Please note that, in light of Governor Murphy's recent "stay at home" order in New Jersey due to the COVID-19 pandemic, McLaughlin & Nardi, LLC's attorneys and staff are working remotely at this time. However, we are still ready, willing, and able to address all of your individual and business legal needs. Please contact us by phone at (973) 890-0004 or email at info@esqnj.com. We are committed to providing the same high level of legal services that our clients have come to expect over the years. Thank you.

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A recent New Jersey construction law opinion by the Appellate Division in the case of CNJ Construction Corporation vs. Autobuilders General Contracting Services, Inc. illustrates just how important the precise language in a construction contracts is, and just how important itconstruction-9-10-300x225 is to have a well-written contract.

The Case of CNJ v. Autobuilders

Autobuilders General Contracting Services, Inc. was general contractor on a project for the construction of a Maserati dealership in Morris County.  Autobuilders entered into four subcontracts with CNJ Construction Corporation for demolition, concrete, steel and site work on the project.  Each of the subcontracts contained a provision that Autobuilders could terminate the contracts for cause if CNJ failed to perform, but had to give CNJ three days written notice prior to termination, during which time CNJ could cure the default and avoid termination.  The notices had to be delivered by certain specified means, which did not include regular mail.  No notice was required if CNJ abandoned the job.  The contract provided that if CNJ was terminated for cause, it would be liable for any increased cost incurred by Autobuilders for completing its work on the project with other subcontractors.

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An important New Jersey employment law decision was recently issued by the Appellate Division in the case of Dibuonaventura vs. Washington Township.  Thesupreme-administrative-court-3565618_960_720-300x200 case has a long and tangled history, but this decision illustrates several important employment law rules affecting New Jersey government employees.

Background: Dibuonaventura I & II

Joseph Dibuonaventura was a police officer in Washington Township.  In 2012, he pulled over the Township’s former mayor and charged him with driving while under the influence of alcohol and refusing to take a breathalyzer test.  The former mayor disputed the charges and lodged internal affairs and criminal complaints against Officer Dibuonaventura.  Eventually the officer was indicted, and the Township suspended him pending the outcome of the criminal charges.  He was eventually found not guilty of all criminal charges by a jury.

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A recent New Jersey employment law decision in the case of Matter of Shyner examined the procedures available to New Jersey State Troopers to appeal employer imposed discipline, and the standards which appellate courts will utilize to review disciplinary decisions by the Superintendent of New Jersey State Police.

The Shyner Case.

Dawn Shyner was a lieutenant in the New Jersey State Police.  In 2014 she called 911 because of an altercation with her estranged husband; local police responded.  No charges were filed, nor was a domestic violence restraining order sought.  In accordance with New Jersey State Police protocols, she notified her supervisor and surrendered her weapon.  During that meeting her supervisor told her that he did not believe the incident would result in a domestic violence investigation, although undoubtedly an ordinary internal affairs investigation would ensue.

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The Arafa Case

The New Jersey Supreme Court issued an opinion in the case of Arafa v. Health Express Corporation in a consolidated appeals about a niche question regarding the interplay of the Federal Arbitration Act (the “FAA”) and the New Jersey Arbitration Act (the “NJAA”) regarding the judge-gavel-1461998219JBc-300x200enforceability of agreements in employment contracts to arbitrate disputes under New Jersey employment law.  The consolidated cases were both brought as class actions by employees whose duties included driving to make deliveries for their employers.  In one of the appeals it was clear that the employees were making deliveries outside the state as well as in it, and were therefore engaged in interstate commerce; in the other it was not clear.  In both cases the employers argued that the cases were not covered by the FAA, which contains an exemption which provides that the FAA will not apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” which the United States Supreme Court has defined to include interstate deliveries.  Because the drivers were not covered by the FAA due to the exception, the employers argued, they were covered by the NJAA, which did not contain such an exemption, and the arbitration agreements were therefore enforceable.  Thus, the employers argued, the lawsuits in Superior Court should be dismissed and the cases submitted to binding arbitration.  The trial judges in the Law Division of the Superior Court of New Jersey agreed with the employers and dismissed the suits and ordered them to arbitration.  In both cases, the employees separately appealed, and different panels of the Appellate Division of the Superior Court reached different decisions.  To resolve the split, the New Jersey Supreme Court agreed to hear the appeals.

Why does this matter?  If it seems pretty arcane, it has significant real world consequences.  First, the employees sued for unpaid overtime under the New Jersey Wage and Hour Law because New Jersey law and New Jersey courts are seen – rightly or wrongly – as more friendly to employees than federal court, which of course is why the employers didn’t want the case there.  Moreover, arbitration is seen as much more friendly to employers than employees, which is why the two sides were fighting over it.

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Employment Law Evidence Issues

Our employment lawyers represent employees and employers in all aspects of New Jersey employment law.  One of the most litigated issues is the evidence which an employee must present to demonstrate that retaliation or discrimination was behind an adverse action, such as supreme-administrative-court-3565618_960_720-300x200firing or demotion.  The Appellate Division recently issued an important decision on the ability of jurors to infer retaliation from circumstantial evidence.

The Yatauro Case

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Our employment attorneys represent employees in New Jersey Civil Service appeals and disciplinary proceedings.  One frequent matter of contention in the New Jersey Civil Service System is bypassing candidates for selection or promotion under the “Rule of Three.”

The Rule of Three

The New Jersey Civil Service Act requires that hiring and promotion must be based on fitness and merit, determined by competitive Civil Service examinations wherever possible.  After a test, the New Jersey Civil Service Commission will issue a list of eligible candidates ranked in order of their scores.  Hiring and coppromotion must be made according to the eligible candidates’ ranks on the list.  However, an exception exists.  The Rule of Three allows New Jersey Civil Service employers to bypass eligible candidates ranked higher on hiring and promotion lists in favor of lower ranked candidates so long as they select one of the top three eligible candidates remaining on the list.  After each decision to hire or promote, the Rule of Three evaluation begins all over again.  So, for example, if the first candidate is selected, the employer may then select any of the candidates ranked second through fourth for the second spot.

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The Chancery Division of New Jersey’s Superior Court recently issued a public employment law decision in the case of Petrella v. The Hackensack Board of Education which is important for New Jersey teaching staff members because it examined the grounds for overturning an arbitration decision on tenure charges under the TEACHNJ Act.judge-gavel-1461998219JBc-300x200

Under New Jersey employment law, tenure confers many benefits on teaching staff members.   A teacher or other teaching staff member, such as an athletic director, who has tenure may not dismissed or have their pay reduced for any reason other than incapacity, inefficiency, conduct unbecoming, “or other just cause.”  It also gives teaching staff members appeal rights if tenure charges are filed against them, which includes binding arbitration under the TEACHNJ Act.

In the Petrella case, tenure charges were filed against a tenured athletic director for:

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New Jersey employment law provides that government employees may be fired for conviction of a crime, and for many crimes they must be fired.  However, if they are exonerated they may be reinstated to their position.  They may be subject to further discipline, but if they are not they may also receive back pay, police-hoboken-train-stationseniority and benefits for the period of their suspension.

Suspension During Criminal Charges

New Jersey Civil Service Commission regulations provide that an employee’s conviction of a crime is grounds for discipline.  An employee suspended while a criminal complaint or indictment is pending must be served with a Preliminary Notice of Disciplinary Action (known as a “PNDA”). The PNDA should include a statement that forfeiture of the employee’s position may result, and that the employee may choose to consult with an attorney.  In this case representation by an attorney is always advisable.  Within five days of receipt of the PNDA, the employee may request a departmental hearing. If no request is made (within five days or an agreed upon extension) the employer may issue a Final Notice of Disciplinary Action (an “FNDA”).

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Under New Jersey construction law, each county must establish a construction board of appeals. A construction board of appeals hears the applications of any “person who is aggrieved by any ruling, action, notice, order or decision of a local enforcing agency that enforces either the New Jersey Uniform Construction Code or the New Jersey Uniform Fire Code, including, without limitation, any refusal to grant an application or any failure or refusal to act upon an application, building-home-construction-contractor-blueprint-architecture-300x200but not including any order requiring the taking of emergency measures….”  This is an important tool under New Jersey construction law to challenge wrongful denials by local authorities of building and construction applications.

Most county construction boards of appeals have websites with information about their locations, hours and local procedures.  For example, the Passaic County Board of Construction Appeals can be found here.  The Essex County Board of Construction Appeals can be found here.  The Bergen County Board of Construction Appeals can be found here.  The Monmouth County Board of Construction Appeals can be found here.  The Morris County Board of Construction Appeals can be found here.

Appeals must be filed and received by the local county construction board of appeals within 15 days of receipt of the written notice of the action, ruling, notice or order which is to be appealed.  While the law states 15 days from receipt, we recommend that appeals be received by the construction board of appeals within 15 days from the date on the notice to avoid any later dispute over the date of receipt and the possible rejection of the appeal as untimely.

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In a landmark decision, the United States Supreme Court has ruled that discrimination because of a person’s sexual orientation or gender identity constitutes illegal sex discrimination in Violation of Title VII of the Civil Rights Act of 1964.  This ruling applies nationwide, and means that employers may not fire, demote, harass, refuse to hire, or take any other negative action against employees because they are gay, lesbian, bisexual or transgender.  This has long been the state of us-supreme-court-300x200New Jersey employment law under New Jersey’s Law Against Discrimination

Title VII and the Bostock Case

Title VII prohibits discrimination against employees because of sex.  Title VII specifically provides that

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