Category: Regulatory Counseling and Departmental Action

What You Need to Know About Federal Regulatory Reform

President Trump and the newly-elected Congress have made regulatory reform a main focus of their policy agenda. With Republicans controlling both the White House and Capitol Hill for the first time in over a decade, significant actions were taken within the first several weeks of coming into power that regulated industries should be aware of. Implementation of a Regulatory Freeze – The Trump Administration froze all federal rulemaking by issuing a policy memorandum to the Executive Branch departments and agencies. The memorandum declared that no regulations should be submitted “until a department or agency head appointed or designated by the President … reviews and approves the regulation.” The memorandum also required the Executive Branch agencies to either withdraw or postpone all agency regulations submitted to the Office of the Federal Register. The only exceptions to the regulatory freeze are for “emergency situations or other urgent circumstances relating to health, safety, financial, or national security matters” or “regulations subject to statutory or judicial deadlines.” Reducing Regulations for Domestic Manufacturing – President Trump directed the Executive Branch departments and agencies to support the expansion of manufacturing in the United States through “expedited reviews of and approvals for proposals to construct or expand...

New Jersey’s Legislature Attempts to Override Governor’s Objections to “Equal Pay” Bill

The sponsors of pay equity legislation passed by the New Jersey Senate and Assembly earlier this year have announced that the State Senate will attempt to override Governor Christie’s veto of the bill on December 19, 2016. Senate Bill 992/Assembly Bill 2750 would amend the Law Against Discrimination (“LAD”) to promote gender pay equality. The New Jersey bill follows a trend of recently enacted state laws, in California, New York, Maryland, and Massachusetts, that aim to make it easier for plaintiffs to bring pay equity claims and subject employers to potentially greater damages. The bill would make it an unlawful employment practice, under the LAD, to discriminate against employees on the basis of sex by compensating an employee of one sex at a lesser rate than an employee of the other sex for “substantially similar work.” The “substantially similar” standard, which diverges from the “equal work” standard of the federal Equal Pay Act, mirrors the California Fair Pay Act, which became effective in January 2016. Under the proposed legislation, an employer would be permitted to pay a different rate to an employee if it can show that the positions are not “substantially similar” and the difference in compensation is based on...

Equity Crowdfunding Turns Six Months Old: Looking at Title III for Investors and Businesses

November 16, 2016 marked the six-month anniversary of Title III of the JOBS Act of 2012 being fully implemented. Title III and the rules promulgated by the Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA) allow businesses to raise capital through “equity crowdfunding.” This is the act of raising capital from others via the internet, by seeking small investments from a large number of potential investors through the use of licensed broker-dealers or internet funding portals. These investments are exempt from the traditional security registration requirements. People are generally familiar with existing “crowdfunding” platforms such as Kickstarter, Indiegogo, and GoFundMe which have been in existence since at least 2008. These platforms practice rewards-based crowdfunding.  Backers give a “campaign” money, and the backer gets back a “reward,” i.e., a thank you note or the first edition of a product. Title III, however, allows for “equity crowdfunding,” which is the ability to buy ownership in an early-stage company and hopefully reap a monetary return on that investment. Instead of getting that thank you note or new product, the investor is getting a piece of equity in the company he or she just invested in. Many industry professionals and...

NJ Legislators Look to Prohibit Asking Applicants about Salary History

The New Jersey Legislature is poised to take up another thorny issue for employers, salary history. Described by legislative sponsors as an effort to promote pay equity, the legislation would amend the New Jersey Law Against Discrimination to bar employers from asking job applicants about their salary history, or relying on it to determine salary at any stage in the hiring process. Two separate pieces of legislation have been introduced that prohibit an employer from inquiring about the salary history of an applicant. Assembly Bill 4119 was introduced on September 15, 2016 and referred to the Assembly Labor Committee. Senate Bill 2536 was introduced on September 15, 2016 and referred to the Senate Labor Committee. New Jersey would be the second state to pass pay equity legislation prohibiting asking applicants about salary history. In August 2016, Massachusetts became the first state to pass such an Act. The Massachusetts Act banned employers from inquiring into an applicant’s salary history until “after any offer of employment with compensation has been made to the prospective employee.” The bill introduced to the New Jersey Assembly similarly provides that an employer may “confirm, or permit the prospective employee to confirm, the wage or salary history...

Why and How – Basics of Government Affairs (Part 1 of 2)

“Don’t you know someone in the Governor’s Office?” “You know the Senate President, right?” “That woman we met at that Chamber of Commerce event last month, she is the Chief of Staff to the Assembly Speaker, right?” After a lobbyist hears these words, most times the next sentence goes something like this: “We are having a problem with … and our CEO asked me to see what we can do in order to …” Then the client relates to us the sad tale of a difficult piece of legislation, or regulation, or land use development that will negatively impact the client’s core business. The CEO then asks you to fix the problem and save the day. And more times than not, the final nail in the coffin necessary to sink the client’s business interest in this bill, regulation, or development is being acted upon by the government … in a matter of days. In these types of cases, it is simply too late. Too late to begin to think about a government affairs strategy. The cake has already been baked. These scenarios happen, unfortunately, more frequently than one would think, even among sophisticated businessmen and-women across a myriad of industries....

With the Budget Done, Line Item Veto Shapes the FY17 Budget

On June 27, 2016, the New Jersey Legislature sent S17, the FY 2017 budget bill, to Governor Christie. S17 makes various language changes and adds $275 million to the Governor’s proposed budget. Usually, the Governor is limited to three options when reviewing passed legislation. He can accept the bill as it is written, veto the bill in its entirety or suggest changes, or send it back to the Legislature. The budget bill is different. The New Jersey Constitution gives the Governor the ability to enact laws, that appropriate money, while reducing or removing specific line items. Article V, Section I, paragraph 15 provides that “If any bill presented to the Governor shall contain one or more items of appropriation of money, he may object in whole or in part to any such item or items while approving the other portions of the bill. In such case he shall append to the bill, at the time of signing it, a statement of each item or part thereof to which he objects, and each item or part so objected to shall not take effect.” That same section also grants the Legislature the ability to override the Governor’s line item veto by a...

Waterfront Access Regulations Make Long Walks on the Beach More Complicated

For the second time in eight years, the New Jersey Appellate Division has rejected the State’s waterfront access regulations. On December 22, 2015, the court held in Hackensack Riverkeeper v. New Jersey Department of Environmental Protection that the most recent iteration of the waterfront access rules exceeded the authority of the NJDEP. This decision prompted quick legislative and executive action prior to the end of the 216th Legislative Session, and ushers in the possibility of future legislative action. NJDEP initially issued waterfront access regulations in 2007 that mandated broad public availability. These regulations were struck down by the Appellate Division in Borough of Avalon v. New Jersey Department of Environmental Protection, 403 N.J. Super. 590 (App. Div. 2008), certif. denied, 199 N.J. 133 (2009). In response to Avalon, the NJDEP issued new regulations in 2012 and 2015. The 2012/2015 regulations required each town to develop its own public access rules, known as Municipal Public Access Plans (“MPAP”). The MPAP would be reviewed and approved by the NJDEP on a case-by-case basis to ensure proper public access. After the NJDEP’s approval, the MPAP would then be incorporated into the town’s master plan. Upon a challenge from various groups, the Appellate Division...