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The law firm of McLaughlin & Nardi, LLC, has been awarded the Equal Justice Medal by Legal Services of New Jersey for the Firm’s pro bono contributions to low income New Jersey residents.

While all of our attorneys do community service and pro bono legal services, Pauline Young by far does the most, and this award was mainly due to her.  Pauline does a wide variety of pro bono work, but concentrates on providing services which help remove barriers to employment for prisoners reentering society after their terms of incarceration have ended, most often through engagement of their criminal records.

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Pauline generally does her pro bono work through Legal Services of Legal Services of New Jersey and Volunteer Lawyers for Justice’s Reentry Legal Services program.

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The Appellate Division of New Jersey’s Superior Court recently issued an important construction law decision examining the effect of New Jersey’s Consumer Fraud Act in cases also involving the breach of a construction contract or negligent construction.

By way of background, coverage under New Jersey’s Consumer Fraud Act was expressly extended to include contractors engaging in home improvements and home repair.  The New Jersey Department of Community Affairs issued regulations requiring specific items in contracts between home improvement contractors and homeowners.  Violation of these technical requirements are “per se” violations of the Consumer Fraud Act, entitling the homeowner to triple damages and reimbursement of their attorneys fees by the contractor.

Under these regulations, the  specific requirements which home improvement contracts must contain include the following.

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New Jersey employment law recognizes the concept of “constructive discharge.”   Constructive discharge occurs when an employee’s working conditions are made so intolerable that the employee has no choice but to quit.  When the actions causing the hostile work environment are undertaken because of discriminatory harassment, this can constitute wrongful termination even though the employee quit, rather than being fired.  However, the burden of proof to prove constructive discharge is on the employee.  The Appellate Division of New Jersey’s Superior Court recently issued an unpublished opinion addressing the question of proof.

Background

The Appellate Division explained that the evidence in the case revealed the following facts.

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The United States Court of Appeals for the Third Circuit recently issued an opinion interpreting the New Jersey Civil Service Act regarding the reemployment rights of laid off civil service employees.  It probably reached the right decision, but its reasoning was far too broad and may have a negative impact on future cases.

In that case, Tundo vs. County of Passaic, two probationary Passaic County Corrections officers with disciplinary problems were laid off as part of a mass layoff for budgetary reasons.  They had not completed their “working test period” (probationary period) yet.  Thereafter, the County obtained funds and sought to rehire some of the laid off employees.  It therefore contacted the New Jersey Civil Service Commission so that the Commission could create a list from which the County could rehire laid off workers, which the Commission did.  There was dispute about whether the list was a “revived” list – or not whether this was a revived “regular reemployment” list or a revived “open competitive” list was left unclear.  The County challenged the placement of the two laid off officers on the list.  The Civil Service Commission rejected the challenge.  The County therefore had the officers apply for the job, but as part of the application process the County required them to sign a release of their right to sue the County.  They refused to sign and the Civil Service Commission removed their names from the list.  The officers then sued under Section 1983 of the Civil Rights Act of 1871, arguing that their due process rights were violated by their removal from the list.  The Third Circuit disagreed, holding that employees do not have a property right to their position on a reemployment list.

The decision was correct in this case because the officers had no right to be on a special reemployment lists.  However, in many cases, other officers do have a legal right to be on employment or remployment list, which would give them a “property interest” triggering due process protections before their governmental employer could remove them.

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The United States Third Circuit Court of Appeals (which hears appeals from the federal district courts in New Jersey, Delaware, Pennsylvania and the United States Virgin Islands) recently had the opportunity to address the state of New Jersey employment law on restrictive covenants in the case of ADP, LLC v. Rafferty.

Background

In the Rafferty case, two ADP employees, Kristi Mork and Nicole Rafferty, agreed to restrictive covenants in exchange for an award of company stock.  Because they were high performing employees, they agreed to restrictions in exchange for the stock award which were more onerous than lower performing  employees were required to agree to.  The restrictions applied whether they quit or were fired.

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Background: The Law Against Discrimination

New Jersey’s Law Against Discrimination (often referred to as the “LAD” or the “NJLAD”) prohibits discrimination and harassment against employees because of a wide variety of immutable characteristics. Among these are protections against discrimination and harassment because of an employee’s age and disability. The Law Against Discrimination’s protections have been described as among the strongest in the country.

The Caraballero Case

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Yes, New Jersey property law allows for the partition of the property, or if a partition is not feasible, then the forced sale of real estate which is owned by more than one person.

Often real estate is owned by several people. This commonly occurs through an inheritance. For example, parents, in their last wills and testaments, bequeath their real property to their three children in equal shares and do not include directives that the property be sold and the proceeds be split equally. During the administration of the estate, the executor transfers title to the property to the three siblings. Often, one of the siblings had been caring for the now deceased parents and is still residing in the property. Yet, the other two siblings want the property to be sold so that they can have their share of the proceeds. This can be a difficult time and can result in significant disputes and turmoil within the family. If the child residing in the property cannot afford to buy out the remaining siblings and cannot (or will not) qualify for a mortgage, the remaining siblings are often at a loss on how to proceed. New Jersey Estate law provides a mechanism to resolve the dispute, the partition action.

If a co-owner of real property refuses to sell the property and divide the proceeds of sale in accordance with each co-owners’ ownership interests, a partition action is the only method available to a person who owns a share of real estate as a tenant in common or joint tenant can separate his or her interest from the other co-owners. If the joint tenants are spouses this remedy is not available to them.) In order to start an action for partition, an action must be filed in the Superior Court of New Jersey, usually filed in the county where the property is located.

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Types of Entities Available Under New Jersey Business Law

New Jersey business law offers different options for the forms which business entities can take.  Each has its advantages and disadvantages.  Traditionally, the choices were corporations, partnerships and sole proprietorships.

Corporations are usually chosen, particularly in the context of small businesses, for the protection they provide.  The corporate form erects a shield, known as the “corporate veil,” which protects owners from the debts and liabilities of their business.  So, for example, if the corporation owes a supplier and doesn’t pay, the supplier can recover from the company but not the owners.  Likewise, if someone is injured by the company’s negligence they can only sue the business, not the owners.

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Tenure is one of the most important protections for teachers in New Jersey employment law.  Both full-time and part-time teachers may receive tenure protection.  However, no New Jersey court has addressed the situation where a part-time tenured teacher’s earnings were reduced when her hours were cut, even though her hourly rate of pay was slightly increased.  However, in the recent case of Zimmerman v. Sussex County Educational Services Commission, the New Jersey Supreme Court addressed this issue head on.

Background: General Principles About Tenure for New Jersey Teachers

One of the bedrock principles of New Jersey public education employment law is tenure protection.  Tenure of teaching staff members employed in the positions of teacher, principal, assistant principal, vice-principal, assistant superintendent, athletic trainer, school nurse and other positions in public schools requiring certification is generally governed by Title 18A of New Jersey Statutes. It was designed to protect competent and qualified teaching staff member from being subject to removal, discipline or “reduction in compensation” for “unfounded, flimsy or political reasons.” Tenure is a statutory right, not contractual.  It cannot be waived, forfeited or bargained away.  When a teacher satisfies the statutory requirements, she receives tenure protection.

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On March 28, 2018, the New Jersey Appellate Division granted an appeal and reversed a trial court employment law decision which had granted summary judgment in favor of the defendant employer the New Jersey Department of Human Services and against the plaintiff employee, dismissing all of his claims. In the case of Jerry Dean Rivera v. State of New Jersey Department of Human Services. The case was argued by Maurice W. McLaughlin, Esq. and Maurice W. McLaughlin, Esq. and Robert Chewning, Esq. wrote the briefs.

The case involved an employee who filed a complaint against his employer for discriminating against him based on his “disabilities,” national origin, and race; retaliating against him for his reports of unfair and discriminatory labor practices; and creating a hostile work environment in violation of New Jersey’s Law Against Discrimination (“LAD”), New Jersey’s Conscientious Employee Protection Act (“CEPA”), and the common law under Pierce v. Ortho Pharmaceutical Corp.

As with most discrimination cases, one of the major issues was determining whether the employee was performing the essential functions of his job. This issue required determining whether regular attendance was an essential function of the employee’s job, and, if so, what level was regained and whether the employer was required to accommodate the employee’s absences. The Appellate Division concluded that the employee should be given the opportunity to establish that he was able to perform all of his essential functions with a reasonable accommodation. Because no discovery was produced by the employer relating to whether it could have accommodated the employee’s absences either through a leave of absence or modified work schedule – combined with the fact that the employer’s overall size and other available positions – the employee was denied a fair day in court.