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Wages Employers frequently face a rash of absences and call-offs in the wake of a natural disaster. Generally, whether a business is required to pay an employee who misses work depends on whether the employee is exempt or non-exempt under the Fair Labor Standards Act (“FLSA”). If an exempt employee misses work for personal reasons, but the business remains open, the employer may deduct a full day’s salary. This includes absences due to transportation problems caused by weather. Likewise, a business is not required to pay a non-exempt employee for time not worked. If a business is closed due to…
Following on the heels of a much publicized incident in high school athletics, the New Jersey Division of Rights (“DCR”) issued enforcement guidance (“Guidance”) clarifying and explaining discrimination based on hairstyles, “with a particular focus on hairstyles closely associated with Black people.” The Guidance follows an incident where a high school African-American wrestler was told by a referee that he must choose between cutting his dreadlocks or forfeiting the match. According to the DCR the New Jersey Law Against Discrimination’s (“LAD”) “prohibition on discrimination based on race encompasses discrimination that is ostensibly based on hairstyles that are inextricably intertwined with…
On September 20, 2019, the Tenth Circuit held that cannabis industry employers are subject to the Fair Labor Standards Act (FLSA). Defendant contended that because the employer’s employment activities are in violation of the Controlled Substances Act, the FLSA’s protections to do not apply to its workers.  This argument was soundly rejected by the Tenth Circuit – putting cannabis industry employers on notice that the FLSA and most likely other federal workplace protections apply to workers in the cannabis space.     Earlier this year we discussed the case, Kenney v. Helix TCS, Inc., at the time the appeal was first argued. …
Language in Performance Bond Critical in Determining Surety’s Rights to Complete If an owner terminates a contractor due to a contractor default on a bonded project, can the surety hire the same contractor to complete the work under the bond?  Depending on the language of the bond, it may be permissible in Florida. Recently, in Seawatch at Marathon Condominium Association, Inc. v. The Guarantee Company of North America, No. 3D18-1337, 2019 WL 4850194 (Fla. 3d DCA Oct. 2, 2019), a Florida appellate court ruled that the unambiguous terms of an AIA A312 Performance Bond permitted a surety to propose a…
On October 2, 2019, the Supreme Court declined to review a 9th Circuit decision in a website accessibility lawsuit, Robles v. Domino’s. The 9th Circuit decision had reversed a grant of summary judgment and held that ADA Title III did potentially require that services of a place of public accommodations offered through websites and mobile apps, such as ordering pizza for delivery, be accessible, and remanded the case. Domino’s, supported by many major business groups, asked the Supreme Court to take the case and to provide direction on the application of the ADA to websites and other digital platforms. Many…
On September 27, 2019, Francis Suarez, the Mayor of Miami, sponsored an OZ Expo conference for the City of Miami.  Prior to the conference, one of our clients hosted a lunch for the dignitaries who attended the conference that included Secretary of HUD Dr. Ben Carson, Mayor Francis Suarez, the Acting Administrator of the of SBA for the United States, Chris Pilkerton, as well as national and local representatives of the SBA, representatives from HUD, representatives from the Opportunity Zone Division of the Federal Government including Scott Turner, Executive Director, White House Opportunity and Revitalization Council, representatives of the local…
Labor Law Update: Contractors Lawfully Prohibited From Leafleting on Third Party Premises On August 23, 2019, the National Labor Relations Board (“NLRB”) determined that property owners may prohibit non-employees from accessing their premises to engage in conduct that could be protected by federal labor law. This ruling is consistent with other decisions recently issued by the NLRB, which have overturned longstanding precedent in favor of more employer-friendly standards. In February 2017, the Tobin Center for the Performance Arts (“Tobin Center”) refused to let off-duty workers employed by the San Antonio Symphony (“Symphony”), a licensee of the Tobin Center, use Tobin…
In Response to Vaping-Related Deaths and Injuries, Trump Administration To Ban Flavored E-Cigarettes; Impact on CBD an Open Question On Wednesday, September 11, 2019, in response to a number of highly-publicized vaping-related deaths and illnesses, the Trump Administration (the Administration) announced its intention to ban most flavored e-cigarette products.  While the Administration’s proposal would target nicotine-containing e-cigarettes, regulated by the U.S. Food and Drug Administration (FDA or the Agency) as tobacco products, it is not yet clear that these are the products that have been causing vaping-related deaths and illnesses across the country.  Although federal and state regulators continue to…
Artificial intelligence (AI) allows computers to mimic tasks typically performed by humans. The use of AI in many industries results from its ability to digest a large volume of data in a short amount of time. The insurance industry has great potential to use AI to provide more personalized solutions for customer needs. Kara Pike, an associate in the firm’s Insurance Practice, talks about how companies may use AI in the distribution of insurance, as well as regulatory concerns that have been raised. [embedded content] For more information on our InsurTech Practice, click here.…
Insurers Beware: Choice of Law Provisions May be Overridden by Public Policy Provisions In answering two questions posed to it by the Ninth Circuit Court of Appeals, the California Supreme Court on August 29, 2019, addressed two significant issues: 1) whether California’s common law notice-prejudice rule is a fundamental public policy for the purpose of choice of law analysis; and 2) if so, whether the notice-prejudice rule applies to the consent provision of the insurance policy in the case before the court. Pitzer College v. Indian Harbor Insurance Company, 2:13-cv-05863-GW-E (Cal. 2019). The “notice-prejudice rule” requires that if an…
Effective August 20, 2019, Illinois law provides that a maximum of 10 percent retainage may be withheld from payments under private construction contracts and, after the contract is one-half complete, retainage must be reduced to 5 percent and kept at 5 percent for the remainder of the contract.  With this new law, Illinois joins the vast majority of states that have enacted laws pertaining to retainage on construction contracts.  Like almost every other state, Illinois’ retainage restrictions are unique to Illinois and, therefore, parties to Illinois construction contracts should understand how the new law will impact their projects.  This article…
The U.S. Attorney’s Office for the Middle District Florida settled its allegations against a Central Florida contractor accused of violating the Small Business Administration’s regulations by allegedly creating a sham joint venture to be awarded a project. Click here for more information about the settlement. NASA sought bids for a demolition project that was funded by the Small Business Administration (“SBA”).  A requirement of the project was that it be awarded to a business that was qualified as a small business enterprise (“SBE”).  In order to qualify, Sunrise Systems of Brevard, Inc. (“Sunrise”) formed a joint venture with V&R Enterprises…
On August 8, 2019, the Department of Labor (DOL) released an Opinion Letter clarifying that parents of students with special education needs may take leave under the Family Medical Leave Act (FMLA) to attend a meeting related to addressing those needs. Importantly, the DOL stated that its analysis and conclusion apply to “any meetings held pursuant to the [Individuals with Disabilities Education Act], and any applicable state or local law, regardless of the term used for such meetings.” The individual who requested the opinion letter stated that their two children had serious health conditions under the FMLA, and that their…
New York State Overhauls Harassment Laws Making it Easier to Bring Employers to Court Earlier this summer the New York State Senate and Assembly passed a bill aimed to amend the New York State Human Rights Law (NYSHRL) and the N.Y. Civil Practice Law and Rules (CPLR) to combat harassment and provide substantial new protections for workers. Governor Cuomo signed the bill into law on August 12, 2019. The following provisions highlight the major changes that employers should immediately prepare for: Lowering the Standard to Prove Harassment Traditionally courts have held that hostile work environment claims under the NYSHRL are…
New Jersey Appellate Division Curtails Prior Holdings Exempting “Semi-Professionals” from the Consumer Fraud Act In a recent published decision, Shaw v. Shand,1 the New Jersey Appellate Division held that licensed semi-professionals are not “learned professionals” exempt from liability under the Consumer Fraud Act (“CFA”)2 simply because they are subject to an independent statutory or regulatory scheme.  Shaw was an appeal from a trial court decision entering summary judgment on the plaintiffs’ CFA claims in favor of a home inspector, holding that home inspectors are “semi-professionals” exempt from the CFA. The “semi-professional” exemption was articulated by the Appellate Division in a…
Developer is Not Indemnified for its Own Conduct Without an Express Agreement in the Indemnification Clause In a case where the jury found both the Architect and the Developer separately responsible for Plaintiff’s damages, an Appellate Division of the New Jersey Superior Court recently held that the Developer is not entitled to be indemnified by the Architect.  See Grandview at Riverwalk Port Imperial Condo. Ass’n, Inc. v. K. Hovnanian at Port Imperial Urban Renewal II, LLC, No. A-2308-17T2, 2019 WL 3798427 (N.J. Super. Ct. App. Div. Aug. 13, 2019)(unpublished decision). The appellate court agreed with the Developer’s argument that the…