News & Insights

What’s the Law? Attorney-Client Privilege and Work Product Doctrine in Internal Investigations

Archer attorneys, Peter Frattarelli and Simone Adkins, co-authored the New Jersey Lawyer article, “What’s the Law? Attorney-Client Privilege and Work Product Doctrine in Internal Investigations.” The attorney-client privilege analysis is never an easy one when internal investigations are conducted. In their article, Peter and Simone discuss navigating the complex waters of internal investigations when employers rely on the assistance of counsel. Often questions and confusion revolve around knowing what aspects of the investigation may be protected by the attorney-client privilege or work product doctrine, and outside the scope of discovery. New Jersey courts have evaluated this issue and developed an outline of how to address these situations. To read the complete article, click here. ...read more

In the Face of Affirmative Action: Persisting With Law Firm Diversity Efforts

The Supreme Court decision in Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023) held that affirmative action programs are unconstitutional in private college admissions. The decision left businesses that are committed to diversity initiatives worried about what it would mean for their DEI programs. However, the decision does not invalidate private employment diversity efforts. Shelley Smith, Archer’s Chief Diversity, Equity and Inclusion Officer and Partner in the firm’s Business Litigation and Labor and Employment Groups, recently authored The Legal article, “In the Face of Affirmative Action: Persisting with Law Firm Diversity Efforts,” which reviews the Supreme court decision. In the article, Shelley discusses the legal field being among the least diverse professions and how law firms can continue working towards a more diverse and inclusive industry - despite the current attacks against affirmative action. To read the article, click here. ...read more

Michael Horn & Dylan Newton Co-Author ROI-NJ Article, "Post-Pandemic Litigation: Trade Secrets, Vendor Contracts and Employment Policies May Top List"

"Post-Pandemic Litigation: Trade Secrets, Vendor Contracts and Employment Policies May Top List" By: Michael Horn & Dylan Newton, ROI-NJ (July 12, 2021) ...read more

Court Strikes Down Overtime Rule That Increased Salary Thresholds for Overtime Exemptions

On November 15, 2024, the United States District Court for the Eastern District of Texas set aside and vacated the United States Department of Labor (DOL) rule that expanded overtime eligibility for employees.  The rule had been issued by the DOL earlier this year, increasing the minimum salary levels for an exemption to the overtime requirements.  To qualify for what is known as a “white-collar” exemption to overtime, and in addition to other requirements, employers must pay employees a minimum salary. The minimum salary requirement had been $684 per week, or $35,568 annually.  Pursuant to the first part of the new DOL rule, which had already gone into effect on July 1, 2024, the minimum salary for an overtime exemption increased to $844 per week, or $43,888 annually.  The minimum salary was set to increase again on January 1, 2025 to $1,128 per week ($58,656 annually), meaning that employees who earned less than that amount would be generally entitled to overtime pay if they worked more than forty hours in a week. The court, however, struck down the entire rule and did so on a nationwide basis.  Thus, the minimum salary requirement for an overtime exemption is now $684 per week again ($35,568 annually).In setting aside the rule, the court reasoned that the DOL exceeded its authority by increasing the salary thresholds too high, which the court stated in essence created a “salary only” test for overtime exemption eligibility. The increase scheduled for January 2025, for example, would have resulted in a 65% increase from the $684 per week requirement. This was problematic because the Fair Labor Standards Act (FLSA), which sets forth the white-collar exemptions, provides for a job duties test as well for an overtime exemption, whereby employees must primarily perform certain executive, administrative, or professional duties to qualify for an overtime exemption.  The court explained that the DOL increases “effectively eliminate[d]” consideration of this other test. The DOL rule also provided for automatic increases to the minimum salary threshold every three years. The court held that the DOL also lacked this authority because the FLSA requires each increase to occur via regulation under the Administrative Procedure Act.Given this court ruling, the DOL increases to the minimum salary requirements are now null and void. However, employers must keep in mind that some states have minimum salary requirements that are greater than the requirement under the FLSA. And while the recent presidential election result may mean that the DOL will not appeal this court decision, it remains to be seen whether the new administration will enact a smaller increase to the minimum salary requirement.If you have any questions or need more information, please contact Douglas Diaz at ddiaz@archerlaw.com or 856-616-2614, or any member of Archer’s Labor and Employment Group.  ...read more

Pennsylvania Federal Court is Latest Court Refusing to Halt FTC's Non-Compete Ban

In late July 2024, a Pennsylvania federal judge declined an employer’s request to enjoin the Federal Trade Commission’s non-compete Rule, which imposes a comprehensive ban on non-competes with most employees. This ruling is the latest court that declined to stop the FTC near-total ban on non-compete agreements, which is still set to take effect on September 4, 2024. Despite this, other federal courts will have more opportunities before September 4th to stop the FTC’s ban, so stay tuned. In this case, ATS Tree Services LLC v. Federal Trace, a tree-care company with twelve employees, who required its employees to sign non-compete agreements, sought to stop the FTC’s non-compete prohibition Rule. The tree company’s agreements prohibited the employees from working for direct competitors following separation in the geographic area the employee worked for one year.The court denied the injunction for two reasons: a lack of “irreparable harm” and an unlikelihood of winning the case on the merits. As to irreparable harm, the Court ruled that costs of compliance with the Rule – such as the expenses of sending out notices, attorney’s fees, and having to scale back specialized training – were nothing more than minimal costs, and were not sufficient to justify an injunction. The Court also felt that the risk of losing employees was merely speculative and a “risk” of irreparable harm is not enough. Perhaps more significant is the second part of the Court’s analysis, which concluded that the tree company was not likely to be successful on the merits of its claim that the FTC was acting outside of its authority. The Court found it “clear that the FTC is empowered to make both procedural and substantive rules as is necessary to prevent unfair methods of competition.” Further, the Court found that it has been well-demonstrated that Congress intended “to retain the existing authority empowering the FTC to prevent unfair methods of competition, and the discretion to determine the appropriate mechanisms to accomplish that directive.” In reaching this finding, the Court relied upon the FTC’s historical substantive rulemaking and Congress’s inaction of limiting the FTC’s substantive authority in the past, despite the opportunities to do so. Finally, the Court ruled that overlapping jurisdiction between state and federal governments in in this area also does not preclude the FTC from issuing rules to prevent unfair methods of competition. This is so, according to the Court, because parallel state laws are not entirely preempted, and conflicting state laws are rightfully preempted as the FTC is empowered to prevent “unfair methods of competition.” As of now, the Rule will take effect on September 04, 2024. Yet, as we have explained, several other legal challenges are pending, and one of more of them is expected to be decided before September 4th. So, an injunction or hold on the FTC’s Rule may still happen before the deadline. Our firm has issued a number of prior alerts on FTC’s Non-Compete Rule. Please see:  ...read more

The "Ban-Wagon" Has Arrived in Pennsylvania Banning Many Non-Competes for Health Care Practitioners

Governor Josh Shapiro has signed the “Fair Contracting for Health Care Practitioner’s Act” (“the Act”), Pennsylvania’s first statute imposing limitations on the use of non-competes in the Commonwealth. Pennsylvania joins the growing list of a dozen states which have enacted legislative bans or limitations on healthcare provider non-competition agreements in recent years.The Act, which becomes effective January 1, 2025, represents the legislature’s response to the current trend of health system consolidation and direct health care practitioner employment, and is a seismic shift in the enforcement of non-compete covenants entered into between Pennsylvania employers and healthcare practitioners. Subject to certain exceptions, a “noncompete covenant” entered into after January 1, 2025 is “deemed contrary to the public policy and is void and unenforceable by an employer.” A “noncompete covenant” is defined as an “agreement that is entered into between an employer and a healthcare practitioner in this Commonwealth which has the effect of impeding the ability of the healthcare practitioner to continue treating patients or accepting new patients, either practicing independently or in the employment of a competing employer after the term of employment.” A “healthcare practitioner” is defined under statute and includes a medical doctor, a doctor of osteopathy, a certified registered nurse anesthetist and certified nurse practitioner, and a physician’s assistant.The Act does provide several specific exceptions. First, an employer may enforce a noncompete covenant if the length of the noncompete covenant is no more than one year, provided that the healthcare practitioner was not dismissed by the employer. Second, a noncompete covenant can be enforced as to a healthcare practitioner in ”(a) the sale of the healthcare practitioner’s ownership interest in, or all or substantially all of the assets of, the business entity; (b) a transaction resulting in the sale, transfer or other disposition of the control of the business entity; or (c) the healthcare practitioner’s receipt of an ownership interest in the business entity. However, a preexisting noncompete covenant may be rendered void and unenforceable if a healthcare practitioner is not a party to the sale, transfer or other disposition. Third, an employer may enforce contractual provisions that allow the employer to recover reasonable expenses from a healthcare practitioner, if the expenses are: (a) directly attributable to the healthcare practitioner and accrued within the three years prior to separation, unless separation is caused by dismissal of the healthcare practitioner; (b) related to relocation, training and establishment of a patient base; or (c) amortized over a period of up to five years from the date of separation by the healthcare practitioner.To ensure continuity of care between patients and providers, the Act requires employers to notify patients of a departing healthcare practitioner within 90 days following the departure of a healthcare practitioner from an employer. The employer must notify the healthcare practitioner’s patients seen within the past year of (a) the healthcare practitioner’s departure; (b) how the patient, if desired, may transfer the patient’s health records to the departed healthcare practitioner; and (c) that the patient, if desired, may be assigned to a new healthcare practitioner within the existing employer, to continue receiving care there.Archer's Labor & Employment Group will continue to monitor the impact of the Act when it takes effect in 2025 and thereafter, as the Act specifically mandates that by December 31, 2027, the Pennsylvania Health Care Cost Containment Council perform a study on the effects of the Act, and report its findings. For any questions, please reach out to Peter Frattarelli, Chair of the Labor & Employment Group, at 856.354.3012 or pfrattarelli@archerlaw.com, Thomas Muccifori, Chair of the Trade Secret Protection & Restrictive Covenants Group, at 856.354.3056 or tmuccifori@archerlaw.com, or Lisa Albright, Partner in the Healthcare Group, at 609.580.3710 or lalbright@archerlaw.com.DISCLAIMER: This client advisory is for general information purposes only. It does not constitute legal or tax advice, and may not be used and relied upon as a substitute for legal or tax advice regarding a specific issue or problem. Advice should be obtained from a qualified attorney or tax practitioner licensed to practice in the jurisdiction where that advice is sought.  ...read more

How Should Midsize Firms Navigate DEI Landmines

Shelley R. Smith, Archer's Chief Diversity, Equity and Inclusion Officer, was interviewed for the Law.com article, "How Should Midsize Firms Navigate DEI Landmines?" Shelley, a partner in the firm's Labor & Employment Group, discussed how midsize firms can move forward with DEI programming without risking litigation or other issues related to recent DEI pushback. The article offers practical advice on how midsize firms can ensure they're compliant with the law and able to continue the efforts they started before as much resistance had occurred. ...read more

Peter Frattarelli Quoted in New Jersey Law Journal Article, "White Employees Are Suing for Discrimination. What Will Jurors Think?"

Peter Frattarelli, Chair of Archer's Labor & Employment Group, was recently interviewed for Charles Toutant's NJ Law Journal article, "White Employees Are Suing for Discrimination. What Will Jurors Think?" The article addresses a recent Supreme Court ruling on affirmative action in higher education which will likely result in an uptick in workplace discrimination suits by white plaintiffs. ...read more

Peter Frattarelli Quoted in Delaware Law Weekly Article "Evidence Against Fox News in Del. Case May Support Strongest-Ever Argument for Actual Malice"

Peter Frattarelli, Chair of Archer’s Labor & Employment Law Group, was recently interviewed by Ellen Bardash and quoted in the Delaware Law Weekly article, "Evidence Against Fox News in Del. Case May Support Strongest-Ever Argument for Actual Malice." The article is centered around the Dominion Voting Systems’ defamation case against Fox News and parent company Fox Corporation, which is scheduled to go to trial for five weeks beginning on April 17, 2023. Dominion will argue that Fox New executives acted with actual malice following the 2020 presidential election results. ...read more

Peter Frattarelli to be Interviewed on New Jersey 101.5 Town Hall Broadcast

Peter Frattarelli, Chair of Archer’s Labor and Employment Group will be interviewed on New Jersey 101.5 Town Hall broadcast, hosted by Eric Scott, scheduled for Thursday, November 11th at 7:00pm. This program will  focus on vaccine mandates and the legal obligations, rights and options available for both employer and employee. ...read more

Peter Frattarelli Interviewed on New York’s TALK1300AM & 98.7FM Talk Radio Segment “The Paul Vandenburgh Show”

Peter Frattarelli, Chair of Archer’s Labor and Employment Group was interviewed for the second time on New York’s talk radio, The Paul Vandenburgh Show, on the recent revelation of one of New York Governor Andrew Cuomo's alleged sexual assault victims coming forward. ...read more

Peter Frattarelli Elected President of Board of Directors of Habitat for Humanity of Burlington and Mercer Counties

Archer partner Peter L. Frattarelli was recently elected President of the Board of Directors of Habitat for Humanity of Burlington and Mercer Counties, a nonprofit organization and affiliate of the national organization that has been working for decades to provide decent, affordable housing to families. Peter is a longtime Habitat volunteer and Officer of the Board of Directors, most recently serving as Vice President. Over the past nine years, he has used his experience in labor and employment law to provide assistance and guidance to the organization.  Peter will serve as President for a two-year term ending on June 30, 2023. ...read more

Archer Attorneys to Present CCSNJ’s Annual 2024 “HR Bootcamp”

Archer Labor & Employment Law attorneys will present the 2024 Chamber of Commerce of Southern New Jersey’s annual “HR Bootcamp." Program information is as follows:  ...read more

Labor & Employment Seminar

Please join us for a complimentary Labor & Employment Breakfast Seminar. This course will cover the major state and federal laws affecting labor and employment law. ...read more

Peter Frattarelli to Moderate NJICLE's "Recent Developments in NJ Law: 2023 Update"

Peter Frattarelli, Chair of Archer's Labor & Employment Group, will moderate an all day NJICLE CLE seminar providing insight into the latest developments in Labor and Employment law this year. ...read more