In New Jersey, the rate of interest upon the loan or forbearance of any money, wares, merchandise, goods or chattels may not exceed 6% per year, or when there is a written contract specifying a rate of interest, 16% per year.  N.J.S.A. § 31:1-1.

That is, in New Jersey, when the agreement is oral, charging interest of more than 6% per year is civil usury.  In New Jersey, when there is a written agreement and the agreement specifies the interest rate, charging interest of more than 16% per year is civil usury.

A lender who charges a rate of interest higher than the applicable rate which N.J.S.A. § 31:1-1 allows forfeits all interest and is entitled to recover only the principal of the loan.  N.J.S.A. § 31:1-3.  Further, if the borrower has paid interest in excess of the applicable rate which N.J.S.A. § 31:1-1 permits, that illegal interest is deducted from the principal of the loan owed to the usurer.  N.J.S.A. § 31:1-3.

N.J.S.A. § 2C:21-19 makes it a criminal offense to charge, take from, or receive, from any individual, interest at a rate exceeding 30% per year.  Further, N.J.S.A. § 2C:21-19 renders it a criminal offense to charge, take from, or receive, from any corporation, limited liability company (an “LLC”), or limited liability partnership (an “LLP”), interest at a rate exceeding 50% per year.

In other words, in New Jersey, charging, taking from, or receiving, from any individual, interest of more than 30% per year is criminal usury.  So, too, in New Jersey, charging, taking from, or receiving, from any corporation, LLC, or LLP, interest of more than 50% per year is criminal usury.

Criminal usury is a crime of the second degree if the rate of interest on the loan is more than 50% per year.  N.J.S.A. § 2C:21-19(a).  Criminal usury is a crime of the third degree if the interest rate on any loan made to any individual is more than 30% per year but less than 50% per year.  Id. § 2C:21-19(a).

There are numerous exemptions from New Jersey’s (6% or 16%) civil usury provisions, but few exemptions from the Garden State’s (30% or 50%) criminal usury provisions.  The below-discussed exemptions from New Jersey’s civil usury limitations are illustrative but not exhaustive.

Corporations, limited liability companies, and limited liability partnerships  borrowing money cannot interpose the defense of civil usury in a civil action.  N.J.S.A. § 31:1-6.

Loans or forbearances of $50,000 or more, except for loans secured by a first lien on residential real property, are exempt from the (6% or 16%) civil usury statute.  N.J.S.A. § 31:1-1(e)(1).

The New Jersey courts have held that purchases under revolving credit accounts, installment loan purchases, and purchases under credit card accounts are exempted from the State’s civil usury statute under what is termed the “time-price differential” doctrine.  See, e.g., Steffenauer v. Mytelka & Rose, Inc., 87 N.J. Super. 506, 510-517, 210 A.2d 88 (N.J. App. Div. 1965) (installment agreement and note, in the principal amount of $12,480, for purchase and sale of coin-operated dry cleaning equipment is exempted from New Jersey’s civil usury statute), aff’d per curiam, 46 N.J. 299, 216 A.2d 585 (N.J. 1966)

However, the interest rates charged in retail installment contracts for the purchase of goods having a cash price of $10,000 or less are regulated by the New Jersey Retail Installment Sales Act, N.J.S.A. §§ 17:16C-1 – 17:16C-61.  See N.J.S.A. §§ 17:16C-1(b), 17:16C-1(l), 17:16C-41.

For an explanation what rate of interest a company may lawfully charge in New York, see this author’s January 4, 2011 blog post.

If your company wants to bring, or needs a lawyer to defend it in, business litigation and you are located in the New York City area, call Attorney David S. Rich at (212) 209-3972.

The federal Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (the “FLSA”), and its implementing regulations, 29 C.F.R. §§ 510 et seq., mandate that most workers in the U.S. be paid at least the federal minimum wage of $7.25 per hour for all hours worked and overtime compensation at 1½ times the regular rate of pay for all hours worked in excess of 40 hours in a workweek.

However, the FLSA sets forth exemptions from both minimum wage and overtime pay for domestic service employees employed “to provide companionship services for” the young, elderly, or infirm.  See FLSA § 13(a)(15), 29 U.S.C. § 213(a)(15).

So, too, the FLSA carves out an exemption from overtime pay for any employee, employed “in domestic service in a household,” “who resides in that household.”  FLSA § 13(b)(21), 29 U.S.C. § 213(b)(21).

In December 2011, the U.S. Department of Labor proposed regulations requiring third-party employers of domestic “companionship” employees, and third-party employers of live-in domestic employees, to pay the minimum wage and overtime compensation to these employees.

The U.S. Department of Labor’s proposed regulations cover, among other third-party employers, staffing agencies which employ home health aides.

The federal regulations under consideration provide that an individual or member of the family or household using the services of a domestic “companionship” employee remains entitled to raise the minimum wage and overtime exemptions under FLSA § 13(a)(15).  Proposed 29 C.F.R. § 552.109(a).  This is so even if the individual or member of the family or household is considered a joint employer.

Similarly, the proposed federal rules state that an individual or member of the family or household using the services of a live-in domestic employee is still entitled to assert the overtime pay exemption under FLSA § 13(b)(21).  Proposed 29 C.F.R. § 552.109(c).  This is the case even if the individual or member of the family or household is considered a joint employer.

For 60 days, the U.S. Department of Labor is seeking, from interested parties, written comments on the proposed rules.

The proposed federal regulations would increase, beyond the strictures of New York law, the number of hours in a workweek worked by live-in domestic workers for which such workers are entitled to be paid overtime.  Because the proposed federal rules would give rise to a difference between federal law and New York law, the law more beneficial to the worker (that is, federal law) would govern employers in New York.

Specifically, under New York law, most domestic workers are entitled to be paid overtime compensation at a rate that is 1½ times their regular, “straight-time” hourly rate of pay for all time in excess of 40 hours in a payroll week, except that live-in domestic workers are entitled to receive overtime pay for all time in excess of 44 hours in a week.  See N.Y. Labor Law §§ 2(16), 170; 12 N.Y.C.R.R. § 142-2-2.

Call the Law Offices of David S. Rich, LLC at (212) 209-3972 to speak with a knowledgeable labor and employment lawyer about ensuring that your company complies with overtime pay and other wage and hour laws, or to retain a skilled overtime attorney to defend your company in unpaid overtime lawsuits or other wage and hour litigation.

With certain exceptions, a business in New Jersey may fire or refuse to hire a person because of his or her lawful, off-duty, political or recreational activities.

Specifically, in New Jersey, employers may not refuse to hire or employ any individual and may not discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions or other privileges of employment because that individual does or does not smoke or use other tobacco products, unless the employer has a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee or prospective employee.  N.J.S.A. § 34:6B-1; see N.J.S.A. §§ 34:6B-2 – 34:6B-4.

Further, under New Jersey’s public policy exception to at-will employment, “an employee has a cause of action [in tort or contract or both] for wrongful discharge when the discharge is contrary to a clear mandate of public policy.”  Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (N.J. 1980).  Research reveals only two court decisions addressing the extent to which, under New Jersey law, firing an employee because of his or her lawful, off-duty conduct violates a clear mandate of public policy.  In particular:

• In Slohoda v. United Parcel Service, Inc., 193 N.J. Super. 586 (N.J. App. Div. 1984), later opinion, 297 N.J. Super. 145 (N.J. App. Div. 1986), New Jersey’s Appellate Division, reversing an order granting summary judgment for the defendant employer, remanded the case to the Superior Court for a determination of whether the employer’s termination of the plaintiff employee, a married man, for having sexual relations with a female co-worker who was not his wife “is violative of any right of privacy of the plaintiff and contrary to public policy.”  Slohoda, 193 N.J. Super. at 593-594.  The Slohoda Court observed that “Neither adultery nor fornication are any longer criminal offenses in the State of New Jersey.”  Slohoda, 193 N.J. Super. at 591 n.1.
• In Wiegand v. Motiva Enterprises, LLC, 295 F. Supp.2d 465 (D.N.J. 2003), the U.S. District Court for the District of New Jersey, granting the defendant employer’s motion for summary judgment dismissing the plaintiff employee’s wrongful termination claim, held that the defendant employer did not violate a clear mandate of public policy by terminating the plaintiff, the manager of a gas station convenience store, for owning and operating an online business which “sells racist hate music and items for commercial gain.”  Wiegand, 295 F.Supp.2d at 466-478.

The broad authority of employers in New Jersey to discharge or refuse to hire an individual because of his of her legal, off-the-job, political or recreational activities contrasts with the more limited ability of employers in a significant number of other states to terminate or refuse to hire a person for such reasons.  For example, this author’s November 22, 2010 blog post explains that, with certain exceptions, a business in New York State may neither terminate nor refuse to hire a person because of his or her lawful, off-duty, political or recreational activities.

See here for a summary, prepared by the National Conference of State Legislatures, of statutes, if any, enacted by each of the 50 states and by the District of Columbia restricting employers’ rights to fire or refuse to hire an individual because of his or her off-duty conduct.

If your company needs assistance or guidance on a labor or employment law issue and your company is located in the New York City area, call Attorney David S. Rich at (212) 209-3972.

On November 21, 2011, President Obama signed into law the federal 3% Withholding Repeal and Job Creation Act, P.L. 112-56.  Title II of the 3% Withholding Repeal and Job Creation Act is known as the Veterans Opportunity to Work to Hire Heroes Act of 2011 (the “VOW to Hire Heroes Act”).  The VOW to Hire Heroes Act, which is aimed at lowering the high rate of unemployment among war veterans, gives employers financial incentives to hire out-of-work or disabled veterans.

The final text of the 3% Withholding Repeal and Job Creation Act does not yet appear to be available online.  However, the U.S. House of Representatives’ version of the bill, H.R. 674, is linked here.

The VOW to Hire Heroes Act establishes new tax credits for businesses which hire veterans who are out of work and/or who suffer from service-connected disabilities, as follows:

Short-term unemployed: Section 261(b) of the VOW to Hire Heroes Act gives an employer a tax credit of 40% of the first $6,000 of wages (up to a $2,400 credit) paid to any veteran in the first year of the veteran’s employment, if during the one-year period immediately preceding the veteran’s hiring date, the veteran endured aggregate periods of unemployment of four or more weeks but less than six months.  Section 261(b) of the VOW to Hire Heroes Act amends section 51(d)(3)(A) of the Internal Revenue Code of 1986 (the “Internal Revenue Code” or the “IRC”), 26 U.S.C. § 51(d)(3)(A).

Long-term unemployed: Sections 261(a) and 261(b) of the VOW to Hire Heroes Act confers on an employer a tax credit of 40% of the first $14,000 of first-year wages (up to a $5,600 credit) paid to any veteran, if during the one-year period immediately preceding the veteran’s hiring date, the veteran had aggregate periods of unemployment of six months or more.  Section 261(a) of the VOW to Hire Heroes Act amends section 51(b)(3) of the Internal Revenue Code, 26 U.S.C. § 51(b)(3).

Recent veterans with service-connected disabilities: Section 261(a) of the VOW to Hire Heroes Act maintains, for employers, the existing tax credit of 40% of the first $12,000 of first-year wages (up to a $4,800 credit) paid to any veteran who (i) is entitled to compensation for a service-related disability and (ii) has a hiring date which is not more than one year after having been discharged or released from active duty in the U.S. military.  This existing tax credit is set forth in section 51(b)(3) of the IRC.

Long-term unemployed veterans with service-connected disabilities: Section 261(a) of the VOW to Hire Heroes Act gives an employer a tax credit of 40% of the first $24,000 of wages (up to a $9,600 credit) paid to any veteran who (i) is entitled to compensation for a service-related disability and (ii) during the one-year period immediately preceding the veteran’s hiring date, endured aggregate periods of unemployment of six months or more.

A cynic might observe that a business can enjoy the full benefit of the VOW to Hire Heroes Act by hiring a veteran, continuing to employ that veteran merely for the number of weeks or months necessary to exhaust that Act’s applicable tax credit, and then firing the veteran.

If your company needs assistance or guidance on a labor or employment law issue and your company is located in the New York City area, call Attorney David S. Rich at (212) 209-3972.

In the world of commerce, contracts between companies often are broken, or ‘breached.’  This post discusses remedies that the the New York state courts, and federal courts situated in New York, frequently grant to a business aggrieved by another party’s breach of the contract between them.

See here for the elements of a cause of action for breach of contract in New York.

Damages

In New York, an award of money damages is the relief most frequently granted for breach of contract.  That is, the court requires the breaching party to pay money to the non-breaching party.  The categories of money damages for violation of an agreement include the following:

Compensatory damages “place the nonbreaching party in as good a position as it would have been had the contract been performed.”  Brushton-Moira Cent. School Dist. v. Fred H. Thomas Assocs., P.C., 91 N.Y.2d 256, 261, 692 N.E.2d 551, 669 N.Y.S.2d 520 (N.Y. 1998).

Punitive damages are damages on an increased scale, awarded to the injured business over and above what will barely compensate it for its property loss.  In New York, punitive damages may not be recovered for mere breach of contract, even where the breach of contract was intentional.  Rather, punitive damages may be recovered in a breach of contract action only where the breach involves fraudulent behavior “evincing a ‘high degree of moral turpitude’ and . . . ’such wanton dishonesty as to imply a criminal indifference to civil obligations,’ ” and where “the conduct was ‘aimed at the public generally.’ “  Rocanova v. Equitable Life Assurance Soc’y, 83 N.Y.2d 603, 613, 634 N.E.2d 940, 612 N.Y.S.2d 339 (1994) (citation omitted).

Nominal damages are a trifling sum awarded to the non-breaching party where there is proof of breach of the contract, but where there is no substantial loss or injury to be compensated.

Liquidated damages are amounts which are fixed or stipulated by the parties in the agreement in the event of breach.  Courts in New York will give effect to a liquidated damages provision if the amount liquidated ” ‘is a reasonable measure of the anticipated probable harm’ ” and the damages flowing from a breach are difficult to ascertain.  See BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 396, 712 N.E.2d 1220, 690 N.Y.S.2d 854 (N.Y. 1999) (citation omitted).

Specific Performance

Specific performance is the remedy of requiring exact performance of an agreement in the specific form in which it was made, or according to the precise terms agreed upon.  In New York, specific performance is available “where the amount of damages is difficult to ascertain, based on the unique nature of the subject matter of the contract or agreement or the lack of an established market value.”  JMG Custom Homes, Inc. v. Ryan, 45 A.D.3d 1278, 1281, 844 N.Y.S.2d 817 (4th Dep’t 2007).    By contrast, specific performance generally is not available “when money damages are sufficient to protect the interests” of the injured company.  JMG Custom Homes, Inc., 45 A.D.3d at 1281.

If your company wants to bring, or needs a lawyer to defend it in, business litigation and you are located in the New York City area, call Attorney David S. Rich at (212) 209-3972.

A business located in New York City must abide by anti-discrimination laws in refusing to retain or ceasing to retain an independent contractor.  By contrast, a company located in New York State, but outside the five boroughs of New York City, need not, in declining to retain or ceasing to retain an independent contractor, conform to laws prohibiting employment discrimination.

The New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 – 8-131 (the “City Human Rights Law”), bars “employer[s]” with four or more persons in their “employ” from discharging from “employment” or refusing to hire or “employ” an individual, and from discriminating against an individual in compensation or in terms, conditions or privileges of “employment,” because of the individual’s actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage, or citizenship status.  N.Y. City Admin. Code § 8-107(1)(a); see N.Y. City Admin. Code § 8-102(5).

Under the City Human Rights Law, independent contractors are counted as employees of a company and may maintain employment discrimination claims against that company, if they are “natural persons employed as independent contractors to carry out work in furtherance of an employer’s business enterprise who are not themselves employers.”  N.Y.C. Admin. Code § 8-102(5).

As a result, a business within New York City may not refuse to retain or cease to retain an independent contractor because of the independent contractor’s actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage, or citizenship status.  In other words, a business in New York City may not take a retention-related action with regard to an independent contractor because of the independent contractor’s actual or perceived membership in any of the categories protected by the City Human Rights Law.

The New York State Human Rights Law, N.Y. Exec. Law §§ 290-301 (the “State Human Rights Law”) bars “employer[s]” with four or more persons in their “employ” discharging from “employment” or refusing to hire or “employ” an individual, or from discriminating against an individual in compensation or in the terms, conditions or privileges of “employment,” because of the individual’s age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status.  N.Y. Exec. Law § 296(1)(a); see N.Y. Exec. Law § 292(5).

In sharp contrast to the City Human Rights Law, the State Human Rights Law, N.Y. Exec. Law § 296(1), “only governs discrimination in the traditional employer-employee relationship and not in the employment of independent contractors.”  Murphy v. ERA United Realty, 251 A.D.2d 469, 470, 674 N.Y.S.2d 415 (2d Dep’t 1998); see also Scott v. Massachusetts Mut. Life Ins. Co., 86 N.Y.2d 429, 433, 657 N.E.2d 769, 633 N.Y.S.2d 754 (N.Y. 1995) (affirming the Supreme Court’s order dismissing the plaintiff insurance agent’s complaint alleging that the defendant insurance company terminated her agency contract on the basis of her gender, age and marital status; noting with approval the Supreme Court’s conclusion “that plaintiff was an independent contractor not eligible for protection under Executive Law § 296(1)(a)”).

Consequently, a company located in New York State, but not within the five boroughs of New York City, lawfully may decline to retain or cease to retain an independent contractor because of the independent contractor’s age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status.  That is, a company, say, in upstate New York or on Long Island lawfully may take a retention-related action with respect to an independent contractor because of the independent contractor’s  membership in any of the classes protected by the State Human Rights Law.

A practical tip for employers in New York is warranted here.  Even though a company located in New York State but outside New York City lawfully may discriminate against supposed independent contractors because of the contractors’ membership in a protected class, it is highly risky for a company actually to do so.  This is the case because if the business fires or refuses to hire, for a reason prohibited by the State and City Human Rights Laws, an employee whom the business misclassifies as an independent contractor, the business may be held liable to the employee under these statutes.

See here for advice on determining whether, for purposes of overtime and the minimum wage, a company’s workers in New York are employees or independent contractors.

If your company needs assistance or guidance on a labor or employment law issue and your company is located in the New York City area, call Attorney David S. Rich at (212) 209-3972.

On September 7, 2011, in Waxman Real Estate LLC v. Sacks, Index No. 652057-2010, 2011 N.Y. Slip Op. 51667 (N.Y. Sup. Ct. N.Y. County Sept. 7, 2011)  (Fried, J.), the Supreme Court, New York County held that a member of a limited liability company (an “LLC”) in New York State may not, within the same causes of action, combine derivative claims, brought on behalf of the LLC, with the member’s individual claims.

A derivative claim is one that a plaintiff brings as a stockholder on behalf of the corporation or limited liability company.  In contrast, an individual claim is one that the plaintiff brings to vindicate his personal rights as an individual.

In Tzolis v. Wolff, 10 N.Y.3d 100, 102, 884 N.E.2d 1005, 1005, 855 N.Y.S.2d 6 (N.Y. 2008), the New York Court of Appeals held that “members of a limited liability company (LLC) may bring derivative suits on the LLC’s behalf . . . .”  Tzolis, 10 N.Y.3d at 102, 884 N.E.2d at 1005.

In the Waxman Real Estate LLC case, two members of an LLC engaged in the business of real estate investment sued two principals and managers of the LLC, both individually and derivatively on behalf of the LLC, for breach of contract, unjust enrichment, fraud in the inducement, breach of fiduciary duties, and injunctive relief based on, among other things, the alleged distribution, by the defendant principals and managers of the LLC, of false and misleading progress reports to investors.  The plaintiff members mixed together, within the same counts of their Complaint, derivative claims, brought on the LLC’s behalf, with the member’s individual claims.  See, e.g., Complaint ¶ 35 (alleging that “Plaintiffs and the [limited liability] Company have been irreparably injured and damaged by the foregoing wrongful acts and conduct of [the defendant principals and managers of the LLC]“).

The Waxman Real Estate LLC Court dismissed without prejudice, for failure to state a cause of action, the plaintiff members’ derivative claims.  The Supreme Court, New York County (Fried, J.) found that dismissal, without prejudice to serving and filing an amended complaint, was warranted because “plaintiffs have improperly mingled their individual claims with their derivative claims” within the same causes of action.

The Waxman Court acknowledged that “there is indeed ‘limited case law’ on whether derivative claims brought on behalf of LLCs may be intermingled with individual claims . . . .”  However, the New York County Supreme Court reasoned that, because a shareholder or a partner may not blend together, within the same causes of action, his or her individual claims with derivative claims brought on behalf of a corporation or a partnership, so too an LLC member may not conflate, within the same counts of a Complaint, his or her individual claims with derivative claims brought on behalf of the LLC.

Aggrieved members of limited liability companies in New York, and LLC members’ lawyers, should learn, from the Waxman Real Estate LLC case, the following lessons:

1. It’s OK for a member of an LLC in New York to maintain, in the same lawsuit, both (a) derivative claims brought on behalf of the LLC and (b) the member’s individual claims.  However, the counts of the member’s Complaint that allege derivative claims brought on the LLC’s behalf must be separate from the counts of Complaint that plead the member’s individual claims.  In other words, no count of the LLC member’s Complaint may contain both a derivative claim, brought on the LLC’s behalf, and an individual claim of the plaintiff member.
2. In drafting a complaint by a member of a limited liability company of New York, the LLC member’s lawyer must avoid utilizing phrases that conflate derivative and individual claims.  For example, in stating a breach of fiduciary duty claim, the LLC member’s Complaint should not allege that “[the defendant] has an obligation to [the plaintiff member] and to [the LLC's] other members to adhere to fiduciary standards of conduct and to exercise his responsibilities in good faith” or that “[the defendant] has breached his fiduciary duties to [the LLC] and [the plaintiff member].”

If your company wants to bring, or needs a lawyer to defend it in, business litigation and you are located in the New York City area, call Attorney David S. Rich at (212) 209-3972.

Though it is not required by law, the best practice for a company in New York is to retain its employees’ personnel files for the length of the employee’s employment plus five years.

This is the case, among other reasons, because an individual may file a lawsuit under the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 – 8-131 (the “NYCHRL”), for unlawful discriminatory practices in employment for up to three years after the alleged unlawful discriminatory practice, and because that three year period is tolled upon the filing of a complaint with the New York City Commission on Human Rights or the State Division of Human Rights and during the pendency of such a complaint and any court proceeding for review of the dismissal of such a complaint.  N.Y.C. Admin. Code § 8-502(d).  Such a complaint could well remain pending – and, as a result, the NYCHRL’s three-year limitations period could well be tolled — for at least two years.

A federal regulation issued under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”), under the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. (the “ADA”), and under the Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, 122 Stat. 881 (“GINA”) requires an employer to preserve all personnel or employment records it makes or keeps for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later.  29 U.S.C. § 1602.14.  The personnel or employment records encompassed by this federal regulation include, but are not necessarily limited to, requests for reasonable accommodation, application forms submitted by applicants and other records having to do with hiring, promotion, demotion, transfer, layoff or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship.  29 U.S.C. § 1602.14.

Similarly, a regulation issued under the federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the “ADEA”) requires an employer to keep personnel or employment records it makes, obtains, or uses for a period of one year from the date of the personnel action to which any records relate.  29 U.S.C. § 1627.3(b).  The personnel or employment records covered by this federal regulation include, among other things, (i) records related to job applications, resumes, or any other form of employment inquiry whenever submitted to the employer in response to the employer’s advertisement or other notice of existing or anticipated job openings, including records pertaining to the failure or refusal to hire any individual, and (ii) records related to promotion, demotion, transfer, selection for training, layoff, recall, or discharge of any employee.  29 U.S.C. § 1627.3(b)(1).

For further discussion of the New York City Human Rights Law, Title VII, the ADA, GINA, and the ADEA, see here.

If your company needs assistance or guidance on a labor or employment law issue and your company is located in the New York City area, call Attorney David S. Rich at (212) 209-3972.

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On September 6, 2011, the New Jersey Department of Labor and Workforce Development repealed its existing rules governing exemptions from overtime pay requirements for executive, administrative, professional and outside sales employees, and instead adopted by reference the analogous regulations issued under the federal Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (the “FLSA”).   See here for a copy of the rule change.  New Jersey’s regulations concerning exemptions from overtime pay requirements for private-sector employees now parallel the federal regulations set forth at 29 C.F.R. §§ 541.0 – 29 C.F.R. 541.710.   See N.J.A.C. §§ 12:56-7.1 – 12:56-7.2.

Under both the federal FLSA and the New Jersey State Wage and Hour Law, N.J.S.A. §§ 34:11-56a – 34:11-56a30, covered, non-exempt employees must receive one and one-half times the regular rate of pay for all hours worked over forty in a workweek.

New Jersey’s adoption in the private sector, as of September 2011, of the federal exemptions from overtime pay for executive, administrative, professional and outside sales employees (also known as the ‘white collar’ exemptions) is a major victory for businesses in New Jersey.

The repealed New Jersey regulations had been based on the federal overtime exemptions that were in effect before August 23, 2004.  On August 23, 2004, the U.S. Department of Labor had significantly revised the federal overtime exemption rules.  However, before September 2011, New Jersey had not amended its rules to conform to the federal overtime exemption regulations put in effect in 2004.

As a result, there had existed subtle but important differences between federal and New Jersey regulations, such that some employees were exempt from overtime pay under federal law, but not under New Jersey law.

Because New Jersey has now adopted by reference the federal, white collar exemptions from overtime compensation laws, non-governmental employers in the State of New Jersey can be certain that, if a given employee falls within the executive, administrative, professional or outside sales employee exemption from overtime pay requirements under federal law, he or she likewise is exempt from overtime pay requirements under New Jersey law.

Some of the changes wrought by New Jersey’s adoption by reference of the federal rules concerning the overtime exemptions for individuals employed as bona fide executive, administrative, professional and outside sales employees are as follows:

• Under the repealed New Jersey regulations, to qualify for the executive exemption or the administrative exemption from overtime laws,  an employee was required to devote less than 20 percent of his or her workweek to nonexempt work or less than 40 percent if employed by a retail or service establishment.  That 20%/40% requirement no longer exists.  Rather, the employer merely must show that the employee’s “primary duty” consists of exempt work.
• Similarly, under the superseded New Jersey rules, to qualify for the professional exemption or the outside sales employee exemption from overtime laws, an employee had to devote less than 20 percent of his or her workweek to nonexempt work.  That 20% requirement has been eliminated.  Again, the employer need only show that the employee’s “primary duty” consists of exempt work.
• Federal law renders exempt from overtime pay  many “highly compensated” workers who are paid total annual compensation of $100,000 or more.   Specifically, under FLSA regulations, a highly compensated employee is exempt if (i) the employee earns total annual compensation of $100,000 or more, which includes at least $455 per week paid on a salary basis, (ii) the employee’s primary duty includes performing office or non-manual work, and (iii) the employee customarily and regularly performs at least one of the exempt duties or responsibilities of an exempt executive, administrative or professional employee.
• In contrast, until September 2011, New Jersey did not recognize the highly compensated employee exemption.  Now New Jersey recognizes this exemption.

Call the Law Offices of David S. Rich, LLC at (212) 209-3972 to speak with a knowledgeable labor and employment lawyer about ensuring that your company complies with overtime pay and other wage and hour laws, or to retain a skilled overtime attorney to defend your company in unpaid overtime lawsuits or other wage and hour litigation.