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.

Articles Posted in Business Law

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The recent trend has been for courts to find arbitration agreements enforceable under both Federal and New Jersey employment law.  However, prior to enforcing an arbitration agreement, courts must  find that there was actually agreement.  This simple concept was emphasized again by the Appellate Division of Contract-pen-thumb-300x225-80678-300x225the Superior Court of New Jersey in the case of Christina Imperato v. Medwell, LLC.

In that case, Christina Imperato was hired by Medwell, a chiropractic office.  She had a limited education and no prior medical or office experience.  When she was hired, Dr. Ali Mazandarani sat with her and had her sign some pre-employment forms.  They were not explained; Mazandarani sat with her, handed her the forms, and pointed to where she should sign.  She was not given the opportunity to read these or take them home.  The documents included a five page agreement which required that employment disputes be resolved by arbitration rather than court.

Imperato sued Medwell in the Superior Court of New Jersey for sexual harassment in violation of New Jersey’s Law Against Discrimination.  Medwell’s attorneys filed a motion asking the court to dismiss the lawsuit and order the case to arbitration.  The trial judge allowed discovery, including depositions, on the limited question of whether Imperato signed the arbitration agreement, and if so whether she signed it voluntarily and knowingly.  The judge then held a hearing with live testimony on that single issue.

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The New Jersey Supreme Court once again expanded  the enforceability of arbitration agreements under New Jersey employment law.  In its opinion in Skuse vs. Pfizer, Inc., the Court left in place the requirements necessary for agreements to arbitrate employee/employer disputes columns-round-300x201under New Jersey employment law, but in its application let the exceptions swallow the rule.

Pfizer’s Arbitration Agreement

Pfizer adopted an arbitration “agreement” – actually, more of a policy.  It was not a contract signed by an employee and Pfizer.  Rather, the employee was deemed to have agreed to arbitrate employment disputes if she continued working for Pfizer for sixty days after the policy’s effective date.  Employees were notified by email (to over 28,000 employees) about the policy and given a deadline to “acknowledge” having received it.  Whether the employees did or did not acknowledge receipt, they would be deemed to have “agreed” to the policy by their continued employment.  There was a training module with four slides which purported to explain the policy; one of the slides gave the employees the option to print a copy, but they were not given a copy by Pfizer; another thanked the employee for taking the training.  In the FAQ section of the training module employees were told that if they did not agree they would be fired.

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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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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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Contractors’ Problems With Getting Paid

Our construction attorneys represent New Jersey contractors and subcontractors in construction litigation, arbitration and mediation.  One of the things we see over and over again, is that one of construction companies’ biggest worries is that they will perform all the work they pulaski-skyway-300x201agreed to and then not get paid, despite the fact that they met all the project’s specifications and did a great job.  It is a well-founded worry.  Companies or people who don’t want to pay devise many different schemes, sometimes claiming defects with the work, delay damages, failure to do proper paperwork, the excuses are as varied as is human imagination.  To be clear, sometimes these claims are legitimate, but sometimes they are not, and good contractors need to get paid to do the work and to stay in business.

Fortunately, however, New Jersey construction law provides remedies for these schemes.  Recently, the Appellate Division of the Superior Court of New Jersey issued a decision on these construction law remedies in the case of Petric & Associates, Inc. v. CCA Civil, Inc.  Although the decision was unpublished, it is important because it explores many of these remedies and lays out a roadmap for subcontractors’ remedies against unscrupulous contractors which don’t want to pay them, particularly some of the trickier issues under New Jersey’s Prompt Payment Act.

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As a result of the Coronavirus (“COVID-19”) pandemic, the federal government has passed several pieces of legislation in an attempt to provide relief to struggling businesses.  One of these Acts is the Coronavirus Aid, Relief, and Economic Security Act (also known as the “CARES Act”).  However, since this legislation was signed empty-officeinto law, the CARES Act has been subject to various interpretations, pitfalls, and continuously-evolving government guidance.

The CARES Act created and allocated approximately $350 billion to the Paycheck Protection Program (“PPP).  However, those funds were almost immediately depleted by millions of businesses seeking assistance and the government thereafter allocated an additional $175 billion to the PPP.

The PPP provides loans to struggling businesses in the amount of two and a half times the small business’s average monthly payroll costs.  Thus, if the average monthly payroll is $50,000, the business might be eligible for up to $125,000 in PPP loans.  While the PPP is considered a loan program, the funds may be largely (or entirely) forgiven as long as the business uses the funds for approved expenses which are appropriately documented. However, like most aspects of the CARES Act and the PPP, there has been a great deal of uncertainty surrounding the specific requirements for loan forgiveness.  The SBA (the United States Small Business Administration) alone has posted supplemental rules and guidance on the matter more than ten times in two months.  Thus, as a result, the Paycheck Protection Program Flexibility Act was passed on June 5, 2020 amending the CARES Act. This new law has important ramifications for New Jersey small businesses.

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Hi, I’m Rob Chewning. I work with the firm of McLaughlin & Nardi, LLC.  At the firm we practice several different types of law, including bankruptcy law.  I am here today to talk to you about The Small Business Reorganization Act and Subchapter 5 bankruptcies.

As a result of COVID-19, millions of small businesses have been forced to shut down and cease business operations indefinitely with no end in sight.  Some of these small businesses have tried to hold on in the hope of getting federal stimulus money that can carry them through this tough time.  However, there are several million other businesses which will not be eligible or will not be able to get their hands on this federal stimulus money which is causing them to consider the options that they have.

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As a result of the Novel Coronavirus (“COVID-19”), the federal government has passed significant legislation in an attempt to provide relief to businesses small-business-300x215struggling with economic hardships as a result of widespread closures and stay-at-home orders.  One major part of these governmental actions includes the passage of the Coronavirus Aid, Relief, and Economic Security Act (also known as the “CARES Act”) on April 2, 2020.

The CARES Act provides for approximately $2 trillion in aid through expanded unemployment assistance, individual relief checks, tax credits, loans, and grants to businesses which were closed or significantly effected by COVID-19, and funding to hospitals and health care facilities. Of this, approximately $350 billion was allocated to the CARES Act’s Paycheck Protection Program (“PPP).   When that money was almost immediately sought by the millions of businesses seeking assistance, an additional $175 billion was additionally allocated.

The PPP limited its funding to each company to two and a half times the company’s average monthly payroll costs.  While the PPP is considered a loan program, the funds may largely (or entirely) be forgiven as long as the company uses the funds for approved expenses. The details of exactly which expenses would be considered approved and how these funds could be used has been the subject of much uncertainty over the past several weeks.  Indeed, the SBA (Small Business Administration) has posted additional rules and guidance on the matter more than 10 times in two months.

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As a result of the Coronavirus (COV-19), millions of small businesses have been forced to close their business operations entirely with seemingly no end in sight. small-business-300x200 Naturally, this has led to a spike in bankruptcy filings.  However, many small businesses have held out hope for federal stimulus aid before deciding on whether bankruptcy is the right option for them.

The enactment of a new bankruptcy law, the Small Business Reorganization Act, may provide small businesses suffering from COV-19 related financial issues with relief.  The purpose of the act was to make the benefits that larger business entities may take advantage of when filing for a Chapter 11 reorganization bankruptcy easier to access for smaller business entities seeking relief from debt without going out of business.  The Act simplifies the process by allowing small businesses to file a Subchapter 5 bankruptcy reorganization.

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national-gallery-of-art-1380105-m-300x248Since the COV-19 outbreak began, more than 22 million Americans have filed for unemployment.  The increase in unemployment filings have been the result of businesses of all sizes being forced to shut down entirely or significantly limit their operations.  As a result, many people, both employers and employees, are seeing less income or no income at all while still being expected to pay their monthly payments such as rent, mortgage, car loan, credit card bills, and insurance.  These financial obligations are especially devastating for people and businesses that were already having trouble making those monthly payments prior to the COV-19 outbreak.

If a person and/or business is experiencing financial trouble, has significant debt, and/or is subject to collection actions such as a foreclosure or a collections lawsuit, bankruptcy may be a potential remedy.  One of the major benefits of filing for bankruptcy is the immediate automatic stay of collection actions and lawsuits.

The type of bankruptcy that may be appropriate for an individual and/or business depends on several factors.  For more information on the different types of bankruptcies, check out our posts on Chapter 7, Chapter 11, and Chapter 13 bankruptcies.

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