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FMG Law Blog Line

Pay History is out for New Jersey Employers, Mostly…

Posted on: February 10th, 2020

By: Justin Boron

As of 2020, New Jersey employers, in general, may no longer ask applicants past salary information.  If they do, it constitutes an unlawful employment practice.  See N.J. Stat. § 34:6B-20.  New Jersey joins more than a dozen other states, the District of Columbia, Puerto Rico, and multiple local governments that have enacted similar provisions.

But there are several exemptions, such as voluntary disclosure, internal transfers, federal law or regulation requiring disclosure.   If an employer does not fit into one of the exemptions, the employer should review and revise its applications and policies immediately.

The law imposes a civil penalty in an amount not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation collectible by the Commissioner of Labor and Workforce Development.

The legislation also amended the New Jersey Law Against Discrimination to create a cause of action for violations that affect a member of a protected class, such as race or sex, so in addition to fines, violations could result in civil litigation as well.

If you have any questions or would like more information, please contact Justin Boron at [email protected].

The Ban is Back – New Life Given to Philadelphia’s Salary History Ban

Posted on: February 10th, 2020

By: Courtney Mazzio

Back in 2017, Philadelphia was among the early adapters of the salary history ban that we see starting to trend nationwide. However, prior to the enactment of the Philadelphia wage equity ordinance, the Chamber of Commerce for Greater Philadelphia initiated an action against the City of Philadelphia, challenging the constitutionality of the salary history ban law, arguing the portion of the law that prevents employers from inquiring about an applicant’s wage history violated an employer’s free speech rights. The Eastern District of Pennsylvania did block that inquiry rule, finding that the law as written violated the First Amendment free speech rights of Philadelphia employers.[1] However, the court upheld the reliance provision of the law, which makes it illegal to rely upon wage history to set the employee’s compensation.

On February 6, 2020, the Third Circuit Court of Appeals overturned the decision on the inquiry rule, and the wage equity ordinance will now prohibit Philadelphia employers from doing the following: (1) inquiring about a prospective employee’s wage history; (2) requiring disclosure of wage history; (3) conditioning employment or consideration for an interview on disclosure of wage history; (4) retaliating against a prospective employee for failing to comply with any wage history inquiry; and (5) relying on the wage history of a prospective employee in determining their wages unless they “knowingly and willingly” disclosed their wage history to the employer.[2]

The court reasoned that though new law does act to limit employers’ speech, it is “only because that limitation prevents the tentacles of any past wage discrimination from attaching to an employee’s subsequent salary.” Therefore, the court concluded that the goal of pay equity outweighed any limitations on free speech rights now placed on employers. Although this suit is not yet over and future legal challenges could ensue, we may start to see enforcement of this new law, so it is important for employers to think about revising their hiring practices to insure that potential employee interviews and applications do not impermissibly inquire into, or rely upon, prior compensation information. Moreover, employers should continue to remember that they may only use compensation information if the potential employee knowingly and willingly discloses the information, meaning, if the employer comes across the pay history information by another means, the employer cannot use the pay history information to inform its compensation decisions with regards to the potential employee.

If you have any questions, or would like more information, please contact Courtney Mazzio at [email protected].

[1] The Chamber of Commerce for Greater Philadelphia v. City of Philadelphia et al., No. 17-1548 (Apr. 30, 2018).
[2] The Chamber of Commerce for Greater Philadelphia v. City of Philadelphia et al., Nos. 18-2175 & 18-2176 (Feb. 6, 2020).

Does Shooting a Fleeing Suspect During an Escape Constitute a Seizure?

Posted on: February 7th, 2020

By: Sun Choy

It has been generally accepted that the intentional application of force constitutes a “seizure” for purposes of the Fourth Amendment.  But what happens if the intentional use of force does not result in terminating an escape?  This is the issue before the United States Supreme Court in Torres v. Madrid.  Police officers shot Torres, but she drove away and temporarily eluded capture.  In granting qualified immunity, the trial court concluded that she had not been seized to trigger the Fourth Amendment protections against the use of excessive force.  In affirming, the Tenth Circuit joined the D.C. Circuit and created a split with the Eighth, Ninth and Eleventh Circuits that do not require successful detention. The ACLU and the Cato Institute have filed competing amicus briefs.  The oral argument set for March 30 has all the makings for some interesting hypotheticals and legal banter.

Stay tuned for a synopsis of the argument.

If you have any questions or would like more information, please contact Sun Choy at [email protected].

Association Board Members Have Fiduciary Duties

Posted on: February 6th, 2020

By: Ali Sabzevari

The Georgia Property Owners’ Association Act and an HOA’s governing documents govern the creation and operation of a homeowners’ associations (“HOA”) and the duties of its board members.

A Board of Directors is typically responsible for managing all aspects of an HOA, but what some people may not understand is that board members have what are called “fiduciary duties” owed to the HOA members in the neighborhood.  A fiduciary relationship may be created by law, contract, or the facts of a particular case. The board members are in an important position of trust, and therefore owe a fiduciary duty to the HOA.

Board members owe fiduciary duties to the homeowners who form the HOA, including a duty of good faith and duty of care, among others. A board member’s failure to adhere to its fiduciary duties could expose the HOA to legal suits and potential liability. Under Georgia law, “a claim for breach of fiduciary duty requires (1) the existence of a fiduciary relationship, (2) breach of that duty, and (3) damage proximately caused by the breach.”

Before volunteering to serve on a Board of Directors, one should consider the legal duties involved.  Moreover, newly-formed and existing Boards need to fully understand and appreciate the governing documents and the duties imposed therein and under Georgia law, including fiduciary duties.  These duties should be taken into consideration when making decisions that impact the HOA members.  Dealing with these issues can be complex.

If you have any questions or would like more information, please contact A. Ali Sabzevari at [email protected].

What Should a California Lawyer Do With An Inadvertently Produced Privileged Document?

Posted on: February 6th, 2020

By: Greg Fayard

Sometimes privileged documents are accidentally produced to opposing counsel. Usually, this occurs in a document production in a lawsuit where, buried in the documents, is a communication between a lawyer and client that is clearly privileged and confidential. What should the lawyer do? In California, a new Rule of Professional Conduct 4.4 codifies case law on this issue and is based on common sense.

When it is reasonably apparent that the lawyer has received a privileged document (or attorney work product, like case strategy notes) then the lawyer is to:

  1. Stop examining the document;
  2. Notify opposing counsel or the sender of the privileged document; and
  3. Return it

After that, the lawyer should seek to reach an agreement with the sender over the writing’s future use in the matter. If the opposing sides cannot come to an agreement, they should seek guidance from the court or tribunal.

If you have any questions or would like more information, please contact Greg Fayard at [email protected], or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at www.fmglaw.com.