New Jersey Lawyers Blog

Published on: May 8, 2018

Governor Murphy Signs Diane B. Allen Equal Pay Act Into Law

dollar-1362243__340-300x200 Fulfilling one of his campaign promises, Governor Phil Murphy signed the Diane B. Allen Equal Pay Act on April 24, 2018. The Act amends New Jersey’s Law Against Discrimination. The main purpose of the Equal Pay Act is to close the pay gap between men and women. Governor Murphy explained, “From our first day in Trenton, we acted swiftly to support equal pay for women in the workplace and begin closing the gender wage gap. Today, we are sending a beacon far and wide to women across the Garden State and in America – the only factors to determine a worker’s wages should be intelligence, experience and capacity to do the job. Pay equity will help us in building a stronger, fairer New Jersey.”

While its main purpose was to protect women and close the gender pay gap, the Act protects against discrimination in pay because of an employee’s immutable characteristic, such as race, religion, sexual orientation, age, etc. The bill strengthens the Law Against Discrimination in several ways, and makes it one of the strongest anti-discrimination laws in the United States.

Pay Disparities Illegal. The Act makes it illegal to pay members of a “protected class” at compensation rates, including both pay and benefits, less than other employees not in a protected class. Protected classes include not just gender, but also race, religion, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, gender identity, gender expression, disability, atypical hereditary cellular or blood trait, liability for military service, nationality, refusal to submit to a genetic test, or refusal make available the results of a genetic test to an employer.

Published on: May 1, 2018

Forming a Tax Exempt, Non-Profit Organization in New Jersey

by Maurice W. McLaughlin

volunteer-1326758__340-300x236 Many people have the impulse to help their fellow man and to serve worthy causes. One of the most important tools to achieve this end is the non-profit, tax exempt corporation. Forming this type of entity allows funds to be raised without being taxed, permits contributors to deduct their contributions from their income tax, and protects the people working for the organization from personal liability. However, the process can be complex. Our attorneys help people and charitable organizations navigate this complex area. The basic steps are outlined below.

Incorporation. The first step is to incorporate. The primary protection offered by the corporate form is that it protects the people who run and work for the non-profit from personal liability. The organization is incorporated with State of New Jersey, and it must be designated as a non-profit. A Federal Employer Identification Number (EIN) must be obtained as well.

Trustees and Bylaws. To have a non-profit corporation, there must be a board with at least three trustees, each of whom must be at least 18 years old. The non-profit must also have bylaws, which are essentially the organization’s “constitution” — the bylaws set the entity’s purpose, the responsibilities and powers of the people who run the non-profit, and how it will be run.

Published on: April 13, 2018

United States Supreme Court Issues Important Wage and Hour Law Decision

by Maurice W. McLaughlin

Wage and hour claims dealing with overtime requirements are among the most contentious in employment law litigation. The United States Supreme Court recently issued a decision exempting one narrow class of employees (“service advisors” at automobile dealerships) from coverage. While the specific effect of the ruling is limited, the reasoning behind it may signal a shift in the way the Supreme Court interprets the exemptions from overtime requirements in federal employment law.

The Federal Fair Labor Standards Act governs wage and hour issues for most employees in the United States. Generally speaking, unless an employee is an “exempt employee” she must receive minimum wage for all hours worked, and overtime pay at the rate of one and a half times her normal pay rate (known as “time and a half”) when she works more than forty hours in a week. Broad categories of employees are exempt, however. The major categories of exemptions are professional, executive and administrative employees. Many other smaller or sub-categories of employees are also exempt.

New Jersey’s Wage and Hour Law provides similar coverage for New Jersey employees, who receive protection under both state and federal law. Both laws also prohibit retaliation against employees who file complaints about violations (although there are technical requirements about what constitutes a “complaint”), and both require the employer to pay the employee’s attorneys fees if she prevails in a lawsuit. The main difference is that the Fair Labor Standards Act provides for double damages if the violation is “willful” – this means that if the employer willfully underpaid the employee by $1000, it must pay her $2000 in damages plus reimbursing her for her attorneys fees. The New Jersey Wage and Hour Law, on the other hand, does not provide for double damages.

Published on: April 9, 2018

Appellate Division Rules on New Jersey Employment Discrimination Law in the Age of Telecommuting

by Maurice W. McLaughlin

In 1945, New Jersey’s Legislature enacted the Law Against Discrimination. It has been repeatedly revised to increase its inclusion and scope. However, its goal remains the same today as it was in 1945: “nothing less than the eradication of the cancer of discrimination in the workplace.” The Law Against Discrimination declares that a workplace free from discrimination is a civil right in New Jersey.

The main section of New Jersey’s Law Against Discrimination dealing with employment bars employers from firing, refusing to hire, or discriminating against employees in their pay or other terms, conditions or privileges of their employment because of their “race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer.”

When the Legislature enacted the Law Against Discrimination, it listed its purpose as protecting “inhabitants” of New Jersey. However, every other section of this long Law prohibits discrimination against “any individual” or “any person.” In 1945, this discrepancy was not an issue. However, in today’s cyber-world, a conflict inevitably arose between the term “inhabitants,” and “any individual” or “any person” in the context of telecommuting. The Appellate Division of New Jersey’s Superior Court recently issued an unpublished opinion helping to clarify this issue.

Published on: March 16, 2018

The Reach and Limits of the Parole Evidence Rule in New Jersey Contract Law

by Maurice W. McLaughlin

laptop-3175111__340-300x200 New Jersey Courts have followed the Parole Evidence Rule since at least 1882. The Parole Evidence Rule holds that outside (or “extrinsic”) evidence is not allowed to alter the terms of a contract – in other words, the Parole Evidence holds that, the meaning of a contract is contained within its own four walls. Unlike most rules with the word “evidence” in it, the Parole Evidence Rule is not actually part of the Rules of Evidence. In fact, it is not really an evidence rule at all. Rather, it is a substantive rule of law which holds that once the parties sign a contract, their prior negotiations are irrelevant because they have selected the terms of their agreement.

The first requirement for the Parole Evidence Rule to be invoked is that there must be a written contract – the Parole Evidence Rule only applies to agreements which have placed into a written contact. Second, the written contract must be intended as the parties’ final agreement. While this may seem self-evident, in the early stages of commercial transactions parties often use “letters of intent” which are not intended as the final agreement, but only as the broad outlines of how the parties foresee their eventual agreements turning out. Finally, the contract must be a “fully integrated” agreement. This means that the contract must cover all parts of the transactions, not just some elements; the Parole Evidence Rule does not bar extrinsic evidence in the interpretation of “partially integrated” contracts.

Limitations on Application of the Parole Evidence Rule

Published on: March 13, 2018

McLaughlin & Nardi, LLC Congratulates its Newest Member, Pauline Young

by Maurice W. McLaughlin

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McLaughlin & Nardi, LLC, welcomes aboard the firm’s newest member, Pauline Young. Pauline M.K. Young joined us when she was a student at New York Law School. For some reason, after getting to know us she decided to stay. We could not be happier. Besides being an excellent attorney, Pauline is, as Reggie Jackson said, the “straw that stirs the drink.” She is detail oriented, but excels at working with our staff, attorneys, clients, adversaries, judges and juries, and keeping us on an even keel in the most stressful of environments.

Pauline’s practice includes employment law, commercial law, insurance and professional malpractice, tax litigation, business and real estate transactions, solid waste law (including both litigation, transactions and A-901 applications), among a diverse set of cases she has handled. To say this, however, is give a dry listing of her experience and ignore where her talents lie. Pauline can be handed the most complex set of problems, figure them out, determine a winning strategy, and pursue it to a successful conclusion.

For example, in one recent case Pauline stepped into a complex construction defect/commercial landlord-tenant case as it was about to go to trial. She took literally tens of thousands of pages of documents, organized them – but more importantly, in an extremely short time digested and understood them – and put together a winning trial strategy in a case where each side introduced more than five hundred exhibits over two months in a hard fought trial.

Published on: March 6, 2018

New Jersey Contract Law Issues: The Economic Loss Doctrine, Fraud in the Breach Versus Fraud in the Inducement, and the Duty of Good Faith and Fair Dealing

by Maurice W. McLaughlin

block-chain-2853046__340-300x134 Our attorneys represent people and businesses in all aspects of contract law, including contract negotiations, drafting, review and contract litigation. One of the more complex areas of contract law if the interplay of contract and tort law when fraud and contracts intersect. While this issue is complex, there are several basic rules and principles.

The Economic Loss Doctrine – Fraud in the Performance of a Contract

New Jersey contract law adheres, if somewhat loosely, to the “economic loss doctrine.” What this rule says is that after two parties enter into a contract governing their relationship, their remedies for economic loss are limited to breach of contract. They cannot sue for torts (civil wrongs) such as fraud. Thus, as a hypothetical example, after a contract is signed for ABC Company to pay XYZ, LLC $10,000 for the manufacture and delivery of ten motors, if XYZ takes the money and then keeps telling ABC that the motors are coming “soon” knowing full well it is never going to deliver, ABC is limited to suing XYZ for breach of contract when the motors aren’t delivered. ABC cannot sue for fraud in the performance of the contract. This is the heart of the economic loss doctrine. The practical difference is that punitive damages are available if a party is found guilty of fraud, but punitive damages are not available for breach of contract.

Published on: February 21, 2018

Tenure Rights of Part-Time New Jersey Teachers

by Maurice W. McLaughlin

books-2826380__340-300x200 One of the areas which counterintuitively generates among the most questions in New Jersey employment law is teachers’ tenure. Although teacher tenure dates back over a century, tenure is still an area of the law which generates much controversy and litigation. The Appellate Division of New Jersey’s Superior Court recently issued a decision in one such area of contention in the case of Zimmerman v. Sussex County Educational Services Commission.

In that case, Beryl Zimmerman and Judy Comment were tenured, part-time teachers for the Sussex County Educational Services Commission. They provided remedial instruction to eligible students. For reasons that were unclear, the Commission reduced their hours, but not their rate of pay. During the 2013-2014 school year, Comment worked approximately 1117 hours, and earned a gross salary of $36,838.74. The following year, however, the Commission reduced Comment’s teaching to only 305 hours, a reduction of 784 hours and $26,507.61. Zimmerman’s hours were reduced from 954 during the 2013-2014 school year to 658 the next, reducing her gross earnings from $27,668.81 to $19,603.42, a reduction of $8,065.39.

Zimmerman and Comment appealed to the New Jersey Commissioner of Education claiming that the reduction violated their tenure rights. The Commission argued that it did not violate the teachers’ tenure because their hourly rate not reduced (and in fact they received an annual incremental raise in their hourly rate), and their individual contracts and collective negotiations agreement contained no guaranteed minimum number of hours they would work. After proceedings before an administrative law judge, the Commissioner of Education agreed with the Commission and rejected Zimmerman’s and Comment’s appeal. The Commission of Education found that because the hourly rate was not reduced, and because the union and individual contracts did not guarantee Zimmerman and Comment a certain number of hours, the reduction in their hours did not violate their tenure protections. Zimmerman and Comment then appealed the Commissioner’s decision to the Appellate Division, which reversed the Commissioner’s decision.

Published on: February 13, 2018

Restrictive Covenants in Employment Agreements and Business Law

by Maurice W. McLaughlin

What is a Restrictive Covenant?

A restrictive covenant is a contractual agreement in which one party receives something of value in exchange for a promise not to engage in a particular type of behavior. Restrictive covenants can bind people or businesses.

What Types of Restrictive Covenants Are There?

Published on: February 6, 2018

Mandatory Pay for Breaks Under the Fair Labor Standard Act

by Pauline M.K. Young

The Fair Labor Standards Act (“FLSA”) is a federal statute enacted in 1938 with the goal of setting national minimum requirements for employee compensation. It covers areas such as minimum wage and overtime, among other things.

On February 9, 2017, the Third Circuit Court of Appeals was the first United States Federal Circuit Court to address an area of the FLSA which is invoked relatively rarely in civil lawsuits involving compensation disputes. In a case captioned: Secretary, United States Department of Labor v. American Future Systems, Inc., the Department of Labor (“DOL”) sued on behalf of the employees of American Future Systems, Inc., claiming that the employer was violating the FLSA by not paying employees for time that they were logged off of their computers over 90 seconds.

The employer did not deny that it was not paying employees for “breaks” in excess of 90 seconds. The dispute was whether that non-payment violated the FLSA. Two different sections of the FLSA were evaluated.