New Jersey Lawyers Blog

Published on: April 9, 2018

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

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 The Appellate Division of New Jersey’s Superior Court recently issued an unpublished opinion helping to clarify this issue.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.

Published on: February 5, 2018

When Does the Statute of Limitations on Harassment Begin: The Continuing Violation Doctrine

by Maurice W. McLaughlin

By typography-2858715__340-300x150 enacting the Law Against Discrimination, New Jersey has provided its workers with some of the strongest anti-discrimination laws in the United States. New Jersey’s Law Against Discrimination protects against employment discrimination, including harassment, because of these protected categories

race
creed

Published on: February 2, 2018

The United States Supreme Court Issues Major Decision on Tolling of Statute of Limitations in Employment Cases Under Supplemental Jurisdiction

by Maurice W. McLaughlin

partnership-2750197__340-300x200 The United States Supreme Court issued a major decision on tolling the statute of limitations on state law claims while the case is in federal court which has significant impact on New Jersey employment litigation. In the case of Artis v. District of Columbia, the Supreme Court answered a major procedural question regarding the interplay of federal and state claims being heard together in federal district court and state statutes of limitations. While the case involved an employment case in District of Columbia, it would be equally applicable to cases brought under New Jersey employment law.

Background

Stephanie Artis worked as a health inspector for the city government of the District of Columbia. She was fired. Thereafter, she filed suit in the United States District Court for the District of Columbia. She alleged a federal claim under Title VII of the Civil Rights Act of 1964 (known as “Title VII”). She also sued under District of Columbia law for whistleblower retaliations, false claims and gender discrimination.

Published on: January 31, 2018

New Jersey Liquor License Transfer Applications

by Jennifer C. Meusel

bar-2832543__340-259x300 When you purchase a liquor license in New Jersey, as a Buyer you must be approved by the State of New Jersey Alcoholic Beverage Commission and the Municipality where the business operates. This process is detailed and time consuming. it must be started as soon as possible by the Buyer. You will need to obtain a Person to Person Transfer of the liquor license. Unless and until the municipality issues a resolution approving of the transfer of the liquor license, the current license holder must operate the business.

In order to be approved, the applicant must meet the following requirements:

a) 18 years of age or older;