Business Law

Published on: December 28, 2023

Claims of Negligence by an Engineer in New Jersey Construction Litigation Must be Supported by Expert Opinion in an Affidavit of Merit

New Jersey construction litigation often involves claims against contractors for improper construction or delay. Contractors, in turn, often argue as a defense, counterclaim or cross-claim that any delay or improper construction was the fault of the licensed professional on 6-300x225 the project, such as the engineer or the architect. Owners may also make these claims against architects and engineers directly. A trial judge in the Superior Court of New Jersey in Morris County recently addressed what is required to maintain such a claim in the case of Township of Parsippany-Troy Hills vs. Thomas Controls, Inc.

Background: The Lawsuit

The Township of Parsippany-Troy Hills sued Thomas Controls, Inc. over its work on construction improvements to the Township’s wastewater management treatment plan project. The Township had separately contracted with Keystone Engineering Group to act as engineers on the project. Thomas filed counterclaims against the Township and filed a third-party complaint against Keystone, suing it for alleged negligence, delay and professional malpractice. Keystone filed a motion to dismiss Thomas’s third-party complaint, arguing that the New Jersey Affidavit of Merit Statute requires that an affidavit of merit must be filed within 120 days of a defendant filing an answer when the defendant is a licensed professional and the claims are for negligence or professional malpractice. As a licensed engineer, Keystone argued that this law protected it because Keystone did not file an affidavit of merit within the required time frame.

Published on: December 7, 2023

New Jersey Construction Law Decision Examines Role of Good Faith in Construction Contracts

by Maurice W. McLaughlin

An appellate court recently examined the covenant of good faith and fair dealing in New Jersey construction contracts in the case of Konopka vs. Brown’s Heating, Cooling, Plumbing.

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Background

Konopka hired Brown’s as a contractor to install a Carrier gas furnace in his home. Brown was to supply labor and materials in exchange for the homeowner paying $19,800. The contract provided that change orders had to be in writing. One-third of the contract price was payable on signing, one-third when work started, and one-third upon completion. The homeowner paid the first installment. The job started on August 26, 2015. The homeowner had not yet paid the second installment, but the contractor wanted to work with him. However, on September 9, 2023, Brown’s sent an email which terminated the contract. The Court explained that:

Published on: November 13, 2023

New Jersey Employment Law Decision Examines Evidence Needed to Prove Whistleblower Retaliation

by Maurice W. McLaughlin

New Jersey whistleblower retaliation lawsuits turn on the question of evidence. This is a frequent area of dispute in New Jersey employment law. A New Jersey appeals court recently examined the evidence necessary to establish a claim of whistleblower retaliation under the New Jersey Conscientious Employee Protection Act, New Jersey’s Whistleblower Law, in the case of Carol Smith vs. Konica Minolta Business 7-300x225 Solutions U.S.A., Inc.

Background

Carol Smith worked for Konica Minolta Business Solutions, U.S.A., Inc. (“KMBS”) as a sales representative selling business document management technology and solutions for fourteen years. She worked out of KMBS’s Iselin office. She used her own personal laptop throughout her employment.

Published on: October 19, 2023

New Jersey Construction Law Decision Examines Prompt Payment Act

by Maurice W. McLaughlin

One of the most difficult problems in New Jersey construction law for contractors and subcontractors is getting paid. Fortunately, a powerful remedy exists in the New Jersey Prompt Payment Act. A recent appellate court decision examined frameup-225x300 the New Jersey Prompt Payment Act in the case of Jo-Med Contracting Corp. vs. City of Linden.

Background

The City of Linden contacted Jo-Med to submit a bid for emergency repair work on approximately 20 feet of sewer repair, together with approximately 30 feet of related curb replacement. Jo-Med submitted a bid for $25,000 based on the job description provided by the City engineer; the bid stated that the cost would be higher if Jo-Med ran into unforeseen problems not apparent in the City’s description, in which case it would bill the City on a time and materials basis. Jo-Med was awarded the contract. The City’s engineer told Jo-Med’s owner that he would “work with him for additional charges to finish the work.”

Published on: October 18, 2023

New Jersey Wage and Hour Decision Demonstrates Power of Recordkeeping – And the Perils of the Lack of It

by Maurice W. McLaughlin

New Jersey employment law requires that employees must be paid at regular intervals, at least twice per month. The proposition that employees should be paid for the time that they work does not seem to be illogical. However, litigation over non-payment of wages is all too us-supreme-court-300x200 common. The New Jersey Appellate Division recently addressed one of the laws behind this issue in the case of Veronica Villalobos v. Beast Coast Moving Limited Liability Company.

Background

Veronica Vilalobos and Joe Esquijarosa brought suit against their employer, Beast Coast Moving Limited Liability Company, for violation of the New Jersey Wage Payment Law, in the Law Division of the Superior Court of New Jersey, sitting in Bergen County.

Published on: September 28, 2023

Can an Employer Rescind a Job Offer Under New Jersey Employment Law?

by Maurice W. McLaughlin

It’s a nightmare scenario for an employee. She has a good job, but has received the opportunity of a lifetime. She quits her job, moves to a new city, and gets ready to start her new position. Then, just before she starts, the prospective employer calls and says, “Oops, we’ve changed our minds. Sorry….” Now she’s in a new city and maybe a new state, with a new lease or mortgage, and no job. Does the law provide her contract-1464917__340-300x200 with any remedy? Fortunately, New Jersey employment law does provide relief under certain conditions.

Breach of Contract

The employee is in the best position if she received an employment contract. If she has a written contract, she has the full range of remedies for breach of contract. This does not mean that the prospective employer does not have defenses – there may be a perfectly good reason for rescinding the offer. For example, the offer could be for an attorney who was disbarred or a doctor who lost her license to practice medicine. However, there is a good chance that the contract will provide the employee with a remedy in court.

Published on: September 27, 2023

New Jersey Law Against Discrimination Applies to Mergers

by Maurice W. McLaughlin

A recent New Jersey employment law decision in the case of Rosemary Beneduci vs. Graham Curtin, P.A. addressed when failing to offer an employee of one business entity a job with a second when the two merge constitutes an illegal employment practice under New Jersey’s Law Against Discrimination. While the case involved two law firms, it would be equally applicable to any employers. NJ_State_House-300x200

Background

As the opinion explained them, the facts are relatively straightforward. Rosemary Beneduci was a long-time employee of Graham Curtin, P.A., a major New Jersey law firm. She had been on disability leave for knee replacement surgery. At the same time, Graham Curtin was merging with a second firm, McElroy Deutsch. When the merger was completed, McElroy would be the surviving firm. All of the attorneys and employees at Graham Curtain who did not leave for another firm were offered employment with McElroy except for Beneduci. All of them became employees of McElroy except for Beneduci and one part-time employee who chose to retire. The testimony indicated that Graham Curtin’s employees were hired based on the recommendation of its former managing partner; he recommended all the employees be hired by McElroy except for Beneduci. When Beneduci emailed the managing partner, her direct supervisor, that she would be returning to work, he met with her, terminated her and offered her a severance agreement. She rejected the agreement and sued Graham Curtain, its managing partner, and McElroy for violation of the New Jersey Law Against Discrimination.

Published on: August 17, 2023

Supreme Court Decision Indicates That Application of the Joint Employer Doctrine in New Jersey Employment Law Cases is Question for Jury

by Maurice W. McLaughlin

New Jersey employment law recognizes the concept of “joint employers.” Under this legal doctrine, an employee can have two employers even though he only gets paid by one. The doctrine provides that when more than one entity acts as a person’s employer, both are jointly

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responsible for complying with employee protection laws such as the New Jersey Law Against Discrimination and the Conscientious Employee Protection Act (known as CEPA or the New Jersey Whistleblower Law).

The Appellate Division of the Superior Court of New Jersey explained in the case of Pukowsky v. Caruso that the following factors are to be considered when determining whether the joint employer doctrine should cause a person or business to be a joint employer of an employee for employment law purposes.

Published on: June 8, 2023

New Jersey Supreme Court Decision on Classification of Workers is a Cautionary Tale for Employers

by Maurice W. McLaughlin

Independent Contractors versus Employees Under New Jersey Employment Law

Under New Jersey employment law, the classification of a worker as an employee or independent contractor has significant ramifications for both the employer and employee, including the ability of the employer to shift the cost of insurance, payroll taxes and benefits to the employee, and relieving it from having to pay time and a half for overtime. The New Jersey Supreme Court explained in the seminal case of building-home-construction-contractor-blueprint-architecture-300x200 Hargrove vs. Speepy’s LLC, that there are different, fact sensitive tests for this determination depending on the context, such as for wage issues, workers compensation and unemployment. More recently, the Supreme Court addressed this issue in the context of whether an employer must make contributions for disability and unemployment in the case of East Bay Drywall, LLC vs. New Jersey Department of Labor and Workforce Development.

Background: East Bay’s Business Model

Published on: May 24, 2023

New Jersey Business Divorce Examined by Appellate Division

by Maurice W. McLaughlin

New Jersey business law presents no thornier area than business divorces – when a venture goes south and the owners – the partners, corporate shareholders or limited liability members – acrimoniously split up. The Appellate Division of the Superior Court of New Jersey recently addressed such a painful business divorce in the case of Segura columns-round-300x201 v. Shah.

Background: Christina Segura vs. Imran F. Shah

Christina Segura dated Imran Shah. After about six months they decided it would be a good idea to go into business together, so they formed a partnership. The partnership agreement allowed them to engage in virtually any profit-making business.