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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…
Third Circuit Holds that Inclusion of “Quick Response” Codes on Envelope Violates the Fair Debt Collection Practices Act In a precedential opinion, DiNaples v. MRS BPO, LLC, the Third Circuit held that adding an unencrypted “quick response” or “QR” code to an envelope containing a debt collection letter violates 15 U.S.C. § 1692f(8) of the Fair Debt Collection Practices Act (“FDCPA”).i That section limits what collection agencies can include on envelopes, prohibiting “language or symbols” other than the debt collector’s address.   The DiNaples panel extended the Third Circuit’s 2014 decision in Douglass v. Convergent Outsourcing, which held that a…
New York Employers – New Pay Equity Laws and Hair Bias Ban May Require You to Update Your Policies The New York State Legislature and Governor Cuomo have been busy in 2019 enacting laws that will have a lasting impact on employers and workers in the Empire State for years to come. Among these are bans on inquiring about salary history, and discriminating against individuals on the basis of their natural hairstyle. Employers should understand the implications of these laws, and if necessary, amend their policies and practices accordingly. Salary History Ban and Pay Equity Law Governor Cuomo made headlines…
FDA Publishes Court-Ordered Cigarette Graphic Warning Proposed Rule, Industry Challenge Expected On August 15, 2019, the U.S. Food and Drug Administration (FDA or the Agency) published a court-ordered proposed rule that, if finalized, would mandate graphic health warnings for cigarette packaging and advertisements to “promote greater public understanding of the negative health consequences of smoking.”   FDA’s proposed warnings are undeniably graphic and feature “photo-realistic” images of “some of the lesser-known, but serious health risks of cigarette smoking,” including secondary harm to children, fatal lung disease in non-smokers, head and neck cancer, reduction of blood flow (which can lead to…
On August 6, 2019, Acting Governor Sheila Oliver signed a bill (S-1790) imposing tougher penalties for “wage theft.” The law significantly increases penalties for employers, including potential imprisonment for employers who run afoul of its provisions, and provides added protections for employee retaliation claims. The law imposes a new joint and several liability provision for client-employers and labor contractors, specifically, it declares any waiver of joint and several liability as “void and unenforceable.”  Employers need to understand the implications of the new law and ensure compliance with the State Wage and Hour Laws.     Increased Fines and Penalties: The new…
On August 8, 2019, the Minneapolis City Council unanimously passed the Wage Theft Prevention Ordinance, which reinforces safeguards for the city’s labor force. The Ordinance, which goes into effect on January 1, 2020, prohibits employers from shortchanging paychecks, attempting to make it appear that wages paid were greater than the amount actually issued, or paying wages on days other days other than regularly established paydays. It also prohibits employers from demanding that employees give any rebate or refund from their wages. The new regulation incorporates recent amendments from the state legislature, which require employers to provide employees with written notice…
Saul Ewing Blogs | District Court of Appeal of Florida Reverses Summary Judgment for Insurer on Bad Faith Claim Where Issue Remained as to Whether Insurer’s Initial Denial of Coverage Above Policy Sublimit Was Made in Good Faith X Search our Site Suggested Links…
Chicago recently joined a growing trend when City Council approved one of the broadest predictive scheduling laws in the country. The Chicago Fair Workweek Ordinance, which was passed on July 24, 2019, will go into effect beginning on July 1, 2020, and has the potential to cause headaches for companies that have workers in Chicago. The Ordinance requires employers in certain industries to provide a good faith estimate to new employees of their projected days and hours of work for the first ninety days of employment. Employers must also provide written notice of work hours by posting the work schedule…
Saul Ewing Blogs | District of Colorado Denies Insurer’s Motion for Summary Judgment on Statutory and Common Law Bad Faith Claims Where Insured Demonstrated Material Factual Issues as to Whether Insurer Acted Unreasonably in Denying Insured’s Claim X Search our Site Suggested Links…
A combination of New Jersey court decisions and legislative actions have expanded and clarified New Jersey employer obligations for employees who are registered qualifying cannabis patients. Both the New Jersey Federal District Court and the New Jersey State Appellate Division have weighed in, with the New Jersey Supreme Court recently announcing that it will review the Appellate Division ruling. Further, on July 2nd, New Jersey signed into law an amendment to the New Jersey Compassionate Use Medical Marijuana Act, now known as the Jake Honig Compassionate Use Medical Cannabis Act, which creates additional compliance obligations for employers. The Act takes…