Litigation Quarterly Advisor – Summer 2026

requires all-party consent for phone calls but only one-party consent for in-person conversations. A multi-state call can shift from lawful to unlawful the moment a participant in a stricter jurisdiction joins the line, exposing parties to civil or criminal liability.

Beyond legality, the practical question is should a conversation be recorded? The obvious benefit is an accurate record of what was said and by whom—an employee may capture a discriminatory remark, or the recording may definitively show no such remark was made. Recordings can also demonstrate proper or improper handling of accommodation requests and serve as powerful evidence in employment lawsuits for either side. However, employers who record HR interactions risk creating discoverable records that, out of context, may hurt their position—especially when inexperienced HR representatives are involved. Additional concerns include the perception that the recorder is baiting others into compromising statements.

Once a recording exists, it is fair game in litigation. The party who made it, must preserve the complete, unedited original. Recordings may open the door to forensic imaging of devices under the theory that additional recordings likely exist. Trimming or selectively producing recordings can lead to spoliation sanctions, including adverse inferences, legal fees, or dismissal of claims. Every company should have a recording policy that is thought through and tailored to your workplace.

The amendments also broaden the scope of the NJFLA itself by expanding coverage to employees of businesses with 15 or more employees, reduced from 30 employees, and reducing the employee eligibility requirements. Specifically, while previously, employees had to have worked for at least 12 months and 1,000 hours to be eligible for leave, employees are now eligible for NJFLA leave after only three months of employment and 250 hours worked in the preceding 12 months. These changes significantly expand both employer coverage and employee eligibility under the NJFLA, bringing many smaller employers and newly eligible employees within the statute’s protections.

Employers with New Jersey employees should consult with legal counsel to update their leave policies, employee handbooks, and leave administration practices to ensure compliance with the new requirements.

though, if the recipient of the information knew or had reason to know the trade secret was derived through improper means—it does not impose strict liability for innocent acquisition. In addition, something not qualifying as a trade secret under the NJTSA, may still warrant protection as “confidential information” under New Jersey common law (i.e., court decision-based law). In either case, employers must take reasonable steps to protect that which they claim is confidential or a trade secret, and the failure to do so can stop an employer’s efforts to recover or stop the misuse of the information dead in its tracks.

Employers have several options to maintain their confidential and proprietary information. Non-Disclosure Agreements (NDAs) and Confidentiality Agreements are the basic starting point and generally are considered “reasonable efforts” to maintain secrecy, a necessary requirement under the law. Non-solicitation agreements—prohibiting a departing employee from soliciting the employer’s customers or other employees—can be used to protect customer lists and the like, and are generally considered more easily enforced than non-compete agreements in New Jersey, although still subject to a reasonableness standard. Despite all the hullabaloo over the past several years about restrictive covenants being made illegal, they are still enforceable in New Jersey, New York, and beyond.

Beyond standalone NDAs or restrictive covenants, employers should also generally include confidentiality obligations in employment agreements, offer letters, independent contractor agreements, and vendor/supplier contracts. Robust internal policies are essential to demonstrating reasonable measures under the NJTSA. Key measures include, but are not limited to access controls and exit protocols for departing employees. Annual or more frequent reminders to the workforce about their confidentiality obligations and the seriousness with which the employer treats confidentiality are also helpful tools. These measures serve dual purposes: they protect the information operationally and they create the evidentiary record of “reasonable efforts” required to establish trade secret status in litigation.

States like California, Minnesota, North Dakota, and Oklahoma have taken the strongest position by banning employee non-competes almost entirely (though they still allow them in limited circumstances such as the sale of a business), while generally permitting other forms of restrictive covenants like non-solicitation and confidentiality agreements provided they are reasonable. Another group of states, Colorado, Illinois, Massachusetts, Oregon, New Hampshire, Washington, and the District of Columbia, have passed statutes imposing guardrails on various restrictive covenants, such as minimum salary thresholds an employee must earn before a non-compete or non-solicitation covenant can apply, or requirements that employers give advance written notice before any such restriction takes effect. Still other states, such as Texas, Georgia, Arkansas, and Alabama, take a more permissive approach, with statutes that spell out what kinds of business interests restrictive covenants may protect and establish default time and geographic limits that courts will generally treat as reasonable for non-competes, non-solicitation agreements, and similar restrictions. Washington State has enacted a full ban, set to take effect in June 2027.

As reminder in New Jersey, courts apply a well-established common law reasonableness test when deciding whether to enforce a restrictive covenant. To be upheld, a non-compete or similar restriction must: (i) protect a legitimate business interest of the employer (such as confidential information, trade secrets, or customer relationships); (ii) be reasonable in its duration, geographic scope, and the type of activity restricted; and (iii) and must not impose an undue hardship on the employee. New Jersey courts, rather than striking down an overly broad restriction, will blue pencil the provision; meaning it narrows its terms to what the judge in that case considers fair and reasonable.

New Jersey’s legislature does have a proposed bill that would drastically change the state’s restrictive covenant landscape but as of today’s date, it has not been adopted as law in New Jersey. We will provide an update on that pending legislation if it becomes law.

individual to participate in employee benefit plans—an employer that gets the classification wrong faces substantial exposure. Potential liabilities include back taxes and penalties for failure to withhold, back pay and liquidated damages for unpaid overtime, penalties for underpayment of workers’ compensation premiums and unemployment taxes, damages under federal and state anti-discrimination laws, and the worker’s attorneys’ fees and costs. Notably, it is irrelevant that the worker requested or agreed to independent-contractor status; the DOL or the courts will ultimately make their own determination.

In the official comments to the new regulations, the DOL maintains that the updated rules are consistent with existing law and were promulgated in response to the N.J. Supreme Court’s suggestion in East Bay Drywall, LLC v. Department of Labor and Workforce Development, 251 N.J. 477 (2022), that the DOL provide more specific guidance on application of the ABC test. Given the complexity of these rules and the consequences of noncompliance, employers should exercise caution before designating any worker as an independent contractor.

and the employer sanction of recording may violate the law of some jurisdictions unless the employer provides advance notice.

Employer concerns are compounded when the Smart Glasses are AI-enhanced. The transmission of workplace information without employer authorization to a third party that will use that information not only to generate content for the specific user but almost certainly to generate content for millions of other users raises very problematic issues for any employer. It’s not far-fetched that the image of a co-worker or the text of highly confidential information could be included in content generated for any user of that AI large language model.

Employer responses to these issues will vary. Some employers may desire to ban Smart Glasses from the workplace. Other employers will want to place limits on their use. What is not recommended, however, is to ignore the issue until one employee reports to management a co-worker’s donning of Smart Glasses at work. A reactive response will inevitably be half-cocked and not well received by a court or regulator.