New Jersey Lawyers Blog

Published on: August 1, 2017

New Jersey Civil Rights Act Protects Local Government Employees From Politically Motivated Acts

megaphone-1480342__340-300x200 The New Jersey Civil Rights Act, the state counterpart to the federal law known as “Section 1983,” is a powerful tool for government employees to protect themselves when their public employers violate their civil rights

After the Civil War, Congress passed a law known as “Section 1983.” Section 1983 was part of the Ku Klux Klan Act, also known as the Civil Rights Act of 1871. The Act was passed at the urging of President Ulysses S. Grant as part of a series of measures during Reconstruction to protect the rights (and safety) of freed slaves in the South, who were facing increased violence and intimidation from the Klan and others. Indeed, much of this was orchestrated with local government. Section 1983 therefore made it illegal for someone to act “under color of law or authority” to deprive another person of their rights under the United States Constitution or federal law. Essentially, it gave people a remedy for violation of their rights. It allowed for civil suits, injunctions, punitive damages and the recovery of attorneys fees as well. Over the years, Section 1983 has come to protect the rights of public employees from the denial of rights by local government employers.

However, New Jersey had no counterpart for a remedy for people deprived of their rights under the New Jersey Constitution or New Jersey law, which was not protected under Section 1983. To resolve this gap, in 2004, New Jersey enacted the New Jersey Civil Rights Act to provide a remedy for violations of a person’s civil rights protected by New Jersey laws or the New Jersey Constitution. Like its federal counterpart Section 1983, the New Jersey Civil Rights Act protects public employees from deprivation of their civil rights by their local employers. As currently interpreted by the courts, the New Jersey Civil Rights Act allows for suits only against local governments such as towns, cities, boards of education, counties and local government authorities (such as housing authorities, parking authorities, etc.).

Published on: June 23, 2017

New Jersey’s Statue of Frauds Limits Oral Contracts

by Maurice W. McLaughlin

handshake-2056023__340-300x200 As a general rule, oral contacts in New Jersey are enforceable – not that they are recommended; indeed. Our attorneys, we always recommend that contracts be in writing because they are easier to prove and leave less room for misunderstandings. However, if you can prove the terms of an oral contract New Jersey courts will generally enforce it.

A big exception applies to this, however, in the Statute of Frauds. Under the New Jersey Statute of Frauds, courts will refuse to enforce certain oral contracts even if you can prove them. This law is based on the premise that oral contracts are inherently less reliable, and writings in certain situations are necessary to prevent perjury or unfounded claims. The Statute of Frauds has its roots in the old Statute for the Prevention of Frauds and Perjuries which was adopted by the English Parliament in 1677, and was thus the law in England’s American Colonies when they became independent. The main elements of the Statute of Frauds are found in one section of New Jersey Statutes, but other elements are spread in different sections of Chapter 25 of Title 2A of New Jersey Statutes.

The main types of contracts which the Statute of Frauds requires to be in writing are:

Published on: June 21, 2017

Appeals from Psychological Disqualifications of Applicants for Law Enforcement or Firefighter Positions

by Maurice W. McLaughlin

wheelchair-1595794__340-300x200 Under New Jersey’s Civil Service System, hiring and advancement are required to be based on merit. In a civil service jurisdiction, taking the civil service test is just the first step in the process of obtaining a position as a New Jersey law enforcement officer or firefighter. After this there will be a background investigation, interview, and physical and psychological examinations. Under New Jersey civil service regulations a candidate may be rejected if she “Is physically or psychologically unfit to perform effectively the duties of the title.” (An exception applies when the “an injury incurred in the armed forces… unless the Commissioner [of Civil Service] considers the condition incapacitating.”)

Many times, and for a variety of reasons, perfectly fit candidates fail the psychological examination, which is usually conducted by a mental health professional selected by the agency to which the candidate is applying. However, the regulations and New Jersey’s Civil Service Act (Title 11A of New Jersey Statutes) provides for an appeal to the New Jersey Civil Service Commission.

To remove an applicant, the department or agency (known as the “appointing authority” or “employer” in the regulations) must request that the Commission remove an otherwise eligible applicant’s name from an eligible list because of her alleged psychological unfitness which purportedly renders her unable to effectively performing the duties of the title. The request must include “a copy of the certification and a report and recommendation supporting the removal request, prepared and signed by a physician, psychologist or psychiatrist who is licensed in New Jersey or qualified and employed by the appointing authority in the Clinical Psychologist title series.” It must include “a finding that the eligible is not qualified due to medical or psychological reasons for the title.” Finally, it must include “All medical, psychiatric, and psychological examinations performed at the appointing authority’s request shall be at the appointing authority’s expense.” The request may be denied for failure to provide the required documentary support.

Published on: June 19, 2017

Contractual and Quasi-Contractual Remedies Under New Jersey Business Law

by Maurice W. McLaughlin

signature-962364__340-300x225 Representing parties negotiating contracts and litigating over breach of contracts are some of our attorneys’ main practice areas. New Jersey contract law recognizes both contracts and “quasi-contracts.” This post examines what these are and the differences between them.

Contracts

New Jersey contract law defines a contract as a voluntary agreement for mutual obligations based on a common understanding resulting from “offer and acceptance.” New Jersey’s Model Civil Jury Charges have laid out the required elements to create a binding contract: (1) a meeting of the minds between the parties to the contract, (2) offer and acceptance, (3) valid consideration, ie., mutuality of obligations, and (4) certainty — clear and definite terms.

Published on: June 3, 2017

The Relationship Between the New Jersey Construction Lien and Federal Bankruptcy Law

by Robert Chewning, Esq.

worried-30148__340-217x300 In the case of In re Linear Electric Company, Inc., the Third Circuit was presented with whether construction liens filed by a supplier under New Jersey law were valid and enforceable against a contractor who filed a petition for Chapter 11 bankruptcy protection prior to when the construction liens were filed.

New Jersey’s Construction Lien Law, N.J.S.A. §2A:44A, et seq., provides contractors, subcontractors, and suppliers with the right of filing a lien for work, services, or materials provided pursuant to a written contract. These protections are limited based on several factors including but not limited to whether the person or entity filing the construction lien is defined as a “claimant” under New Jersey’s Construction Lien law, what the unpaid portions of the contract price is, and compliance with strict time restrictions for filing the lien itself and a subsequent lawsuit based on the lien.

Under the Federal Bankruptcy Code, a debtor who files for bankruptcy is afforded the relief of an automatic stay that prevents most collection actions from continuing including acts to create, perfect, or enforce liens against property. The protections of an automatic stay are broad and expansive but do include several expectations and limitations for certain debts.

Published on: June 1, 2017

New Jersey Discrimination and Retaliation Claims Not Preempted by Federal Labor Management Relations Act

by Maurice W. McLaughlin

strategy-1710763__340-300x160 One of the most difficult issues for New Jersey employment attorneys is when federal law preempts New Jersey employment law. One of the most thorny areas is the intersection of the Federal Labor Management Relations Act, which governs the interpretation and application of collective bargaining agreements (union contracts) in the private sector. Fortunately, New Jersey’s Appellate Division has recently issued an important opinion clarifying this complex area in the context of disability discrimination and retaliation by an employer against an employee for filing a workers compensation claim.

Background

Brian Hejda was a truck driver for Bell Container Corp., and a member of Teamsters Local Union 813. He suffered a workplace knee injury. He had various restrictions on what he could do at work, and he was medically limited to light duty. He filed a workers compensation claim; Bell denied that he sustained a disabling injury. Eventually Hejda was asymptomatic and able to return to full duty, although his doctors advised that he would eventually need arthroscopic surgery to repair the damage. Hejda reported to work for a week but was not given much to do. When he returned the following week, he was told to leave.

Published on: May 31, 2017

Confidentiality Privileges in Internal Employer Investigations

by Pauline M.K. Young

puzzle-693873__340-300x228 An attorney-client relationship involves the reasonable reliance by an individual (the client) on the professional knowledge and/or skills of an attorney who is aware of and accepts responsibility for that reliance. While a written agreement is not required for this relationship to exist, there must be some mutual understanding, consensus, and/or act manifesting the acknowledgement of the relationship.

One of an attorney’s obligations to a client the duty to maintain the confidentiality of communications with the client. The New Jersey Supreme Court has said that:

Such an obligation is necessary for several reasons. Persons who seek legal advice must be assured that the secrets and confidences they repose with their attorney will remain with their attorney, and their attorney alone. Preserving the sanctity of confidentiality of a client’s disclosures to his attorney will encourage an open atmosphere of trust, thus enabling the attorney to do the best job he can for the client.

Published on: May 22, 2017

Discharge Federal Estate Tax Liens Prior to Sale of Property

by Jennifer C. Meusel

key-2114044__340-300x169 Generally, before the estate of a decease person can sell real estate, the individual(s) named as executor in the will must probate and be formally appointed as executor. If there is no will, then the closest heir at law must apply to the surrogate’s court to be appointed as administrator of the estate. An administrator would follow the same steps as an executor in order to sell real estate.

Estates with a value in excess of $5,450,000 are subject to federal estate tax pursuant to IRC Section 6324. IRS estate tax liens automatically attach to real property (“real estate”) which was owned by a decedent on her date of death. In order to have this tax lien discharged, the seller must follow these steps in order to close on the sale of the property and have the federal estate tax lien discharged:

The executor of the estate must complete and file IRS Form 4422 and provide the required supporting documents. In order to compete this form you must know the value of all estate assets and expenses. And you must have the required supporting documentation including: the last will and testament, the contract for sale of the real estate, the closing statement or proposed closing statement for the sale (which shows all payments, credits, expenses and offsets), the federal estate tax form 706 and documentation reflecting the value of all the estate’s assets. With Form 4422 the executor must also submit for 8821, a tax information authorization form. Additionally, IRS Form 4422 must be filed at least 45 days prior to the closing of the sale of the real estate.

Published on: May 22, 2017

The Winters Problem: Public Employees’ Catch 22

by Maurice W. McLaughlin

electrician-1080561__340-300x200 Our employment lawyers represent New Jersey public employees at the state and local level. One problem that we have run into representing public employees is a recent opinion by the New Jersey Supreme Court which severely limits public employees’ options when their government employers have taken wrongful actions against them.

Avenues for Redress

New Jersey employment law gives government employees a variety of avenues for redress when their employers have taken action which violates their rights.

Published on: May 17, 2017

New Jersey Court Imposes Restrictions on Police Officers Taking Leave to Hold Elected Office

by Maurice W. McLaughlin

police-car-1889057__340-300x300 Our employment attorneys handle New Jersey civil service appeals and litigation. The Appellate Division of New Jersey Superior Court recently issued a decision on “dual officeholding” which affects the rights of New Jersey Civil Servants.

Gary DeMarzo was hired as a police officer by Wildwood in 1998. In 2007 he was elected a city commissioner. Under New Jersey’s Walsh Act, a “commission type” government combines the functions normally exercised separately by a mayor and council into a single board of commissioners, which exercises both legislative and executive and legislative power for the municipality. The Wildwood Board of Commissioners thus exercised executive power over the Wildwood Police Department. DeMarzo applied for unpaid leave from the Police Department in accordance with the New Jersey Civil Service Act.

The City of Wildwood filed an action in the Superior Court of New Jersey requesting a declaratory judgment that the positions of commissioner and police officer were incompatible. The trial court judge found the two positions were, in fact, incompatible. However, rather than ordering DeMarzo to give up one of the positions, it crafted a set of restrictions on DeMarzo’s function as a commissioner. The City appealed, arguing that the trial judge erred in this ruling.