New Jersey Lawyers Blog

Published on: March 9, 2021

Federal Appeals Court Rules that Psychological Examinations for Applicants for Law Enforcement Officer Positions Cannot Be Used to Discriminate Against Qualified Applicants

A Federal Appeals Court’s recent precedential decision in the case of Gibbs v. City of Pittsburgh may have profound implications for New Jersey civil service appeals from psychological disqualification of law enforcement officer applicants.

Background

Christopher Gibbs applied to be a police officer with the Pittsburgh, Pennsylvania Police Department. He was an honorably discharged Marine and had been accepted for employment with five other law enforcement agencies. Similar to the practice in New Jersey and as required by Pennsylvania state law, after he was found otherwise qualified Pittsburgh offered Gibbs an offer of employment conditioned upon passing an examination to determine whether he was cop psychologically fit for the job. Gibbs had attention deficit hyperactivity disorder (“ADHD”). The examining doctor found him unfit because of his ADHD. The psychologists conducting the examination ignored the fact that Gibbs’s ADHD was under control, that five other departments had found him psychologically fit, that he had unblemished records as a police officer and a Marine, and they never explained how Gibbs’s ADHD would interfere with his ability to perform his duties as a police officer.

Published on: March 9, 2021

How the New Recreational Marijuana Law May Effect New Jersey Employment Law

by Pauline M.K. Young

In February of 2021, Governor Murphy finally signed the long awaited “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” which legalizes recreational, adult (at least 21 years old) use of marijuana (or “cannabis”).

One of the major concerns which has existed since the very beginnings of this Act was how it was going to effect drug testing in the workplace and what job protections might need to be created in relation to employees’ marijuana use. The Act does address job protections. However, while several sections of the Act photo__1894482_mclaughlin_nardi_4712 came into effect immediately, the employment-related provisions are not expected to take effect until the newly-created Cannabis Regulatory Commission establishes regulations providing specific procedures and rules for generally practices in compliance with the Act. That Commission is supposed to do so within 180 days of the passing of the Act, bringing us to approximately August 21, 2021 before marijuana job protections will come into effect.

The Marijuana Act specifically prohibits employers from refusing to hire, firing, or taking some other adverse action against someone specifically because that person uses marijuana recreationally. Indeed, an employer cannot discriminate against an individual in compensation or in any terms, conditions, or privileges of employment based upon marijuana use outside of the workplace. Thus, marijuana use appears to have the same protections as other protected classifications such as race and gender discrimination. Again, we will have to see how the Committee addresses this to see what the specific rules will be.

Published on: March 6, 2021

Bedrock Principles of New Jersey Business Law Examined in New Jersey Appellate Decision

by Maurice W. McLaughlin

In New Jersey, sale of a business is governed by the contract negotiated by the parties. But what if the contract is unclear, or the parties don’t agree on what the terms of an oral contract are? In the case of Lee v. Lee, involving the sale of a restaurant and liquor license in Bergen County, the Appellate Division examined several bedrock principles of New Jersey business law, including oral contracts, the duty of good faith and fair dealing, and how parties are required to deal with each other. The opinion offers good guidance for the behavior of the parties in the sale of a business in New Jersey.

Background

Mikyung Lee and Seoung Ju Bang orally agreed with Jung Lee to sell them a restaurant he owned in Fort Lee, together with its liquor license. The purchase price was $892,000, with a $50,000 initial deposit, and then another $50,000 when the contract was signed, with the remainder to be paid over time. The buyers paid the first deposit, but before a contact was signed, Jung Lee said he needed the second $50,000 deposit. Believing him to be acting in good faith, they gave him the second deposit. He promised to send a written contract with the terms they agreed on, which included having Lee’s company, Plan J. Inc., a part of the transfer because it held the liquor license.

Published on: February 28, 2021

Court Examines Procedures for Appeals of New Jersey Tenure Arbitration Decisions

by Maurice W. McLaughlin

Under New Jersey employment law, a school board must bring tenure charges when it wants to discipline a tenured teacher. The teacher can then appeal the tenure charges to the New Jersey Commissioner of Education. The Department of Education then refers the case to an arbitrator for determination of whether or not the charges should be sustained. New Jersey’s Appellate Division recently examined the procedures for appealing such a tenure arbitration decision in the case of Ragland v. Board of Education of the City of Newark.

Background

Larhonda Ragland was a tenured teacher in the Newark Public School System. She received consecutive summative evaluations of “ineffective” or “partially ineffective” based on poor student achievement and classroom observations. The Board therefore served her with tenure charges of inefficiency. She challenged the Board’s evaluation process, and the Department of Education the referred the charges to an arbitrator.

Published on: February 24, 2021

Appellate Division Issues Troubling New Jersey Construction Law Decision

by Maurice W. McLaughlin

The Appellate Division of the State Superior Court recently issued an opinion on New Jersey construction law in the case of In re Protest Of Contract Award For Project A1150-08, N.J. Executive State House Comprehensive Renovation And Restoration which has troubling NJ_State_House-300x200 implications for contractors. The decision is published, so it is precedent for future cases in which contractors challenge the award of New Jersey construction contracts by state and local governments. In this post I won’t dwell on the details of which contractor was right and which was wrong, but rather I’ll focus on the Appellate Division’s examination of the procedures followed, which is a cautionary tale about the ability of New Jersey construction contractors to meaningfully object to the award of public contracts.

Background

On November 15, 2019, the New Jersey Division of Management and Construction (“DPMC”) awarded a contract for renovation and restoration of the New Jersey State House to Daniel J. Keating Company, the lowest bidder at $199,498,000. Hall Construction Co., Inc., which had bid $205,777,000, was the second lowest bidder.

Published on: February 9, 2021

Appeals Court Issues New Jersey Employment Law Decision About Whistleblower Retaliation, Discrimination and Harassment at New Jersey County College

by Maurice W. McLaughlin

The Appellate Division of the Superior Court of New Jersey examined the evidence necessary for claims of retaliation, discrimination and harassment under New Jersey’s Law Against Discrimination and New Jersey’s whistleblower law, the Conscientious Employee Protection Act. The unpublished opinion also examined what law an employee may bring suit under for whistleblower claims at the same time she is also bringing claims of discrimination and sexual harassment under New Jersey employment law.

Background

Nadine Heller is an associate professor at Middlesex County College (“MCC”). She received tenure in that position and still holds it. She also held the position of Chair of the Visual and Performing Media Arts Department. As Chair she was part of the Department administration.

Published on: February 2, 2021

Appellate Division Allows New Jersey Employment Law Case Against Casino for Whistleblowing, Discrimination and Harassment to Proceed to Jury

by Maurice W. McLaughlin

The Appellate Division recently reversed the dismissal of a casino employee’s lawsuit for whistleblower retaliation, discrimination and sexual harassment, demonstrating again that New Jersey employment law provides some of the country’s strongest employee protections, while also demonstrating the limits of those protections.

Background

In that case, Fox v. DGMB Casino, LLC, Regina Fox was employed as director of security by DGMB Casino, LLC (the corporate name for Resorts Casino Hotel), and had worked there for thirty seven years. She was sixty two. As director of security, she was in charge of staffing requirements and other regulatory mandates of the New Jersey Division of Gaming Enforcement. Any changes in staffing were required to be reported to the Division.

Published on: January 27, 2021

Appellate Division Issues New Jersey Employment Law Decision on Applicability of Rice Notice to Tenured Teachers

by Maurice W. McLaughlin

The Appellate Division recently issued an important New Jersey employment law decision concerning the due process rights of tenured teachers.

Tenured teachers have significantly more protections than untenured teachers.

An untenured teacher is essentially an “employee-at-will” who may be terminated without cause; however, an untenured teacher has the right to require that her board of education discuss her termination in public session. Thus, the board cannot discuss an untenured teacher’s employment without first giving the untenured teacher formal notice of the intention to discuss her employment and the opportunity to require that it be held in public; this notice is referred to as a “Rice Notice” and derives from the Open Public Meetings Act.

Published on: January 21, 2021

New Jersey Supreme Court Explores Good Faith Defense For Employer’s Failure to Pay Overtime Under New Jersey Wage and Hour Law

by Maurice W. McLaughlin

The New Jersey Wage and Hour Law regulates minimum wage and overtime requirements. It is New Jersey’s counterpart to the Federal Fair Labor Standards Act. The Wage and Hour Law and Fair Labor Standards Act are bedrock elements of New Jersey employment law. Under the Wage and Hour Law, New Jersey employers must pay overtime at a rate of one and half times an employee’s regular pay if she works more than forty hours a week. However, if the employer is in imagesCAWQ89PS the trucking industry, the employer is only legally required to pay overtime at the rate of one and half times minimum wage. However, if the employer should have paid the higher rate but paid the lower rate, it can raise the defense that it did so in “good faith” reliance on government orders or regulations.

In the case of Branch v. Cream-O-Land Dairy, Elmer Branch filed a class action lawsuit in the New Jersey Superior Court against his employer, Cream-O-Land Dairy, on behalf of himself and similarly situated truck drivers employees, for non-payment of overtime in violation of the Wage and Hour Law. Cream-O-Land argued that it was not required to pay the higher rate for two reasons. First, it argued that it was a “trucking industry employer,” and that all the employees were paid at least the lower overtime rate. Second, it argued that it met the “good faith” defense. The trial agreed that Cream-O-Land satisfied the good faith defense and dismissed the case on that ground. Branch appealed to the Appellate Division of the Superior Court which reversed, finding that the matters on which Cream-O-Land relied did not satisfy the statutory requirements of the Wage and Hour Law.

Cream-O-Land then appealed to the Supreme Court of New Jersey. Because the trial judge did not address the exemption for trucking industry employers the Supreme Court, like the Appellate Division, examined only whether Cream-O-Land satisfied the good faith defense. It ruled that it did not.

Published on: January 19, 2021

New Jersey Construction Law Opinion Explains Elements of Construction Lien Law and Prompt Payment Act

by Maurice W. McLaughlin

The Appellate Division of the Superior Court recently issued an opinion illustrating several important points regarding construction liens under the New Jersey Construction Lien Law and collection of payment under the New Jersey Prompt Payment Act.

Background

In that case, Prime Time Construction, LLC vs. Vimco, Incorporated, , Prime Time Construction, LLC was the general contractor on three construction projects in construction-machine-3412240__340-300x202 Paterson. The properties were owned by three limited liability companies which were related to Prime Time. Prime Time executed written subcontracts with Build Logistics, Inc. (“BL”) to do the masonry and excavation work on the projects. BL executed a written contract with Vimco to provide materials for two of the projects. Vimco provided the materials directly to BL; it had no contract with Prime Time or the owners. Prime Time paid BL the full amount under the contract for all the work it performed and materials it provided. However, BL abandoned the project and failed to pay Vimco.