New Jersey Lawyers Blog

Published on: January 28, 2019

Recent New Jersey Appellate Division Decision Refuses to Compel Arbitration In Age Discrimination Suit

help-164755__340-300x199 The New Jersey Appellate Division recently issued a decision which found an arbitration agreement unenforceable against a plaintiff who was alleging age discrimination under New Jersey’s Law Against Discrimination, N.J.S.A. 10:5-1 (“LAD”). Our attorneys represent both employers and employees in employment law, and the determination of whether an arbitration agreement is enforceable is one of the first issues that must be decided in any case where there is a signed arbitration agreement.

The decision was in the case of Flanzman v. Jenny Craig, Inc. In that case, the employer, Marilyn Flanzman, was an eighty-two year old former weight loss counselor who worked for Jenny Craig, Inc. for twenty-six years. Who filed suit for alleged age discrimination and harassment. The trial court below compelled the case to proceed to arbitration. Marilyn filed an appeal based on the trial court’s order to compel arbitration. On appeal, the Appellate Division was asked to determine whether the arbitration agreement between the parties was invalidated because the parties failed to identify any arbitration forum or process for conducting the arbitration.

The Appellate Division ultimately ruled that the parties lacked a “meeting of the minds” and therefore held that the arbitration agreement was invalid, reversing the trial court’s decision below. The Court came to its decision because neither party could identify the rights that plaintiff was given under the arbitration agreement in exchange for plaintiff waiving her right to a jury trial. In its opinion, the Appellate Division found “selecting an arbitral institution informs the parties, at a minimum, about the institution’s general arbitration rules and procedures. Without knowing this basic information, parties to an arbitration agreement will be unfamiliar with the rights that replaced judicial adjudication. That is the parties will not reach a ‘meeting of the minds.’”

Published on: January 24, 2019

New Jersey’s Appellate Division Invalidates Electronic Arbitration Agreement in Employment Case

by Maurice W. McLaughlin

agreement-300x200 The Appellate Division of New Jersey’s Superior Court recently issued an instructive decision about arbitration agreements in employment law disputes. The case does not invalidate arbitration agreements – they are protected by both federal and New Jersey law – but it does show that the trend is that arbitration agreements are being construed strictly against the employers which drafted them.

The Skuse Case

In the case of Amy Skuse v. Pfizer, Inc., the Appellate Division invalidated an electronic arbitration agreement used by Pfizer for all its employees. The “agreement” was not on paper, but an electronic “training module.” Employees received an email which instructed them to complete the “electronic training.” Even if they didn’t, complete the training module, the employees would have be deemed to have agreed to the arbitration provision by continuing to work for Pfizer for another 60 days. The module allowed them to scroll past the text of the provision, and did not provide for the employees to indicate their agreement to arbitration, only their “acknowledgement” of the policy. The module then thanked the employee for “reviewing” the policy, but not for agreeing to it.

Published on: December 27, 2018

Changes to New Jersey’s Expungement Law

by Pauline M.K. Young

defense-attorney-840062__340-300x237 In December of 2017 New Jersey’s then-Governor Chris Christie signed off on several pieces of legislation to help those with criminal histories turn their lives around and become more productive members of society. For example, Governor Christie signed off on a bill barring employers from inquiring about an applicant’s criminal history during the initial job application process. Around that same time, he also enacted a law to alter the requirements for individuals to be eligible for an expungement of their criminal records. Those changes took effect as of October 1, 2018.

An expungement of criminal records generally has the effect of causing the arrest, conviction and/or any related proceedings to be deemed not to have occurred. In most cases, a person who has had her records expunged may answer “no” to any questions relating to whether an arrest, conviction, or any such proceeding occurred. There are a few exceptions. For instance, in a job application for a position with the court (judicial branch); in an application for another expungement, or to a court in relation to accepting the person into a treatment or other diversion program, the fact of an expungement and the criminal history may still need to be disclosed. However, the records are not made available for any type of background check in other instances (such as for private employment).

The new changes to New Jersey’s expungement laws include several significant alterations in the eligibility requirements for expungements. For instance, an individual used to have to wait 10 years to expunge a felony conviction. That has now been reduced to 6 years. There is also an early pathway for such expungements if the applicant can establish that the expungement is in the public interest, and in consideration of the nature of the offense and the character of the applicant. That early pathway was available previously, and remains in place with a waiting period of only 5 years. Also, the waiting period for expunging juvenile offenses was also reduced from 5 years to 3 years.

Published on: December 20, 2018

New Jersey Contract Law Provides Remedies to Third-Party Beneficiaries

by Maurice W. McLaughlin

rules-1339917__340-300x231 Very often, a person or business will want to confer a benefit on a third party but will not be able to do so itself, for a variety of reasons. So then, to make sure the benefit will be conferred, it will enter into a contract with a person or business which has the ability to confer the benefit. The question, then, is what rights does the third-party beneficiary have?

Let’s say Sam wants to build a deck for his friend Joe’s house, but Sam is an incompetent carpenter. So Sam signs a contract with Acme Building Contractors, Inc., in which Acme agrees to build a deck on Joe’s house, and Sam agrees to pay Acme $5000. Sam pays Acme in full but it never builds the deck, and then Sam dies. Now Acme has $5000 and Joe doesn’t have a deck. Does Joe have any remedies to enforce Sam’s contract with Acme? That all depends on whether Joe can be considered a third-party beneficiary under New Jersey law. The basic answer is yes, if Sam and Acme intended Joe to be a third-party beneficiary.

New Jersey Law Expressly Allows Third-Party Beneficiaries to Enforce Contracts

Published on: December 4, 2018

New Court Rules Streamline New Jersey Business Litigation

by McLaughlin & Nardi, LLC

tax-739107__340-300x200 New Jersey’s Supreme Court adopted new rules which became effective September 1, 2018. These rules amend New Jersey’s Rules of Court to make the litigation of complex business law matters more efficient. This article discusses some of the major changes the new rules have brought about.

Background

In 2000, the Supreme Court revised the discovery procedures in New Jersey’s Court Rules for civil cases. These amendments were adopted because the courts in various counties had developed different discovery procedures. The Supreme Court’s aim was to standardize these rules so that litigants would get the same level playing field in every county throughout the state. However, in adopting three basic case tracks, the Court may have gone too far in limiting judges’ ability to manage complex business law cases. The Supreme Court therefore explored establishing a separate track for complex commercial cases.

Published on: November 28, 2018

Key Documents and Considerations when Purchasing a Franchise in New Jersey

by Jennifer C. Meusel

italian-food-2361054__340-300x200 Before you enter into an agreement to purchase a franchise, it is vital to review and understand the documents you are being required to sign. You will be required to execute the following documents:

1) The Franchise Disclosure Document, previously known as the Uniform Franchise Offering Circular, provides information regarding the franchise’s history, the nature of the business and the products or services it provides, as well as the costs and fees imposed the franchisor, the operational requirements, and historical financial information.

It will, of course, state that past success does not guarantee future success, but it should give you details of the business up to the present date. It must include mandatory disclosures pursuant to the Code of Federal Regulations, Volume 16, Part 436, see The Franchise Rule Compliance Guide.

Published on: November 21, 2018

Recent District of New Jersey Decision Demonstrates Why Federal and New Jersey Employment Law Need to be Amended

by Maurice W. McLaughlin

yes-3029367__340-300x158 The United States District Court for the District of New Jersey recently issued a decision which illustrates some of the weaknesses in both Federal and New Jersey Employment law, particularly Title VII of the Civil Rights Act of 1964 and New Jersey’s Law Against Discrimination. Our attorneys represent both employers and employees in employment law, and this issue is of utmost concern to us.

The decision was in the case of Axakowsky v. NFL Productions, LLC, d/b/a NFL Films. In that case, Nadia Axakowsky sued NFL Productions, LLC, for sexual harassment under Title VII of the Federal Civil Rights Act of 1964 and New Jersey’s Law Against Discrimination. The judge dismissed the case on summary judgment, ruling that Axakowsky was an independent contractor and therefore was not protected by either law.

The judge undertook a detailed analysis under federal case law interpreting Title VII. Culminating with the United States Supreme Court’s decision in Nationwide Mutual Insurance Company v. Darden in 1992, the federal courts have developed a test to determine whether a worker classified as a contractor is in reality an employee entitled to protection under Title VII. The judge went into detail examining all the factors in the relationship, and determined that Axakowsky was in reality a contractor, not an employee, and therefore not entitled to protection under Title VII. Without going into detail, given that Axakowsky worked only one and a half hours per week as a voice-over artist and continued to audition for and accept other work, the analysis was in all likelihood correct.

Published on: November 13, 2018

Proposed Regulations for New Jersey’s Paid Sick Leave Act

by Robert Chewning, Esq.

silhouette-3299358__340-300x274 As previously discussed here, on May 2, 2018, New Jersey’s Governor, Phil Murphy signed into law New Jersey’s Paid Sick Leave Act (the “Act”). The Act took effect on October 29, 2018. The New Jersey Department of Labor and Workforce Development (“NJDOL”) issued proposed regulations to further address the employees’ rights and employers’ obligations under the Act.

Below is a list of several areas where the proposed regulations provided additional guidance to the Act itself:

1. Exempt Employees under the Act.

Published on: November 12, 2018

While Recent U.S. Supreme Court Decision Extends Federal Age Discrimination Protections for Public Employees, New Jersey Law Already Offered Strong Protection to Older Government Employees

by Maurice W. McLaughlin

creative-signstop-age-discrimination-260nw-520754950-300x215 Amazingly, despite the law being clear for many years that age discrimination in employment is illegal, and despite the fact that both research and experience have shown the value of mature workers, age discrimination against older employees continues to be widespread in New Jersey and the country at large. Both the Federal Age Discrimination in Employment Act and New Jersey’s Law Against Discrimination provide strict prohibitions against employers and supervisors discriminating against older employees.

Sometimes, however, the boundaries of these laws are unclear, and guidance from the Courts is required. On November 6, 2018, the United States Supreme Court issued an important decision affecting the rights of state and local government employees under the Age Discrimination in Employment Act.

The Mount Lemmon Fire District Case and the Age Discrimination in Employment Act

Published on: November 8, 2018

Union Members May Opt-Out of Paying Dues

by Pauline M.K. Young

we-566326__340-300x135 On June 27, 2018, the United States Supreme Court issued an important employment law decision in the case of Janus v. American Federal of State, County and Municipal Employees (“AFSCME”). Prior to Janus, the general law was that public sector unions (i.e. unions comprised of governmental employees) could collect fees from employees even when the employee did not want to join the union. The prior law was set in the case of Abood v. Detroit Board of Education,a prior United States Supreme Court case from 1977.

In Abood, the Court held that a public employee could still be required to pay union dues to cover collective bargaining, contract administration, and grievances even if they refused to join the union. The employee could only opt out of paying a portion of fees which were used for political purposes. Much of the reasoning for that holding was that public employees would benefit from union activities and thus should have to pay for such activities; however they did not need to pay for ideological or political support which the employee did not support. Being forced to make donations to political candidates through mandatory union dues was found to be a violation of First Amendment rights.

However, the Janus ruling changed that long-followed law. Janus argued that everything a public-sector union does (including bargaining for wages) is inherently political because it involves the use of taxpayer money, and therefore all mandatory union dues protected by the First Amendment. One concern is that this could potentially have a negative effect upon democratic political support where unions are generally very active in supporting candidates.