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Published on: February 16, 2016

McLaughlin & Nardi, LLC Attorneys Recover $289,918 For Homeowners in Construction Arbitration

McLaughlin & Nardi’s New Jersey construction attorneys recently completed a construction arbitration in the American Arbitration Association. After hearing the evidence, the arbitrator awarded our clients $289,918. Maurice McLaughlin was the lead trial attorney. He was assisted throughout by Pauline Young and Robert Chewning, who second chaired the hearings.

Background

The case involved Essex County homeowners who had contracted for extensive renovations to their kitchen. The total cost of the kitchen renovations was $152,725. The homeowners paid $126,362.50. However, the contractor never completed the job.

Published on: July 26, 2013

New Jersey Home Improvement Contractors That Violate The Consumer Fraud Act May Still Recover For The Value Of The Services Rendered

by Boris Peyner

In New Jersey home improvement contractors are heavily regulated by the Consumer Fraud Act (the “CFA”). The CFA and administrative regulations require strict compliance which cannot be ignored. Failure to follow these requirements can result in the home improvement contract to be found invalid and a homeowner’s a ascertainable lose can result in the home improvement contractor paying triple that amount and attorneys fees to the home owner.

However, recently the New Jersey Appellate Division held that a home improvement contractor can recover the value of the services rendered even if the contract violated the CFA.

In Gemini a dispute arose between a homeowner and his contractor with regards to home improvement renovations. The homeowner hired a contractor and an architect, who was his friend, to perform renovations on the home. The architect was the intermediary between the homeowner and the contractor. The architect made all the decisions for the homeowner and worked directly with the home improvement contractor.

The contractor initially began the work for the homeowner pursuant to a written contract. After the work began, however, the homeowner sought various changes which the contractor orally agreed to perform and, subsequently, would forward his bills to the architect. A subsequent contract for the additional work was never prepared.
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Published on: June 25, 2013

New Jersey Employers Need To Be Aware of Discrimination Dangers in Using Background Checks for Hiring Decisions

by McLaughlin & Nardi, LLC

What does an employer’s use of criminal history information in hiring decisions have to do with employment discrimination? The U.S. Equal Employment Opportunity Commission (EEOC) has determined that an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination.

The situation has attracted attention from lawsuits involving an automobile manufacturer and a discount retailer who are alleged to have inappropriately used criminal background checks to deny employment to workers, resulting in discriminatory treatment. The lawsuits were brought under Title VII of the Civil Rights Act of 1964. Title VII is enforced by the EEOC and prohibits employment discrimination based on race, color, religion, sex and national origin.

The EEOC issued updated employment guidance to address findings that the application of criminal background checks for employment decisions results in a disparate impact based on race and national origin. African Americans and Hispanics are incarcerated at rates disproportionate to their numbers in the general population, indicating an increased potential for disparate impact, but employers can show in an EEOC investigation that their particular employment policy or practice does not cause a disparate impact on the protected group.

Courts look to the following types of evidence to determine whether an employer was motivated by race, national origin, or other protected characteristics when using criminal records in a selection decision:

statements that are derogatory concerning the charging party’s protected group;
evidence that the employer requested criminal history information more often for individuals certain racial or ethnic backgrounds or did not give equal opportunity to explain criminal history to all groups;
treating a charging party differently from others not in the same protected group;
results of matched-pair testing that show different treatment because of a protected status; and
results of statistical analysis of applicant data, workforce data, or third party criminal background history data.

Published on: April 19, 2013

Accident Check List – Steps You Should Take Following a New Jersey Accident

by Boris Peyner

Everyone should do their best to avoid accidents that lead to injuries such as car, bus, motorcycle, or trucking accidents, a slip and fall accident, or a work related accident – but some accidents cannot be avoided. Once you get into an accident it can be hard to think clearly. You may be injured, stressed, confused, or overwhelmed. It is therefore important to keep a level head and follow the guide below to best ensure that your rights are protected.

Step 1: Report the accident to the appropriate authorities. Typically accidents are reported to the local police department. However, if you are on a state highway in New Jersey, the accident should be reported to the New Jersey State Police. Boating accidents must be reported to the New Jersey State Police, Marine Law Enforcement station in the area where the accident occurred. Work place injuries should be reported to management.

Do not discuss motor vehicle or boating accidents with others involved, this includes the other drivers’ insurance company. Direct any questions to your lawyer. Avoid posting comments on social media websites such as Facebook, Twitter, or Instagram, etc.

Discuss the accident only with the police during the investigations. All other discussions should be limited.
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Published on: July 3, 2012

Regulation of New Jersey Health Clubs

by Boris Peyner

Many fitness centers have begun to open around New Jersey. Owners should be aware that New Jersey strictly regulates businesses that provide “physical fitness or physical well-being” services.

For example, every health club facility must register with the New Jersey Division of Consumer Affairs and renew the registration every two years. In addition, all health clubs must reregister a change in ownership. Registration can be complicated because the Division of Consumer Affairs may request information about the facility’s ownership and operations. Having an experienced attorney familiar with the registration process is important for any new business owner.

In addition, all New Jersey health clubs must maintain a bond equal to ten percent of the gross income for the last fiscal year. The bond must be at least $25,000. Further, a $50,000 bond must be maintained if the facility is not operating but provides pre-opening memberships sales. All bonds must be filed with the Division of Consumer Affairs. If the facility is closed for longer than thirty days all members are entitled to prorated refunds.

New Jersey law also requires that all facilities offering health club services to have written contracts, with a copy provided to the member. In addition, contracts must have specific language on specific pages. For example, a member’s total payment obligation must be on the first page of any health club services contract. The contract must also advise members that the bond was posted with the Division of Consumer Affairs.
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Published on: May 23, 2012

Inspecting Bridal Gowns: Due Diligence Not Bar To New Jersey Fraud

by Maurice W. McLaughlin

Background: Due Diligence, Purchases and Sales of Business

In the sale of a New Jersey business, buyers normally perform due diligence such as inspecting profits, losses, revenue, expenses, bank accounts, tax returns and financial statements and the like. Contracts for the sale of a business often say that the buyer is not relying on a seller’s representations, but rather only on its own inspections. In many instances, conducting inspections and due diligence may bar recovery when the buyer believed going in to the closing turn out to be incorrect. The question then becomes, what if those mistaken beliefs were brought about by the seller’s own fraud?

Bridals Gowns Not What They Appear

Anwar and Donna Walid were looking to buy a business. Donna had worked at a high end retail clothing store in New York, studied textile design, and obtained a master’s degree in organization and development. Anwar, Donna’s husband, had a degree in electrical engineering and had worked in research and development for Lucent Technologies. They were highly educated people.
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Published on: May 9, 2012

Determining If a Chapter 7 or Chapter 13 Bankruptcy Is Right For You

by Boris Peyner

A New Jersey bankruptcy can be a helpful solution for a person struggling with debt. A New Jersey debtor can file for Chapter 7 liquidation or Chapter 13 reorganization. Each has its own benefits. Both provide relief to New Jersey debtors by wiping out their debts, thereby providing bankruptcy’s “fresh start.”

Chapter 7 Benefits

In New Jersey a Chapter 7 liquidation is relatively quick. Most people can get a discharge several months after filing for bankruptcy protection. This means that upon the completion of a Chapter 7 bankruptcy the court will order that debts are discharged and an individual can have a “fresh start.”

Published on: May 1, 2012

New Jersey Employment Laws

by Boris Peyner

New Jersey employment law is a comprehensive system which provides some of the strongest protections in the nation for New Jersey employees. New Jersey employees are protected against discrimination and whistle-blowing retaliation. New Jersey employment law provides for leave of absence for childbirth, adoption of a child, or serious health conditions. New Jersey has its own wage and hour laws that regulate minimum wage and overtime pay for New Jersey employees.

New Jersey’s Law Against Discrimination

The New Jersey Law Against Discrimination (the “LAD”) applies to all employers. The LAD prohibits discrimination or harassment in employment for a prohibited reason, including race, religion, color, gender, national origin, nationality, ancestry, age, marriage status, domestic partnership or civil union status, sexual orientation, identity, and disability. The list of protected job-related activities is expansive and includes recruitment, interviewing, hiring, promotions, discharge, compensation, and any term, condition or privilege of employment.

The LAD prohibits both intentional and inadvertent discrimination because of a discriminatory animus or bias. Intentional discrimination includes different treatment of individuals, as well as harassing statements or overt conduct. Indirect discrimination can include practices or policies that have an adverse impact on employees of protected categories. For example, requiring workers to be over six foot tall may have a disparate impact on woman and therefore violates the LAD. If, however, an employer can establish that the requirement is necessary to perform the job and there is no alternative available, then the policy would not violate the LAD.

New Jersey Whistle Blowing Protection

The Conscientious Employee Protection Act (“CEPA”) prohibits New Jersey employers from retaliating against employees who disclose, object to, or refuse to participate in actions which they reasonably believe are either illegal or in violation of public policy. CEPA protects all New Jersey employees and independent contractors. The New Jersey Supreme Court has described CEPA as the most far-reaching whistleblower statute in the nation. CEPA has been found so expansive that it even protects employees who erroneously accuse their employer of a wrong doing in good faith. New Jersey employees should beware, however, that in most circumstances they must advise a supervisor, in writing, and give reasonable time to correct the problem.
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Published on: April 30, 2012

Can-Spam Act: What New Jersey Business Owners Need to Know About Mass E-mails

by Pauline M.K. Young

The Can-Spam Act , signed into law in 2003, was the first federal law to establish national standards for commercial e-mails. “CAN-SPAM” actually stands for “Controlling the Assault of Non-Solicited Pornography and Marketing”.

The Act gives recipients of spam – i.e. unwanted commercial advertisements sent by e-mail – the ability to prevent spammers from continuing to bombard them with e-mails.

The Can-Spam Act’s main requirements for businesses which send out bulk commercial e-mails are:

The Can-Spam Act covers all commercial messages – even business-to-business e-mails;

The header cannot be false or misleading;

The subject line cannot be deceptive;

The message must be identified as an advertisement; the Act leaves wide leeway in how to do this, as long as the sender clearly and conspicuously discloses that the message is an advertisement;

The message must inform the recipient of where the sender is located. A post office box may be sufficient;

The e-mail must clearly and conspicuously advise the recipient as to how it can opt-out of receiving future emails. The notice should be drafted so that it is easy for an ordinary person to recognize, read, and understand. The Act suggests using alternative type, size, or color to improve its visibility.

There must be a simple, internet-based way for people to communicate their request to stop receiving the messages (such as a return email). Although the business may provide a menu to allow recipients to opt out of only certain types of messages, the business must include the option of stopping all messages.

The opt-out requests must be complied with promptly – meaning within ten business days, and honoring requests made at least thirty days after the message was sent.

The business cannot charge any fee or require any personal information (other than e-mail address) from the recipient in order to make the opt-out request.

Published on: April 27, 2012

People Eating Tasty Animals Shouldn’t Cybersquat: the Anti-Cybersquatting Piracy Act

by Maurice W. McLaughlin

Businesses acquire rights in a trade name which they use in commerce, whether they register it or not. One of those rights is protection from “cybersquatting.” This protection was added to the federal Lanham Act in 1999, which protects against unfair competition and is the main federal law protecting trade names, when Congress passed the Anti-Cybersquatting Piracy Act (known as the “ACPA”).

Cybersquatters register domain names likely to be used by businesses – sometimes in the tens of thousands – and then attempt to sell them to businesses or people with similar names. Sometimes they register variations of popular trade names, which is referred to as “typosquatting.” They may also use a program to obtain domain names already registered when the registrations expire, often using automated programs, which is referred to as “alert angling,” “extension exaggeration” or “renewal snatching.” The name cybersquattnig itself comes from the term “squatting,” in which people trespass and occupy vacant buildings.
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