Hill Wallack LLP Firm News/Blogs Feedhttp://www.hillwallack.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10en-us08 Apr 2020firmwisehttp://blogs.law.harvard.edu/tech/rssHW Partner Caroline Record, Panelist for NJICLE Seminarhttp://www.hillwallack.com/?t=40&an=107781&format=xml&p=555515 Apr 2020Event<h4>Community Associations and The Coronavirus (Covid 19) &ndash; What You Need To Know</h4> <p><em>Presented in cooperation with NJSBA Real Property, Trust &amp; Estate Law Section and the Community Associations Institute, New Jersey Chapter (CAI-NJ) </em><br /> <br /> <img src="http://www.hillwallack.com/D444E6/assets/images/Attorneys/Caroline_Record_07142015.jpg" alt="" width="140" vspace="0" hspace="10" height="211" border="0" align="left" />On Wednesday, April 15, 2020, from 9:00 a.m. - 11:00 a.m., Community Associations Law partner <a href="http://www.hillwallack.com/caroline-record">Caroline Record</a>&nbsp;will be among a group of panelists in a Live Webcast discussing:</p> <p>The impact of the coronavirus is wide-ranging, regardless of whether you are dealing with a high-rise building or a small number of condominium or townhome units. <br /> <br /> Click <a href="https://tcms.njsba.com/PersonifyEbusiness/Default.aspx?TabID=1699&amp;productId=57775905">here</a> for more information and registration.<br /> <br /> <span style="font-size: smaller;"><strong>NJ CLE information:</strong><em> This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 2.4 hours of total CLE credit.</em></span></p> <p><br /> &nbsp;</p> <p>&nbsp;</p>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Small Business Owner's Guide To The Cares Acthttp://www.hillwallack.com/?t=40&an=107630&format=xml&p=530901 Apr 2020Client Alert<h4><img src="http://www.hillwallack.com/D444E6/assets/images/Attorneys/Paul_Watter_05152013.PNG" alt="" width="151" vspace="0" hspace="10" height="234" border="0" align="left" /></h4> <p style="margin-left: 80px;"><img src="http://www.hillwallack.com/D444E6/assets/images/Attorneys/Nicole_PerdoniByrne_09172013.JPG" alt="" width="159" vspace="0" hspace="20" height="234" border="0" align="left" />For detailed information, click <a href="/D444E6/assets/files/Documents/smallbusinessownersguide_car.pdf">here</a> to see the Small Business Owner's Guide To The Cares Act.</p> <p>Upon your review, should you have questions, or concerns, please contact <a href="http://www.hillwallack.com/paul-n-watter">Paul N. Watter</a> or <a href="http://www.hillwallack.com/nicole-perdonibyrne">Nicole Perdoni-Byrne</a>, members of the firm's Banking &amp; Financial Services and Public Finance practice groups, who have an extensive background in SBA financing and are prepared to answer any questions you may have.</p>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Force Majeure – Important Contract Performance Issues for Today's Circumstanceshttp://www.hillwallack.com/?t=40&an=107528&format=xml&p=530931 Mar 2020Client Alert<p><em>Written by: <a href="http://www.hillwallack.com/victoria-airgood">Victoria Airgood, Esq.</a></em></p> <p><i>Force majeure </i>may be Latin legal terminology, but when a case is decided its meaning is far from abstract. A court will define the term by reference to the specific facts of a case. So it is important to gather and preserve the facts, concerning formation of the contract and the reasons either party did not perform.</p> <p>The first step to evaluating how particular facts may play out legally when a party cannot perform its contract obligations is to determine whether the contract is for the sale of goods or for services. Many contracts combine both, and the question is which is paramount.&nbsp;For instance, a construction contract that includes installation of fixtures supplied by the contractor most likely would be considered a services contract.&nbsp;An information technology contract involving installation, service, training and hardware may be categorized by how much of the contract price is allocated to the hardware.</p> <p><i>Force majeure</i> applies to contracts for services through the terms of a written contract and by common law &ndash; the series of court decisions that will be used as precedent to decide a case.&nbsp;<i>Force majeure</i> applies to contracts for the sale of goods through New Jersey&rsquo;s Uniform Commercial Code, specifically N.J.S.A. 12A:615, and the parties&rsquo; contract.&nbsp;The Code&rsquo;s requirements differ somewhat from the common law.&nbsp;For example, a seller of goods has a duty to allocate production and delivery.&nbsp;However, some questions for sale of goods contracts will be decided by reference to the common law.&nbsp;</p> <p>For contracts to provide services or a combination of goods and services where the services predominate &ndash; a <i>force majeure</i> clause in the written contract will be a court&rsquo;s first focus, but the clause may not entirely control the outcome.&nbsp;A court first will determine whether the language of the <i>force majeure</i> clause includes the circumstances claimed to prevent performance.&nbsp;If there is no <i>force majeure</i> clause, or if the court finds it doesn&rsquo;t apply to the circumstances at hand, a court may consider whether the common law of &ldquo;impossibility&rdquo; or &ldquo;impracticability&rdquo; provides an escape route from the duties of the contract.&nbsp;In other words, the absence of a <i>force majeure</i> clause in a contract doesn&rsquo;t entirely preclude a <i>force majeure</i> legal excuse for non-performance.</p> <p>One basis of <i>force majeure </i>defense potentially available now is the death or illness of a person who was to do the work.&nbsp;The most important question for this type of &ldquo;impossibility&rdquo; is whether <i>both parties</i> intended that person to do the work because of his or her individual skill or exercise of discretion.&nbsp;If either side did not have that intention, the work is &ldquo;delegable&rdquo; &ndash;it can be performed by someone else &ndash; and <i>neither</i> party can walk away from the contract without potential liability to the other side.</p> <p>Another situation currently of concern is performance of a contract requiring the gathering of people in close quarters. Performance of the contract may violate &ldquo;social distancing&rdquo; guidelines or &ldquo;shelter in place&rdquo; orders.&nbsp;Either side conceivably could want to call off performance and, if delayed performance is not provided for by the contract, what happens?&nbsp;Oftentimes, the contract terms themselves put the risk on one or the other party.&nbsp;If not, the common law may view this situation as the failure of a condition the existence of which was assumed by both parties to be possible: namely, that the necessary number of people could gather together to perform the services called for by the contract.&nbsp;This is one essential common law definition of <i>force majeure</i>.&nbsp;The Governor&rsquo;s Executive Orders should be carefully examined to determine if performance of the contract would violate currently binding restrictions or public policy statements.</p> <p>A third situation of concern is a services contract dependent on a purchase or sale of goods (for example, installation of specific equipment or repair using specific materials).&nbsp;What happens to the services contract when the equipment or materials do not arrive and won&rsquo;t arrive for an undetermined time?&nbsp;Again, the contract&rsquo;s <i>force majeure</i> clause may give an answer and, if not, the common law will fill in as a basis for decision.&nbsp;Even more important may be the contract&rsquo;s stated conditions, which define events or circumstances that must happen before performance under the contract is owed or must be accepted.&nbsp;Such contract conditions will be considered in the new light of today&rsquo;s circumstances.<br /> <br /> For more information about this Alert or if you have any questions or concerns, please contact Victoria Airgood at (609)734-6373 or <a href="mailto:vairgood@hillwallack.com">vairgood@hillwallack.com</a></p> <p>&copy;2020 Hill Wallack LLP. All rights reserved. Please contact Hill Wallack for permission to reprint. Notice: The purpose of this Client Alert is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, accuracy and completeness of which cannot be assured. This Client Alert should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Hill Wallack LLP Attorneys Selected To The 2020 New Jersey Super Lawyers and Rising Stars Listshttp://www.hillwallack.com/?t=40&an=107429&format=xml&p=531031 Mar 2020News Release<strong><br /> </strong>Princeton, NJ March 31, 2020 --- Hill Wallack LLP is pleased to announce that ten of the firms attorneys have been included on the list of 2020 New Jersey Super Lawyers and three have been included in the Rising Stars list. No more than 5% of attorneys in the state are honored as Super Lawyers and up to 2.5% of attorneys are selected as Super Lawyers Rising Stars.<br /> <p><u>Princeton office:</u><br /> <br /> <a href="http://www.hillwallack.com/eric-i-abraham">Eric I. Abraham</a>, Partner - Complex Litigation<br /> <a href="http://www.hillwallack.com/supti-bhattacharya">Supti Bhattacharya</a>, Partner - Matrimonial &amp; Family Law<br /> <a href="http://www.hillwallack.com/thomas-f-carroll-iii">Thomas F. Carroll, III</a>, Partner - Land Use<br /> <a href="http://www.hillwallack.com/gerard-h-hanson">Gerard H. Hanson</a>, Partner - Trial &amp; Insurance Defense<br /> <a href="http://www.hillwallack.com/michael-s-karpoff">Michael S. Karpoff</a>, Partner - Community Associations<br /> <a href="http://www.hillwallack.com/suzanne-m-marasco">Suzanne M. Marasco</a>, Partner - Employment &amp; Labor Law<br /> <a href="http://www.hillwallack.com/stephen-m-eisdorfer">Stephen M. Eisdorfer</a>, Of Counsel - Land Use<u><br /> <br /> Cherry Hill office:</u><br /> <br /> <a href="http://www.hillwallack.com/george-c-greatrex-jr">George C. Greatrex, Jr.</a>, Partner - Community Associations<br /> <a href="http://www.hillwallack.com/gregg-a-shivers">Gregg A. Shivers</a>, Partner - Community Associations<br /> <br /> <u>Red Bank office:</u><br /> <br /> <a href="http://www.hillwallack.com/albertina-webb">Albertina Webb</a>, Partner - Matrimonial &amp; Family Law<br /> <br /> The following attorneys have been included on the 2020 New Jersey Super Lawyers Rising Stars list. <br /> <br /> <u>Princeton office:</u><br /> <a href="http://www.hillwallack.com/michael-k-fortunato"><br /> Michael K. Fortunato</a>, Counsel - Trial &amp; Insurance Defense<br /> <a href="http://www.hillwallack.com/megha-r-thakkar">Megha R. Thakkar</a>, Counsel - Matrimonial &amp; Family Law<br /> <br /> <u>Red Bank office:</u><br /> <br /> <a href="http://www.hillwallack.com/?t=3&amp;A=20841&amp;format=xml&amp;p=5306">Vito Colasurdo</a>, Counsel - Matrimonial &amp; Family Law<br /> <br /> About SuperLawyers<br /> <br /> Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. <br /> <br /> The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the county. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, go to superlawyers.com.</p>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10The Coronavirus Aid, Response, and Economic Security Act "CARES Act"http://www.hillwallack.com/?t=40&an=107464&format=xml&p=530930 Mar 2020Client Alert<p><em>Written by: Susan L. Swatski, Esq.</em></p> <p>The following is a brief summary of the CARES Act. <br /> <br /> <b>Health Care </b></p> <ul> <li>Clarifies that all testing for coronavirus (COVID-19) is to be covered by private insurance plans without cost sharing. The Act covers all services provided during a medical visit, including an in-person or telehealth visit to a doctor&rsquo;s office or an emergency room, that results in coronavirus screening. This coverage is in effect only while there is a declared public health emergency.</li> <li>Changes the use of health savings accounts (HSAs) paired with high-deductible health plans (HDHPs) by allowing a HDHP with a HSA to cover telehealth services prior to a patient reaching the deductible.&nbsp;</li> <li>Includes certain over-the-counter medical products, without a prescription, as &ldquo;qualified expenses&rdquo; under HSAs, Flexible Spending Accounts, Archer medical savings accounts and health reimbursement arrangements.&nbsp;This benefit applies to all amounts paid or expenses incurred after December 31, 2019.</li> <li>Allows an employee who was laid off on or after April 1, 2020 to have access to paid family and medical leave in certain instances if they are rehired by the employer.</li> <li>Allows employers to receive an advance tax credit from the Department of Treasury instead of having to be reimbursed on the back end. Creates regulatory authority to implement tax credit advancements.</li> <li>Amends Section 518 of ERISA to provide the Department of Labor the ability to postpone certain ERISA filing deadlines for a period of up to one year in the case of a public health emergency.</li> </ul> <p><b>Unemployment Insurance</b></p> <ul> <li>Creates a new Pandemic Unemployment Assistance program (&ldquo;PUA&rdquo;) to help those not traditionally eligible for Unemployment Insurance (UI), including self-employed individuals, independent contractors, those with limited work history and those who are unable to work as a result of the coronavirus public health emergency.&nbsp;PUA is available through December 31, 2020.&nbsp;PUA pays 50% of the unemployment insurance costs incurred by state, local and tribal governments and non-profit organizations that would otherwise not be part of the UI system.</li> <li>Provides additional $600/week payment to each UI or PUA recipient through the end of July 2020.</li> <li>Provides funding for the 1st week of unemployment for states to waive the traditional &ldquo;waiting week&rdquo; before benefits begin.</li> <li>Provides an additional 13 weeks of unemployment to help those who remain unemployed after weeks of state unemployment are no longer available.</li> </ul> <p><b>Retirement</b></p> <p>Waives the 10% tax on early withdrawals up to $100,000 from a retirement plan or an IRA made on or after January 1, 2020 for an individual:</p> <ul> <li>who is diagnosed with COVID-19;</li> <li>whose spouse or dependent is diagnosed with COVID-19;</li> <li>who experiences adverse financial consequences as a result of:<br /> <ul> <li>being quarantined,</li> <li>furloughed,</li> <li>laid off,</li> <li>having work hours reduced,</li> <li>being unable to work due to lack of child care due to COVID-19,</li> <li>closing or reducing hours of a business owned or operated by the individual due to COVID-19; or</li> <li>other factors as determined by the Treasury Secretary.</li> </ul> </li> </ul> <ul> <li>Permits individuals to pay tax on the income from the distribution over a three-year period and allows individuals to repay that amount tax-free back into the plan over the next three years.</li> <li>Doubles the current retirement plan loan limits to the lesser of $100,000 or 100% of the participant&rsquo;s vested account balance in the plan.</li> <li>Individuals with an outstanding loan from their plan with a repayment due from the date of enactment of the CARES Act through Dec. 31, 2020, can delay their loan repayment(s) for up to one year.</li> </ul> <p>For more information about this alert or if you have any questions or concerns, please contact Susan L. Swatski at (609)734-6318 or <a href="mailto:sswatski@hillwallack.com">sswatski@hillwallack.com</a> or any member of Hill Wallack&rsquo;s <a href="http://www.hillwallack.com/employment-labor-law">Employment &amp; Labor Law</a> Department.</p> <p>&copy;2020 Hill Wallack LLP. All rights reserved. Please contact Hill Wallack for permission to reprint. Notice: The purpose of this Client Alert is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, accuracy and completeness of which cannot be assured. This Client Alert should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.</p>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10DOL Guidance for the FFCRAhttp://www.hillwallack.com/?t=40&an=107358&format=xml&p=530927 Mar 2020Client Alert<p><em><img src="http://www.hillwallack.com/D444E6/assets/images/Attorneys/Susan_Swatski_02072019.jpg" alt="" width="167" vspace="0" hspace="10" height="250" border="0" align="left" />Written by: <a href="http://www.hillwallack.com/susan-l-swatski">Susan L. Swatski</a></em><strong><br /> </strong></p> <p>The U.S. Department of Labor (DOL) issued guidance in the form of a fact sheet for employees, a fact sheet for employers, and a Q&amp;A document addressing critical questions on the paid leave requirements under the federal Families First Coronavirus Response Act (FFCRA). The FFCRA expanded the federal Family and Medical Leave Act (FMLA) to allow partially compensated employee leave for child care purposes related to COVID-19. The FFCRA also provided for employee paid sick leave for specific COVID-19-related reasons. The law included other measures to address the effect of the coronavirus pandemic on workers. The guidance addresses issues such as:</p> <ul> <li>Which employers and employees are covered under the FFCRA;</li> <li>How much leave employers are required to grant employees and for what pay;</li> <li>Exemptions from the law; and</li> <li>What tax credits are available to employers to pay for the leave.</li> </ul> <p>The Employee Fact Sheet can be found <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave">here</a>.</p> <p>The Employer Fact Sheet can be found <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave">here</a>.</p> <p>The Q &amp; A, as published, is as follows:</p> <p>1.<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span><b>What is the effective date of the FFCRA, which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act?</b><b><br /> </b><br /> The FFCRA&rsquo;s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.</p> <p>2.<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span><b>As an employer, how do I know if my business is under the 500-employee threshold and therefore must provide paid sick leave or expanded family and medical leave?</b><b><br /> </b><br /> You have fewer than 500 employees if, at the time your employee&rsquo;s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States. In making this determination, you should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer&rsquo;s payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.<br /> <br /> Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.<br /> <br /> In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.</p> <p>3.<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span><b>If I am a private sector employer and have 500 or more employees, do the Acts apply to me?</b><b><br /> </b><br /> No. Private sector employers are only required to comply with the Acts if the have fewer than 500 employees.</p> <p>4.<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span><b>If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?</b><b><br /> </b><br /> To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.<br /> <br /> You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.</p> <p>5.<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span><b>How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave?</b><b><br /> </b><br /> A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee&rsquo;s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.<br /> <br /> If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.</p> <p>6.<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span><b>When calculating pay due to employees, must overtime hours be included?</b><b><br /> </b><br /> Yes. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.<br /> <br /> However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.<br /> <br /> If the employee&rsquo;s schedule varies from week to week, please see the answer to Question 5, because the calculation of hours for a full-time employee with a varying schedule is the same as that for a part-time employee.<br /> <br /> Please keep in mind the daily and aggregate caps placed on any pay for paid sick leave and expanded family and medical leave as described in the answer to Question 7.<br /> <br /> Please note that pay does not need to include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act.</p> <p>7.<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span><b>As an employee, how much will I be paid while taking paid sick leave or expanded family and medical leave under the FFCRA?</b><b><br /> </b><br /> It depends on your normal schedule as well as why you are taking leave.<br /> <br /> If you are taking paid sick leave because you are unable to work or telework due to a need for leave because you (1) are subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, you will receive for each applicable hour the greater of:</p> <ul> <li>your regular rate of pay,</li> <li>the federal minimum wage in effect under the FLSA, or</li> <li>the applicable State or local minimum wage.</li> </ul> <p>In these circumstances, you are entitled to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.<br /> <br /> If you are taking paid sick leave because you are: (1) caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services, you are entitled to compensation at 2/3 of the greater of the amounts above.<br /> <br /> Under these circumstances, you are subject to a maximum of $200 per day, or $2,000 over the entire two week period.<br /> <br /> If you are taking expanded family and medical leave, you may take paid sick leave for the first ten days of that leave period, or you may substitute any accrued vacation leave, personal leave, or medical or sick leave you have under your employer&rsquo;s policy. For the following ten weeks, you will be paid for your leave at an amount no less than 2/3 of your regular rate of pay for the hours you would be normally scheduled to work. The regular rate of pay used to calculate this amount must be at or above the federal minimum wage, or the applicable state or local minimum wage. However, you will not receive more than $200 per day or $12,000 for the twelve weeks that include both paid sick leave and expanded family and medical leave when you are on leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.<br /> <br /> To calculate the number of hours for which you are entitled to paid leave, please see the answers to Questions 5-6 that are provided in this guidance.</p> <p>8.<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span><b>What is my regular rate of pay for purposes of the FFCRA?</b><b><br /> </b><br /> For purposes of the FFCRA, the regular rate of pay used to calculate your paid leave is the average of your regular rate over a period of up to six months prior to the date on which you take leave. If you have not worked for your current employer for six months, the regular rate used to calculate your paid leave is the average of your regular rate of pay for each week you have worked for your current employer.<br /> <br /> If you are paid with commissions, tips, or piece rates, these wages will be incorporated into the above calculation.<br /> <br /> You can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.</p> <p>9.<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span><b>May I take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?</b><b><br /> </b><br /> No. You may take up to two weeks&mdash;or ten days&mdash;(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.&nbsp;</p> <p>10.&nbsp;<b>&nbsp;&nbsp;&nbsp;&nbsp;If I am home with my child because his or her school or place of care is closed, or child care provider is unavailable, do I get paid sick leave, expanded family and medical leave, or both&mdash;how do they interact?</b><b><br /> </b><br /> You may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. You may take both paid sick leave and expanded family and medical leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless the you elect to use existing vacation, personal, or medical or sick leave under your employer&rsquo;s policy. After the first ten workdays have elapsed, you will receive 2/3 of your regular rate of pay for the hours you would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act.<br /> <br /> Please note that you can only receive the additional ten weeks of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act for leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.</p> <p>11.&nbsp;<b>&nbsp;&nbsp;&nbsp;&nbsp;Can my employer deny me paid sick leave if my employer gave me paid leave for a reason identified in the Emergency Paid Sick Leave Act prior to the Act going into effect?</b><b><br /> </b><br /> No. The Emergency Paid Sick Leave Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020.</p> <p>12.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<b>Is all leave under the FMLA now paid leave?</b><b><br /> </b><br /> No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.</p> <p>13.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<b>Are the paid sick leave and expanded family and medical leave requirements retroactive?</b><b><br /> </b><br /> No.</p> <p>14.&nbsp;<b>&nbsp;&nbsp;&nbsp;&nbsp;How do I know whether I have &quot;been employed for at least 30 calendar days by the employer&quot; for purposes of expanded family and medical leave?</b><b><br /> </b><br /> You are considered to have been employed by your employer for at least 30 calendar days if your employer had you on its payroll for the 30 calendar days immediately prior to the day your leave would begin. For example, if you want to take leave on April 1, 2020, you would need to have been on your employer&rsquo;s payroll as of March 2, 2020.<br /> <br /> If you have been working for a company as a temporary employee, and the company subsequently hires you on a full-time basis, you may count any days you previously worked as a temporary employee toward this 30-day eligibility period.<br /> <br /> &copy;2020 Hill Wallack LLP. All rights reserved. Please contact Hill Wallack for permission to reprint. Notice: The purpose of this Client Alert is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, accuracy and completeness of which cannot be assured. This Client Alert should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.</p>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Think Before You Modify: The Importance of Seeking Counsel Before Modifying A Commercial Loan Containing A Confession of Judgment Clausehttp://www.hillwallack.com/?t=40&an=107139&format=xml&p=530924 Mar 2020Client Alert<p><em><img src="http://www.hillwallack.com/D444E6/assets/images/Attorneys/Michael_Shavel_11182013.jpg" alt="" width="167" vspace="0" hspace="10" height="250" border="0" align="left" />Written by: <a href="http://www.hillwallack.com/michael-j-shavel">Michael J. Shavel, Esq.</a></em></p> <p>During these uncharted economic times, many commercial borrowers are seeking to modify loan documents to alleviate uncertainty and lessen their financial burden. While many lenders may be willing to work with borrowers to develop a modified document that protects both parties, it is imperative that when reviewing and modifying documents containing confessions of judgment clauses that you seek legal advice.</p> <p>A confession of judgment clause contractually authorizes a creditor to enter an immediate judgment against a debtor in default without requiring, and certainly limiting, the debtor&rsquo;s ability to respond or contest the judgment. Judgment may be obtained against the defaulting customer in days rather than months or years.&nbsp;Because the contractual provisions contained in the confession of judgment essentially deprive the debtor from having their day in court, courts strictly scrutinize and construe these provisions against the creditor.&nbsp;</p> <p>When properly drafted, a valid confession of judgment clause will convey to the court that there is no doubt the signor was conscious of the fact that they were authorizing the creditor to enter judgment against them without notice or a hearing.&nbsp;</p> <p>However, the strict requirements that must be followed do not stop after the original loan documents are drafted and executed.&nbsp;It is crucial to seek the advice of counsel when modifying documents containing a confession of judgment clause. If special and specific procedural requirements are not followed, the ability to enter judgment immediately could be lost and the confession of judgment clause can be voided.&nbsp;In order to protect your ability to enforce this powerful weapon, be sure to contact Hill Wallack.&nbsp;Our experienced attorneys can guide you in modifying and restructuring documents to protect your relationship with your customers and safeguard your ability to enter judgment should it be necessary.&nbsp;&nbsp;&nbsp;<br /> <br /> &copy;2020 Hill Wallack LLP. All rights reserved. Please contact Hill Wallack for permission to reprint. Notice: The purpose of this Client Alert is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, accuracy and completeness of which cannot be assured. This Client Alert should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.</p>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Bridging the Gaphttp://www.hillwallack.com/?t=40&an=107076&format=xml&p=530923 Mar 2020Client Alert<p><em>Written by: Ozge Otarsi-McCue</em><br /> <br /> In light of COVID-19&rsquo;s impact on the state, national and global markets and its expected reach into the economic standing of individuals and businesses, lending institutions may find a significant increase in borrower requests for deferments and modification and/or forbearance agreements in connection with existing residential or commercial loans. Hill Wallack LLP maintains extensive experience in these areas on behalf of a multitude of lending institutions and is prepared to immediately assist our clients with the preparation and finalization of these agreements, in addition to providing personal and detailed guidance in each of these transactions. If you are a lending institution in need of assistance with deferments and modification and/or forbearance agreements, or require any guidance in general during these times, please do not hesitate to contact us to immediately address your needs.</p> <ol type="1" start="1"> <li> <p>Is it an increase in interest rate?</p> </li> <li> <p>Are you extending new money?</p> </li> <li> <p>Is there a guaranty involved?</p> </li> <li> <p>Is the loan in New Jersey or another State?</p> </li> <li> <p>Are there other lienholders?</p> </li> <li> <p>Is the borrower in default?</p> </li> <li> <p>Is there a Participation Agreement?</p> </li> <li> <p>What is the collateral?</p> </li> </ol> <table width="423" cellspacing="1" cellpadding="1" border="0"> <tbody> <tr> <td><strong><u>New Jersey Contacts:</u></strong></td> <td><strong><u>Pennsylvania Contacts:</u></strong></td> </tr> <tr> <td><a href="mailto:mkahme@hillwallack.com">Michael Kahme, Esq.</a></td> <td><a href="mailto:fsullivan@hillwallack.com">Francis J. Sullivan, Esq.</a></td> </tr> <tr> <td><a href="mailto:pwatter@hillwallack.com">Paul N. Watter, Esq.</a></td> <td><a href="mailto:mshavel@hillwallack.com">Michael J. Shavel, Esq.</a></td> </tr> <tr> <td><a href="mailto:nbyrne@hillwallack.com">Nicole Perdoni-Byrne, Esq.</a></td> <td><a href="mailto:tduffy@hillwallack.com">Timothy J. Duffy,&nbsp; Esq.</a></td> </tr> <tr> <td><a href="mailto:ksauter@hillwallack.com">Kenneth R. Sauter, Esq.</a></td> </tr> <tr> <td><a href="mailto:ksauter@hillwallack.com">Ozge Otarsi-McCue, Esq.</a></td> </tr> </tbody> </table> <p><br /> &copy;2020 Hill Wallack LLP. All rights reserved. Please contact Hill Wallack for permission to reprint. Notice: The purpose of this Client Alert is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, accuracy and completeness of which cannot be assured. This Client Alert should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.</p>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10How Will New Jersey Support Obligations Be Affected by COVID-19?http://www.hillwallack.com/?t=40&an=107085&format=xml&p=23 Mar 2020Blog<p><img src="http://www.hillwallack.com/D444E6/assets/images/Attorneys/Vito_ColasurdoJr_03182020.jpg" alt="" width="166" vspace="0" hspace="10" height="225" border="0" align="left" /></p> <p>By: <a href="http://www.hillwallack.com/?t=3&amp;A=20841&amp;format=xml&amp;p=5306">Vito Colasurdo, Jr., Esq.</a>, Counsel</p> <p>In a week&rsquo;s span, COVID-19 dramatically changed &nbsp;our lives.&nbsp; Most of us are living in isolation. It is now cool to be a hermit and the most common words currently being used &nbsp;are &ldquo;social-distancing&rdquo; and &ldquo;self-quarantine.&rdquo; The Centers for Disease Control and Prevention (&ldquo;CDC&rdquo;) and the World Health Organization (&ldquo;WHO&rdquo;) are recommending that people &ldquo;shelter in place&rdquo;, calling for those who can to work from home. The essential steps we are taking to limit the spread of the coronavirus (&ldquo;flattening the curve&rdquo;) have had unintended consequences on the global economy.</p> <p>The instant decline of the stock market caused by the coronavirus was unprecedented. The Dow Jones Industrial Average plummeted 35% from its highest level in mid-February 2020 and now sits 4.5% lower than pre-Trump presidency levels.</p> <p>The workforce was equally inflicted by the extreme, necessary measures to flatten the curve of the spread of the coronavirus. The need to socially distance and the qualification of what is an &ldquo;essential business&rdquo; will affect how New Jersey does business for the foreseeable future. The lucky were forced from their workplaces to work from home. The unlucky, however, either had to close their small businesses or lose their jobs.</p> <p>Businesses small and large are being forced to ask difficult questions to survive the coronavirus pandemic. The unemployment rate is expected to be at its highest in 40 years. Forecasts for job losses to occur in April 2020 range from 500,000 to 5,000,000. We are living in unprecedented times and no one knows how long the era of social distancing and self-quarantining will last. The optimistic predict June 2020. Those more conservative say it will last another 18 months, well into late 2021.</p> <p>From a family law perspective, who will this most affect? The answer: those with support provisions in their Marital Settlement Agreement/Final Judgment of Divorce. The coronavirus will drastically impact those either paying or receiving alimony or child support if the payor of the support suffers a substantial loss in income. Those seeking or defending what are called &ldquo;changed circumstances&rdquo; motions for loss of income must understand the nuances involved with such applications. These applications are governed by N.J.S.A. 2A:34-23. A downward modification of support application cannot be filed until the payor has been unemployed, or has not been able to return to or attain employment at prior income levels, or both, for a period of 90 days. Any application must be accompanied by the Marital Settlement Agreement/Final Judgment of Divorce, the Case Information Statement filed at the time of the divorce, and a current Case Information Statement.</p> <p>For W-2 wage earners who lose their employment, it is imperative that a spreadsheet or log of job search applications and contacts during the job search process be kept to annex to an application. For self-employed individuals, in addition to showing the involuntary reasons for the decline in income, the application must include an analysis that sets forth the economic and non-economic benefits the payor receives from the business both now and at the time of the entry of the support order.</p> <p>Individuals who have pendente lite support obligations face a host of other considerations that are considerably complicated by the potential or real impact of the coronavirus on their income. We are certainly dealing with a new normal both socially and economically as a result of the pandemic. During this time, it is important that everyone be safe and as informed as we can be as we wade into uncharted territories. Please check back for updates on how the coronavirus could affect family law matters as the situation develops or call me directly at (732) 631-8315.</p>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Does Your Business Have Insurance Coverage for COVID-19 Related Issues?http://www.hillwallack.com/?t=40&an=106965&format=xml&p=530920 Mar 2020Client Alert<p><em><img src="http://www.hillwallack.com/D444E6/assets/images/Attorneys/Todd_Leon_07222013.JPG" alt="" width="185" vspace="0" hspace="10" height="250" border="0" align="left" />Written by: <a href="http://www.hillwallack.com/todd-j-leon">Todd J. Leon</a></em><strong><br /> </strong></p> <p>The COVID-19 pandemic has brought with it a new reality of social distancing and working from home for many employees. For businesses, the response to the pandemic raises any number of issues, ranging from human resources to information technology to business continuity.</p> <p>Among these many concerns is whether or not businesses may have insurance to cover the financial losses that will potentially be caused by the slow down resulting from the pandemic.&nbsp;The answer, of course, depends upon the specifics of the language of the policies the business has.&nbsp;</p> <p>In the broad context, the likeliest source of coverage for COVID-19 related losses will be found under business interruption (or business income) insurance.&nbsp;If purchased, this first-party coverage is typically set forth under the Commercial Property section of a business&rsquo;s policy and, in general, provides coverage for &ldquo;direct physical loss of or damage to property.&rdquo;&nbsp;Also at issue is the impact of whether business income lost as a result of &ldquo;civil authority&rdquo; mandating closure will be covered.</p> <p>From the perspective of whether insurance coverage exists, the key question moving forward will be whether courts construe the coronavirus to satisfy this threshold requirement for triggering coverage.&nbsp;As always, there are arguments to be made on both sides of the equation.&nbsp;On the side of finding coverage, policyholders are sure to argue that the existence of the virus on surfaces on and off of the business&rsquo;s premises constitutes a &ldquo;physical loss&rdquo; to property.&nbsp;To advance this argument, the insureds will likely look to existing bodies of case law finding coverage in cases from the previous generation&rsquo;s mesothelioma litigation and perhaps analogous case law involving mold or other bacterial infestations.</p> <p>On the flip side, insurers are likely to counter with the argument that affected properties do not suffer &ldquo;direct physical loss&rdquo; as a result of a temporary conditions, such as a virus, that does not permanently alter the structure of the building.&nbsp;Moreover, many policies include a specific exclusion for &ldquo;Loss Due To Virus Or Bacteria&rdquo;, which the insurance industry began adding on to policies as early as 2006.</p> <p>As noted at the outset of this piece, in order to evaluate what coverage a business has &ndash; or might have, close scrutiny of the language of the insurance policy forms issued to that particular business.&nbsp;Litigation over the many issues presented is a near-certainty and, in fact, the first COVID-19 related coverage lawsuit was already filed earlier this week in a Louisiana State court by a restaurant seeking reimbursement from its insurer for losses suffered by the business as a result of the public gatherings limitations imposed by the civil authorities in New Orleans.&nbsp;The issue will be further informed by potential action by elected officials, as the New Jersey State Assembly recently introduced a bill designed to require insurance companies to pay business interruption claims related to coronavirus claims.&nbsp;While the fate of that particular piece of proposed legislation is in doubt, other efforts to create similar results may be forthcoming.</p> <p>We at Hill Wallack LLP are watching and tracking the many developing legal issues surrounding the COVID-19 pandemic and are prepared to discuss issues you or your business might have.&nbsp;As the effect of these issues are sure to continue to expand to impact more businesses, we stand ready to help and advise individuals and businesses with respect to their insurance coverage and contractual needs.<br /> <br /> &copy;2020 Hill Wallack LLP. All rights reserved. Please contact Hill Wallack for permission to reprint. Notice: The purpose of this Client Alert is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, accuracy and completeness of which cannot be assured. This Client Alert should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.</p>http://www.hillwallack.com?t=39&format=xml&directive=0&stylesheet=rss&records=10