The Federal FMLA provides that employees may take 12 weeks of unpaid leave from their jobs when they have a serious medical condition or must care for a family member with a serious medical condition. The FMLA only applies to employers with 50 or more employees and employees must meet certain conditions to be eligible for leave. An employer must not retaliate against an employee for exercising his or her rights under the FMLA. New Jersey also has a similar statute, the New Jersey Family Leave Act, which provides different but related rights to employees. New Jersey law does not require an employer to have a minimum number of employees to be subject to the law and is also more pro employee than its federal counterpart. To learn more about employee rights and employer requirements under the FMLA, contact Lauren Bercik at 732-863-9900 or LBercik@hnlawfirm.com.
Archive for August, 2008
Family and Medical Leave Act (FMLA)
Friday, August 29th, 2008Overtime Pay and the Law Under Fair Labor Standards Act (FLSA)
Friday, August 29th, 2008The FLSA requires that employers pay employees a certain minimum wage and pay certain “non-exempt” employees overtime at the rate of one-and-one-half-times their regular rate of pay. Employers regularly violate this rule by classifying employees who should be non-exempt as exempt to avoid paying them overtime wages. Other employers violate the FLSA when they offer employees “comp time” instead of paying the required overtime.
To learn more about employee rights and employer obligations under the FLSA, visit the Department of Labor’s page on the topic here. Also keep in mind that many states have minimum wages laws higher than the federal minimum. For instance, while the federal minimum wage is currently $5.15 per hour, New Jersey and New York require employers to pay $7.15 per hour. If you are not being paid the minimum wage or work more than 40 hours per week without receiving overtime pay, you should contact Lauren Bercik at 732-863-9900 or LBercik@hnlawfirm.com to discuss your rights.
Pitfalls of Improperly Drafted Will
Friday, August 29th, 2008A number of years ago, I received a call from a potential client who had the following tale to tell. The woman’s husband had died leaving a will and some assets, one of which was a 401k. The marriage was a second for her husband, who had 2 sons from his first marriage. While he was single he had changed the beneficiaries of his life insurance and 401k plan to his sons and had redone his will.
After his second marriage, the husband and his new wife bought a new home together. They asked their real estate attorney, who handled the purchase for them, to draft new wills as well. The husband listed for his attorney the assets he wanted to pass to his sons and which to his new wife. The 401k he wanted to go to his wife. Unfortunately, the attorney didn’t understand the difference between probate and non-probate assets. So when he wrote a will that specifically left the 401k to the wife, he didn’t know that the will would have no effect on this asset because the beneficiary designations on file with the custodian of the 401k plan still listed the sons from the first marriage.
When the husband died, the wife received a big shock when she was told that she had no interest in the $500,000 account. That’s because a will doesn’t automatically control the distribution of all your assets. Contract property such as life insurance, annuities and retirement accounts pass in accordance with whom you have designated on the beneficiary forms completed and filed with the life insurance and annuity companies or retirement account custodians. Other types of property pass by operation of law such as joint accounts with right of survivorship or real estate that is owned by husband and wife. When one owner dies the property automatically passes to the surviving owner. It does not matter what the will says.
That is what happened in our story. The 401k is contract property so it passed according to the beneficiary designation form on file, not by the will. The wife tried unsuccessfully to get a court order directing the funds be paid to her.
The moral of the story is that although many people think drafting a will is simple and often undertake to do it themselves or ask the attorney who did other work for them to handle this task as well, they may miss important steps that must be taken that can save a lot of heartache and money.
This example is further reason why attorneys should reconsider doing “simple wills” when requested by a client. Simple does not mean right. For more information on this post, contact Fredrick P. Niemann, Esq. at fniemann@hnlawfirm.com.
Press Release
Friday, August 22nd, 2008FOR IMMEDIATE RELEASE
Hanlon Niemann Receives 2008 Best of Freehold Award
U.S. Local Business Association’s Award Plaque Honors the Achievement
WASHINGTON D.C., July 17, 2008 — Hanlon Niemann has been selected for the 2008 Best of Freehold Award in the Real Estate Management category by the U.S. Local Business Association (USLBA).
The USLBA “Best of Local Business” Award Program recognizes outstanding local businesses throughout the country. Each year, the USLBA identifies companies that they believe have achieved exceptional marketing success in their local community and business category. These are local companies that enhance the positive image of small business through service to their customers and community.
Various sources of information were gathered and analyzed to choose the winners in each category. The 2008 USLBA Award Program focused on quality, not quantity. Winners are determined based on the information gathered both internally by the USLBA and data provided by third parties.
Fredrick P. Niemann, Esq., managing partner of Hanlon Niemann, commented that “the award demonstrates that our efforts to achieve a reputation as a law firm within our community have been recognized by other local business owners and professional organizations. It’s a real tribute to the members of our firm”.
About U.S. Local Business Association (USLBA)
U.S. Local Business Association (USLBA) is a Washington D.C. based organization funded by local businesses operating in towns, large and small, across America. The purpose of USLBA is to promote local business through public relations, marketing and advertising.
The USLBA was established to recognize the best of local businesses in their community. The organization works exclusively with local business owners, trade groups, professional associations, chambers of commerce and other business advertising and marketing groups. Its mission is to be an advocate for small and medium size businesses and business entrepreneurs across America.
SOURCE: U.S. Local Business Association
Thinking of blowing the “whistle” on your boss? (New Jersey’s Conscientious Employee Protection Act)
Friday, August 22nd, 2008There are numerous federal and state laws that protect “whistleblowers” who report the unfair or illegal practices of their employers, of which New Jersey’s CEPA law is just one. CEPA provides that employers may not retaliate against workers who disclose (or threaten to disclose) practices of the employer that they believe are violations of the law. CEPA also protects employees who refuse to participate in unlawful or fraudulent activities or those that may harm the health, safety or welfare of the public. Employees must be careful in asserting their rights under CEPA, as certain steps are necessary to ensure protection under the law. If your employer asks you to do an act you feel is illegal or against public policy, it is important to contact an attorney as soon as possible.
You may contact Ms. Lauren Bercik at Hanlon Niemann if you would like to discuss this topic further.
Know Your Rights: Employee Retirement Income Security Act (ERISA)
Friday, August 22nd, 2008The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for most voluntarily established pension plans, health plans, and employment-related compensation within private industry.
You may have a claim for a violation of ERISA if:
*You were wrongfully denied health benefits that are/were offered through your employer;
*You were retaliated against for questioning or testifying about employment related compensation or benefits;
*You were terminated by your employer to prevent you from obtaining specific employment benefits (i.e. vesting pension);
*You were not provided severance in accordance with a well-defined severance plan/policy of your employer;
*A misrepresentation was made by your employer about your employment benefits; or,
*You were wrongfully denied requested information related to your employment benefits.
The types of claims discussed above are not intended to be an exclusive list of possible claims under ERISA, but rather, representative of some common claims. ERISA is a complicated area of federal law that provides very specific remedies depending on the type of violation alleged. An employee or former employee must also, in many cases, exhaust certain administrative remedies before bringing such a claim. If you have questions about this post, contact Fredrick P. Niemann at fniemann@hnlawfirm.com.
An Employees’ Failure to Disclose His Expunged Convictions on Job Applications Did Not Prohibit His Claim for Discrimination under New Jersey Law
Friday, August 15th, 2008For more information on Employment Law, click here:
A recent lawsuit filed by a law enforcement employee who failed to disclose his expunged convictions does not prohibit him from pursuing a workplace discrimination complaint against his employer for workplace harassment but the evidence of the convictions could be used to limit or potentially reduce economic damages. In a widely anticipated decision by the New Jersey Supreme Court, the Court has ruled that even intentional withholdings of information by prospective employees which are later discovered by the employer is not a defense available to the employer if the employee is able to establish workplace violations actionable under the Law Against Discrimination (LAD). The Court did rule however, that the evidence of the withheld information prior to employment could (if relevant and material to the outcome to the issues in dispute) serve as a basis for the employer to totally or partially avoid economic damages depending on the particular facts of the case. This decision clarifies earlier court decisions relating to employees bringing actions against employers knowing that they had previously failed to disclose otherwise material and important information about their private life.
For more information on this decision, contact Lauren Bercik, Esq. at lbercik@hnlawfirm.com
What are the Medicaid implications of a second marriage?
Friday, August 15th, 2008For more information about Medicaid and Medicare, click here:
Seniors who get remarried are often concerned about what will happen to their assets if their new spouse enters the nursing home in the future. They are concerned that their hard-earned assets they saved could be lost. They also want to make sure that when they die their assets will go to their children. Although the prenuptial agreement will protect the senior’s assets from claims of his surviving spouse when he dies, the prenuptial agreement does not protect his assets from his spouse’s nursing home expenses. Seniors who have entered into second marriages are often surprised to learn that the prenuptial agreement that specified that their spouse had no claim to their assets does not prevent Medicaid from counting the assets of the spouse at home in determining Medicaid eligibility.
Medicaid is the governmental program that pays nursing home costs when a senior runs out of assets. Until the nursing home resident has less than $2,000 of countable assets, he must pay his own nursing home costs. When countable assets are less than $2,000, Medicaid will begin paying the senior’s nursing home costs.
However, just because the nursing home spouse has less than $2,000 in assets does not necessarily mean that the nursing home spouse will be eligible for Medicaid. Instead, despite the prenuptial agreement, Medicaid looks at the assets of both spouses. The rules for determining Medicaid eligibility are exactly the same for couples with prenuptial agreements and those without them.
This does not mean that all assets of both spouses must be used up before Medicaid will begin paying nursing home costs. Congress passed “spousal impoverishment rules” to keep the spouse at home from having to be completely impoverished before Medicaid payments kick in.
Under these rules, the amount that the at-home spouse can keep is based on the resources that the couple has at the time one spouse enters an institution. Resources are counted (often referred to as a “snapshot” of resources) as of the date a senior first begins a period of continuous institutionalization. This can be when a senior enters a nursing home or when he first entered a hospital. So, if a spouse first enters a hospital prior to a nursing home, the snapshot is taken based on the date of admission to the hospital, not the nursing home. The spouse at home is permitted to keep half of the couple’s countable assets as of the snapshot date, up to $101,640; but the spouse in the nursing home is limited to $2,000 of countable assets.
Can a spouse keep the marital home if the other spouse enters a long-term facility?
Friday, August 15th, 2008For more information about Medicaid and Medicare, click here:
Many families are concerned that if a spouse enters a long-term care facility, then the marital home will be eventually lost. Medicaid has no intention of evicting the at-home spouse (also known as the “community spouse”). Nor does Medicaid require the at-home spouse to sell the home and apply the proceeds toward long-term care costs. However, Medicaid can, under the veil of estate recovery, place a “lien” of claim on the subject premises. When the community spouse passes away or sells the house, then Medicaid can demand to be reimbursed for all monies expended on behalf of the ailing spouse.
The Civil Rights Act of 1964
Friday, August 8th, 2008For more information on Employment Law, click here:
Title VII of the Civil Rights Act of 1964 protects employees and job applicants against discrimination on the basis of sex (including pregnancy), race, color, national origin or religion. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals on the basis of prohibited characteristics. Title VII covers employers with 15 or more employees, including state and local governments. To learn more about the types of discrimination prohibited by Title VII, visit the Equal Employment Opportunity Commission here.