Following are excerpts from newsletters recently published or soon to be published by various sections of the New Jersey State Bar Association. These briefs represent a small sampling of the informative articles available to NJSBA section members, who also have access to back issues of newsletters online at njsba.com by logging in using their member identification number.
Labor and Employment Law Quarterly
EEOC Protections for the Victims of Domestic Violence and Sexual Assault
by Denise M. Keyser and Kaitlin E. Picco
The statistics on domestic violence and sexual abuse are alarming, and reflect a widespread, endemic problem, which cuts across socio-economic, religious and ethnic lines, and impacts children and families across the nation. One nonprofit organization tackling the issue estimates that nearly one in four American women has experienced violence at the hands of a spouse or boyfriend, over 7,000,000 children live in households in which severe partner violence occurs, and almost 500 women are raped or otherwise sexually abused every day. Another suggests the problem is even greater, with one in three women experiencing sexual or physical abuse from a partner at some time during their lives, and more than 32,000,000 Americans affected by domestic violence each year.
Indeed, domestic violence is now the leading cause of injury to women in the United States. Studies have shown that the economic recession has only made a terrible problem worse.
Victims of domestic violence or sexual abuse are not singled out for protection by federal or New Jersey anti-discrimination laws, so beyond the obvious and compel-ling humanitarian and social concerns, should this issue matter to employers? The Equal Employment Opportunity Commission (EEOC) has answered this question in the affirmative. Perhaps recognizing the adverse impact that domestic abuse and sexual abuse can have on a worker’s ability to remain employed, on Oct. 12, 2012, the EEOC issued
Questions and Answers: The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking. In this guidance, the EEOC explains how Title VII and the Americans with Disabilities Act (ADA) can protect women or men who have endured domestic or sexual abuse. Derived from established case law and legal principles, the guidance provides examples of how current law provides job protection for this vulnerable population.
Public Utility Law Section Newsletter
PJM Files Changes to MOPR, Over New Jersey Objections
by Samuel A. Wolfe
On Dec. 7, regional electric grid operator PJM Interconnection asked the Federal Energy Regulatory Commission (FERC) to approve changes to PJM rules that would continue to work against New Jersey’s efforts to spur development of new electric generating capacity in the state. PJM’s proposal, overwhelmingly endorsed by stakeholders, would revise the Minimum Offer Price Rule (MOPR).
The MOPR sets a floor price for offers to sell capacity in PJM auctions. The purpose of the MOPR is to preclude new generators from making offers in PJM capacity auctions that would drive down the clearing price in those auctions. Current rules set a minimum offer floor at 90 percent of the net cost of building a new plant; the proposed changes would raise the floor to 100 percent, making it more difficult for new generators to clear in the auctions.
would also allow some exemptions from the MOPR, but those exemptions would be unavailable for new generators that could recover costs through a non-bypassable charge linked to the new generator clearing its offer in the auction.
PJM stakeholders had rejected five alternatives to the PJM proposal, including one from New Jersey. The New Jersey proposal would have kept the floor price at 90 percent, extended the exemption to projects recovering costs through non-bypassable charges, and relieved a generator from the MOPR after it cleared in one PJM capacity auction. In December, the Maryland Public Service Commission proposed tariff language that would allow state-sponsored generation development based on the state’s needs regarding reliability, fuel diversity, renewable energy, environmental quality, or brownfield redevelopment.
Both the New Jersey Board of Public Utilities, and the New Jersey Division of Rate Counsel, have protested PJM’s proposal and asked the FERC to reject it.
Support Modifications in a Disastrous Economy:
How Long Must You Suffer?
by Carmen Diaz-Duncan
Support modification motions have long been regarded as among the most challenging and difficult of applications to present to a court. This sentiment is even more appropriate in the current economic climate. While New Jersey commenced this year boasting a reduction in the unemployment rate, from 9.4 percent in Jan. 2010, to 9 percent in Jan. 2012, we are not out of the woods. Economic indicators appear to forecast improved financial days ahead; however, there is no way to predict when or if these changes will occur. In the meantime, we must deal with the influx of clients appearing at our office doors seeking relief from support obligations they can no longer meet.
As we all know, the plights of some clients are more genuine than others. Accordingly, current case law imposes upon the payor seeking a reduction in support the tremendous burden of proving a
prima facie showing of changed circumstances, precisely to ensure that only truly afflicted individuals are afforded relief from the courts. The questions posed today are: How do we set our client’s legitimate change of circumstances apart from the throngs of litigant’s who are crying wolf? What can be done for the client earning $80,000 per year, yet who is obligated to pay support based upon the $400,000 he was earning two years ago working on Wall Street? How do we prove that our client’s changed circumstances legitimately deserve relief?
LGBT Rights Section Newsletter
The Fall of DOMA?
by Stephanie Cañas Hunnell
A finding by the Supreme Court that the Defense of Marriage Act (DOMA) is unconstitutional will impact same-sex married couples in several areas, including taxation, spousal health insurance benefits, Employee Retirement Income Security Act (ERISA) benefits, bankruptcy, immigration, and dissolution. Unfortunately, to cover every one of these topics with any sufficiency, each would require a separate article of its own. Accordingly, this article only addresses the legal background regarding taxation and the Defense of Marriage Act, and how tax revenues may be impacted if DOMA is found unconstitutional.
DOMA, the 1996 act signed under President Bill Clinton, defines the word ‘marriage’ to mean “only a legal union between one man and one woman as husband and wife,” and the word ‘spouse’ refers only to “a person of the opposite sex who is a husband or a wife.”1 DOMA further provides that no state “shall be required to give effect to any public act…of any other State…respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such State.”
Since that time, there has been a legal basis for the disparate treatment between heterosexual married couples and same-sex married couples. Some of the ways same-sex couples are treated differently than their heterosexual counterparts include, but are not limited to:
- their inability to file joint federal income taxes and inherit ERISA plan benefits as a ‘spouse;’
- the fact that they do not qualify as a ‘surviving spouse’ for estate tax purposes;
- the fact that they are required to pay taxes on employee health insurance benefits for their partners;
- the fact that they are not eligible for tax-free transfers of property upon dissolution of their marriages; and,
- the fact that they are not permitted to deduct ‘spousal support’ payments
New Jersey Family Lawyer
Commentary: Is It Time to Retire the ‘Parent of Primary Residence’ Designation?
by Amy C. Goldstein
An increasing number of divorces, dissolutions and custody disputes are being diverted by agreement of the parties to alternative forms of dispute resolution (ADR), such as mediation and collaborative processes. Likewise, an increasing number of clients who have retained attorneys to represent them within the adversarial system are asking for quicker settlements to keep the costs of the litigation down. Even in high-conflict cases, because family courts have become overwhelmed as a result of judicial vacancies and budget restrictions, litigants and their attorneys have been selecting arbitration rather than waiting for trial dates. In these ADR, quasi-adversarial and adversarial cases, judges, litigants, mediators, parent coordinators and attorneys are looking for innovative, less expensive ways to arrive at custody agreements.
One very common question now being asked by clients and prospective clients who are trying to resolve their custody disputes outside of the courtroom is whether or not they ‘need’ to have a parent of primary residence (PPR) designation in their settlement agreements. We already know that, as with virtually every other settled issue, even if courts are required to designate a parent as the PPR after a custody trial, settling parties are not required to do so. Therefore, the question we are really being asked is not whether the designation is ‘required’ but, rather, whether the PPR designation is necessary and worth the fight. In light of the fact that the PPR designation is one of the most contentious issues (if not the most contentious issue) in custody cases, this is a legitimate and difficult question, with a great deal at stake, and it therefore deserves an answer. This article arrives at the conclusion that not only is the PPR designation unnecessary, but that the time has come to retire it along with its sidekick, the PAR (parent of alternate residence) designation.