life insurance policies, retirement accounts, and other assets, and coordinate those designations with the estate plan, the result following death may be quite different from what was intended.

Wills do not override beneficiary designations; rather, beneficiary designations ordinarily take precedence over wills. For example, if a will leaves everything a testator owns at the time of death to the spouse, and testator has a $1 million life insurance policy on which the couple’s three children have been designated as equal beneficiaries, the life insurance passes to the children at testator’s death, not to the spouse. This result arises because the language of the will works only to distribute the assets that are part of the testator’s “probate estate,” meaning those assets in testator’s sole name without beneficiary designations.

Examples of assets not part of the probate estate are assets with beneficiary designations (usually life insurance and retirement accounts, and sometimes bank and brokerage accounts), any assets with a “POD” (pay on death) or “TOD” (transfer on death) designation, and any assets titled in the names of two or more people as “joint tenants with right of survivorship” or “tenants by the entireties.”

Failing to Pay Appropriate Wages, Keep Appropriate Records and Retaliating Against Complaining Employees Can Now Land You in Jail

Published on: September 24, 2019 | by Kathleen M. Connelly

New Jersey has adopted one of the strongest wage theft laws in the country and jumps to the forefront in protecting employee wages. Effective November 1, 2019, New Jersey employers will face enhanced civil and criminal penalties, including possible jail time, for failing to pay employees in accordance with the New Jersey Wage and Hour Law, the New Jersey Wage Payment Law and the New Jersey Wage Collection Law.

Enhanced Penalties for Violators: Under the new Wage Theft Act, an employer who fails to pay minimum wage or the agreed-upon wages to an employee, any overtime compensation due the employee, or pay the employee in a manner required by law (e.g., paying employees in cash without deducting appropriate taxes) is liable to the aggrieved employee for the full amount of the wages owed plus liquidated damages up to 200%, costs of the litigation and attorneys’ fees. An employer seeking to avoid liquidated damages must 1) be a first-time offender; 2) demonstrate that the failure to pay appropriate wages was an inadvertent, good faith mistake, and 3) acknowledge that it violated New Jersey wage laws and pay the amount owed within 30 days. An agreement between the employer and employee to work for less wages than required by law is not a defense to a violation.

In addition, violators face enhanced fines of $500 and 20% of the owed wages for a first offense, increased to $1,000 and 20% for each subsequent offense, and administrative penalties ranging from $250 for a first violation to $500 for every subsequent violation.

New Jersey’s New Death with Dignity Act Explained

Published on: September 16, 2019 | by Elizabeth Candido Petite

New Jersey’s passage of the “Aid in Dying for the Terminally Ill Act” makes it the eighth state in the nation to allow terminally ill patients to request medication to end their lives. The bill was signed into law by Governor Murphy on April 12, 2019, and became effective on August 1, 2019.

In brief, the new law allows New Jersey residents who are terminally ill to obtain medication from their physician that will likely result in death a few hours after it is ingested. Specifically, the law requires:

The person must be a “qualified terminally ill patient,” which is defined as a capable adult who is in the terminal stage of an irreversibly fatal illness, disease, or condition with a prognosis, based upon reasonable medical certainty, of a life expectancy of six months or less. This status must be determined by the person’s attending physician and confirmed by a consulting physician.

Why Bring Lawyers In? – Attorney-Client Privilege Can Be Crucial for Businesses’ Protection

Published on: September 9, 2019 | by Robert W. Anderson

Robert Anderson, a shareholder at Lindabury, McCormick, Estabrook & Cooper and a member of the firm’s Cybersecurity & Data Privacy practice group was recently questioned by Tom Hughes of ROI-NJ, regarding the reasons a business should consult an attorney to oversee cybersecurity planning and preparation. In short; the answer is: attorney-client privilege.

If you have a breach and your company gets sued — and it will, Anderson said — having all of your preparation protected could result in huge savings of both money and reputation. Anderson, speaking at a recent ROI-NJ Thought Leadership Series panel, explained how. “When you’re first starting to put together a program to protect your company, one of the things that you will typically want to do is hire someone called an ethical hacker, who will try to get into your system,” he said. “The results of this kind of a penetration testing that determines the vulnerabilities and weaknesses in your system will be in a report that goes on for pages and pages of all the problems in your system. If you do end up with an attack and end up in litigation, Exhibit A in the litigation is going to be this detailed report that shows all the vulnerabilities of your system, and they’ll be able to see how you elected to prioritize the problems. “The litigants are then going to say you knew you had these vulnerabilities and spot the one you didn’t fix.” Having legal counsel order the penetration test would likely shield that document by virtue of attorney-client privilege, Anderson said.

You may visit ROI-NJ to read the full article or download a copy here.

Immediate Impact of the New Jersey Hemp Farming Act

Published on: August 13, 2019 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

With more than 750,000 acres in farmland, hemp has long been viewed as a viable crop for the Garden State as it would allow farmers to diversify their products and earn additional profits.

In the wake of the 2014 Farm Bill, New Jersey passed its Industrial Hemp Pilot Program, whereby certain individuals partnered with educational institutions to cultivate, process, research, test, and market safe and effective industrial hemp. The passage of the 2018 Farm Bill removed hemp from the Controlled Substances Act and it is now regulated as an agricultural commodity by the United States Department of Agriculture (USDOA).

Upon the passage of this bill, lawmakers sought to repeal the New Jersey Industrial Pilot Program and replace it with the New Jersey Hemp Farming Act, which would establish a program for cultivation, processing, transport, and sale of hemp to be administered by the New Jersey Department of Agriculture (NJDOA).

NJ Hemp Farming Act

Published on: August 13, 2019 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

A5322, known as the “New Jersey Hemp Farming Act” finally became law on Friday August 9, 2019. The New Jersey Hemp Farming Act (“NJHFA”) establishes a program for the cultivation, handling, processing, transport, and sale of hemp and hemp products in the State in accordance with federal law. The bill also repeals New Jersey’s hemp pilot program, and replaces it with a permanent program, administered by the New Jersey Department of Agriculture that complies with federal law.

Just like the 2018 Farm Bill, NJHFA defines “hemp” the plant Cannabis sativa L., any part of the plant, and all derivatives thereof with a delta-9 tetrahydrocannabinol (“THC”) concentration of not more than 0.3 percent, consistent with federal law. In other words, if the hemp has more than .3 percent THC, it will no longer be legal on a state or federal level.

Because hemp is a viable agricultural crop and the state wants to promote the cultivation and processing of hemp, the New Jersey now allows famers and businesses to cultivate (plant, grow, or harvest), handle (possessing or storing – exclusive of finished hemp products), process (convert hemp into a marketable form) and sell hemp products for commercial purposes. Farmers and businesses looking to cultivate, handle, process and sell hemp products for commercial purposes must submit an application to the New Jersey Department of Agriculture (“NJDOA”). The application must contain GPS coordinates of the hemp farm, written consent from the cultivator allowing law enforcement and other officials to enter the property at will, a criminal background check of the applicant, and a non-refundable application fee. Other information may be required by the NJDOA as they implement this application process.

How One Hashtag Transformed the Law

Published on: August 8, 2019 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

It has been nearly two years since the viral #MeToo tweet that sparked a national debate about sexual harassment in the workplace. While #MeToo has not changed the legal standard by which sexual harassment is defined in New Jersey, it has had a dramatic impact on the way sexual harassment is perceived and tolerated in our culture. Perhaps the movement’s biggest impact can be seen in the passage of both federal and state legislation aimed at providing greater protections to victims of workplace sexual harassment. This article takes a closer look at these legislative initiatives as well as potential changes on the horizon.

Federal Legislation

2017 Tax Cuts & Jobs Act

Kathleen M. Connelly Quoted in ROI-NJ – “Drug Dilemma”

Published on: July 29, 2019 | by Kathleen M. Connelly

Kathleen M. Connelly, a member of Lindabury’s Employment Law practice group, was recently interviewed by ROI-NJ regarding the Jake Honig Compassionate Use Medical Cannabis Act, which was signed into law by Gov. Phil Murphy on July 2nd. New Jersey joins a growing list of states enforcing workplace protections for medical marijuana users. Kathleen said the difficulty from the employer standpoint is the tension between understanding that people see benefits from cannabis in medical treatment but also needing to ensure these individuals aren’t under the influence while performing job duties.

You can read the full article here.

New Jersey Employees Now Accorded Expanded Family Leave Rights

Published on: July 23, 2019 | by Kathleen M. Connelly

In February of 2019 Governor Murphy signed into law sweeping legislation that significantly expands employee rights to family leave entitlements, provides greater family leave insurance benefits to employees during a leave, expands the definition of “family members,” and finally, provides greater job security to individuals taking family leave. It is critical for employers to understand the multiple changes resulting from this this legislation to ensure that employee’s rights are not being violated.

Amendments to the New Jersey Family Leave Act: While most employers are aware that those with 50 or more employees are covered by the federal Family and Medical Leave Act (FMLA) that accords employees 12 weeks of protected unpaid leave for personal medical leave, or to care for a newborn/newly adopted child or family member with a serious medical condition, many are unaware that New Jersey also has a similar Family Leave Act (NJFLA) that likewise applied to employers of 50 or more and accords 12 weeks of protected unpaid leave to qualifying employees. However, unlike the FMLA, NJFLA leave is only available for bonding with a newborn or newly adopted child, or to care for a family member with serious medical condition; the employee has no personal medical leave rights available under the NJFLA.

Effective June 30, 2019, the employee headcount for coverage under the NJFLA dropped from 50 to 30 employees, taking it out of alignment with the FMLA and making many more small employers subject to the requirements of the NJFLA to provide guaranteed protected bonding and family medical leave to qualifying employees. The amendments further expanded the NJFLA to include family leave in connection with the placement of a child into foster care with the employee or the birth of a child conceived using a gestational carrier agreement; in addition, leave in connection with the birth or adoption of a child which rights were available to employees prior to the amendments.

How “Final” is a Final Restraining Order?

Published on: July 8, 2019 | by James McGlew, II

Since its’ passage in 1991, the Prevention of Domestic Violence Act or “PDVA” has afforded protection to New Jersey residents who have been the victim of domestic violence. The PDVA has been amended and interpreted on countless occasions over the years and is one of the most strict and protective laws of its kind in the country.

If an individual alleges that they have been the victim of domestic violence and can demonstrate this to a Judge, an emergent Order of protection will be entered. This temporary restraining order or “TRO” will be issued and served upon the other party who will then be restrained from having any contact with the complaining party. At the same time the matter will be scheduled for a hearing, to occur in approximately ten days, where testimony will be taken under oath to determine whether an act of domestic violence occurred. At the conclusion of the hearing the Court will determine whether an act of domestic violence occurred and, if so, the terms of the temporary restraining order will become final and/or modified as final. If the Court finds that an act or acts of domestic violence occurred, the Court has the authority to impose a variety of restrictions and prohibitions in what will become a Final Restraining Order or “FRO.”

Over the years I have had both plaintiffs and defendants inquire as to how “final“ their Final Restraining Order or FRO actually is. The answer varies from state to state.