New Jersey Lawyers Blog

Published on: December 3, 2020

Appellate Division Decision Demonstrates Enforceability of Arbitration Awards in New Jersey Construction Law

Construction Arbitration

Complex New Jersey construction law cases can be extremely expensive to litigate in court because of the amount of documents involved, the number of witnesses, and the need for experts. Therefore, many construction contracts contain arbitration provisions. The view is that arbitration can save money in the 352099_construction_3-002-300x225 litigation process, but still provide an enforceable dispute resolution process.

However, it would not be accurate to call construction arbitration “cheap” or “inexpensive.” Essentially, arbitration is a private litigation process with limited discovery and appeal rights. By limiting discovery, particularly depositions, a significant source of expense is eliminated, and by limiting appeal rights, arbitration can provide more finality. However, there is still discovery. Documents are generally exchanged before the hearing, so there is still expense, but costs are saved because arbitration rarely involves depositions. Likewise, while experts are not normally deposed, they are still required and must prepare pre-hearing reports about their expected testimony. All of this entails significant expense. In addition, while there are minimal filing fees and the services of courts are generally free, the use of an arbitration forum in construction law disputes entails significant fees, and in addition the parties have to pay the arbitrator for all his or her time.

Published on: November 30, 2020

The Effect of Joint Ownership on a New Jersey Estate’s Inheritance Tax Liability

by Jennifer C. Meusel

Except in the case of spouses, civil union partners and domestic partners, when a New Jersey resident dies owning a jointly held asset, whether it is real estate, stocks, bank accounts, etc., the entire value of the asset will be taxed as if it belonged to the decedent. If the surviving joint tenant can prove that a portion of it actually belongs to the surviving joint tenant and not the decedent, the New Jersey Division of Taxation may grant an exemption from taxation for that portion of the value of the asset. This makes selecting an estate administration and tax planning attorney extremely important.

In order to prove that a portion of the asset actually belonged to the surviving joint tenant, you must be able to show the surviving joint tenant’s financial contribution to the asset or that the surviving joint tenant inherited their portion of the asset from another. Depending upon the relationship between the decedent and the surviving joint tenant, the asset will be subject to inheritance tax at a rate between 11 percent and 16 percent. Class A Beneficiaries (which include spouses, civil union partners, registered domestic partners, parents, grandparents, and children) do not pay any tax on inheritances. Class C Beneficiaries (which include siblings of the decedent and spouses/civil union partners of a child of the decedent) receive $25,000 free from inheritance tax, are taxed at a rate of 11 percent on the next $1,075,000 of inherited assets and the rate increases as the amount inherited increases – up to 16 percent. While bequests to charities are not taxed, inheritances received by all other non-charitable beneficiaries not included in Class A or C are Class D beneficiaries and their inheritances are taxed at a rate of 16 percent for the first $700,000 and 17 percent for the remaining balance of the inheritance.

Many people list another person as a joint owner on an account or an asset because they believe it simplifies the estate administration and probate of the estate. But, it actually can result in a significant tax burden which might not have been due or would have been significantly lower if assets were not jointly held. Moreover, in New Jersey probate and estate administration are not difficult or expensive so it is not usually necessary to attempt to avoid it.

Published on: November 19, 2020

Appellate Division Rules that New Jersey Civil Service Appeals Must be Decided Based on Independent Fact-Finding by Administrative Law Judge

by Maurice W. McLaughlin

The State and Federal Constitutions require that when the government takes action against someone that person must receive due process. For Civil Service employees, that process is the disciplinary appeals process. Therefore, in the case of In re Smith, Irvington Township, Department of Public Safety, the Appellate Division ruled that an administrative law judge and the Civil Service Commission could not rely on fact findings in a related but separate criminal trial. This is an cop important New Jersey employment law decision, because to meet the constitutional requirements of due process and fundamental fairness, the New Jersey Civil Service disciplinary appeals process must give a meaningful hearing to effected civil service employees.

Monique Smith was a career officer with the Irvington Police Department. On the day that she was promoted to captain, her boyfriend broke up with her by email. Captain Smith went to his apartment after the ceremony, and followed him when she saw him leaving in his car. Smith admitted driving over a center island during her drive. Smith was charged with eight traffic violations for this drive, including leaving the scene of an accident and reckless driving. The Department suspended Smith because of the charges. Based on this incident, Smith was also criminally charged with second degree aggravated assault, fourth degree unlawful possession of a weapon, third degree possession of a weapon for unlawful purposes, and fourth degree criminal mischief. The aggravated assault was dismissed by the State, and the criminal mischief charge was amended to a disorderly persons offense (a misdemeanor). A jury found Captain Smith not guilty of all the charges. The trial judge also heard the traffic offenses and found Smith guilty of reckless driving.

Prior to the decision, administrative disciplinary charges were filed against Smith for conduct unbecoming a public employee and five other violations stemming from the same conduct. A departmental disciplinary hearing was held and a six month working day suspension without pay was imposed. Smith appealed to the New Jersey Civil Service Commission. The Commission referred the matter to the Office of Administrative Law (the “OAL”) as a contested case. An administrative law judge (“ALJ”) held a two day hearing. The ALJ issued a recommended decision that the charges be upheld but that the penalty be reduced to a ninety day suspension. The ALJ also recommended that Irvington pay half of Smith’s attorneys fees as she was the prevailing party. However, the ALJ based her findings not on the evidence produced at the hearing, but rather wholly on the evidence and findings of fact from the criminal trial. Despite Smith’s exceptions, the Commission adopted the ALJ’s recommended decision, except that the ninety days would be ninety working days and it rejected the award of attorneys fees.

Published on: November 17, 2020

Facts Still Matter When Trying to Enforce Arbitration Agreement Under New Jersey Employment Law

by Maurice W. McLaughlin

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 the 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.

Published on: November 11, 2020

New Jersey Attorney General Directives on Release of Police Officer Disciplinary Records Will Affect Discovery in Employment Law Cases

by Maurice W. McLaughlin

Background

In the wake of the death of George Floyd, New Jersey Attorney General Gurbir S. Grewal issued two directives amending New Jersey’s Internal Affairs Policy and Procedures (commonly referred to as the “Attorney General Guidelines” or the “IAPP”). The thrust of these directives is to allow for the disclosure of New Jersey police-1714956__340-300x200 law enforcement officer disciplinary records to promote transparency and confidence in police departments and internal affairs disciplinary procedures, as well as to broaden the discovery available to criminal defendants. Those issues are worthy of a dissertation in themselves, but here I want to focus briefly on their effect in New Jersey employment litigation.

Problems Shielding Records in Employment Law Cases

Published on: November 10, 2020

Appellate Division Rules that Special Disciplinary Arbitration by the New Jersey Public Employee Relations Commission is not Available to Police Officers Employed by New Jersey Public Colleges

by Maurice W. McLaughlin

A while ago I wrote a blog detailing the disciplinary process and appeal rights of non-civil service police officers under New Jersey employment law. The Appellate Division of the Superior Court of New Jersey recently issued an opinion clarifying who is and isn’t a law enforcement officer entitled to these rights. police-hoboken-train-station

New Jersey Civil Service confers extensive due process rights on public employees before a government employer may impose discipline, including appeal of discipline to the New Jersey Civil Service Commission. However, non-civil service employees, including police officers, do not have those protections, however.

Therefore, to increase the protections and legal rights for non-civil service police officers, the Legislature adopted several laws, the first of which provides:

Published on: November 3, 2020

United States District Court Rules for Police Officers in New Jersey Employment Law Case

by Maurice W. McLaughlin

Federal versus State Courts for New Jersey Employment Law

Employees who sue their employers for violating New Jersey employment law most often choose to litigate in state court because New Jersey employment law and courts are viewed as more favorable to employees, while employers seek to litigate in Federal court, because federal courts and employment law are seen as courthouse-1223280__340-300x200 more friendly to employers. However, there are exceptions. For instance, public employees sometimes have additional remedies under federal employment law, and employees can litigate their state and federal law claims together in federal court. A good example of this can be seen in a decision in Chesler vs. City of Jersey City by Judge Susan D. Wigenton of the United States District (New Jersey’s federal trial court).

The Chesler Case

Published on: October 29, 2020

Terminated Firefighter Wins Reinstatement in New Jersey Civil Service Appeal

by Maurice W. McLaughlin

A recent appellate decision in the case In the Matter of Christopher D’Amico, City of Plainfield Fire Department demonstrated once again that New Jersey civil service employees have an effect means of redress for when they are wrongfully disciplined.

civil-servcie
The D’Amico Case

Christopher D’Amico passed the New Jersey Civil Service test and was hired to be a firefighter by the City of Plainfield, a civil service jurisdiction. As part of his application, D’Amico was required to prove their residency. D’Amico submitted several documents, including an insurance card. He admitted that he modified the card to list his actual residence in Plainfield. Plainfield’s hiring committee recommended against hiring D’Amico because of the alteration, but the Fire Chief hired him anyway. D’Amico attended the fire academy. A citizen questioned several cadets’ residencies. The concern about D’Amico was determined to be unfounded, but the City reexamined his application. Even though the address was accurate and the change was known by the City when it hired him – and was admitted by D’Amico – the Director of Public Safety ordered the Chief to terminate D’Amico’s employment. When D’Amico and two other cadets reported to the Department for their first day of work they were fired, in D’Amico’s case not because of his residence, but because of the alteration.

Published on: October 28, 2020

Appellate Division Issues New Jersey Employment Law Decision on Sexual Harassment and Notice Requirements

by Maurice W. McLaughlin

The Appellate Division of the Superior Court recently issued an opinion on New Jersey employment law discussing the nature of sexual harassment and when a us-supreme-court-300x200 tort claim notice must be served in the employment context.

The Willis Case

In this case, Willis v. Walker, Fuller and the College of New Jersey, Ratarsha Willis was employed as a senior building maintenance worker by The College of New Jersey (“TCNJ”). Willis and Walker had a consensual affair, during with Walker recorded their tryst on his cellphone in flagrante delicto. Willis did not report to Defendant Walker, but he could assign her work. Walker advised Willis that he showed the video with other employees, including Fuller, because she was teasing Walker that “his penis was little.” Fuller, a supervisor, discussed the video with other TCNJ employees, but took no action to stop the conduct or report it to human resources.

Published on: October 28, 2020

New Jersey Construction Lien Law

by Robert Chewning, Esq.

Hi. My name is Rob Chewning. I am one of the attorneys here at McLaughlin & Nardi, LLC, who practices in the field of construction law. We receive a lot of questions about construction liens.

Constructions liens are a way in which to obtain a security interest in a property in which you might be owed money either as a contractors/subcontractor or supplier for a particular construction project. It can be used as a way to compel payment from the contractor if they owe you money if you are a subcontractor, or if you are the general contractor and the owner owes you money, because that security interest will prevent the owner from selling that property without paying the construction lien that you might be able to obtain.