New Jersey Lawyers Blog

Published on: February 19, 2019

New Jersey Raises Minimum Wage

Background

On February 4, 2019, Governor Phil Murphy signed legislation which will raise the minimum wage in increments culminating in a minimum wage of $15 per hour on January 1, 2024. The new law puts New Jersey at the forefront of the “living wage” movement, while the phase in is designed to lessen the impact on small businesses. The new law amends the New Jersey Wage and Hour Law, which governs minimum wage and overtime requirements.

The legislation is the result of negotiations between the Governor and Legislature lasting more than a year. The amendment was praised by labor unions and most Democrats in the state, but opposed by the New Jersey Chamber of Commerce and most Republicans.

Published on: February 19, 2019

Rubio Introduces Freedom to Compete Act

by McLaughlin & Nardi, LLC

contract-1464917__340-300x200 Senator Marco Rubio recently introduced the Freedom to Compete Act. This proposed law would prohibit employers from entering into or enforcing non-compete agreements with lower level employees while simultaneously protecting employers’ trade secrets.

Non-Compete Agreements

Non-compete agreements are binding contractual restrictive covenants which limit an employee’s ability to compete with her employer after she leaves or while she is employed. These agreements normally prohibit the employee from forming a competing business, and also from directly or indirectly capacity by working for a competitor or soliciting their employer’s customers.

Published on: February 9, 2019

Fiduciary Duties: Rights and Obligations to Fellow Owners

by Maurice W. McLaughlin

The Benefits and Responsibilities of Ownership

Becoming the owner of a business has tremendous advantages: Owners can rise or fall based on their own merits, and when expenses are paid the remaining profits belong to the owners. However, there are also disadvantages, such as the risk that the business will lose money, and responsibility for the business’s payroll and debt. In addition to this stands business owners’ duties to their co-owners, be they partners in a partnership, shareholders in a corporation, or members in a limited liability company.

Under New Jersey business law, owners are placed in a special position of trust vis a vis their fellow owners, and the law thus imposes special responsibilities on them. These responsibilities are known as “fiduciary duties.”

Published on: February 8, 2019

Thank You, National Enquirer, For Showing Us How Not to Negotiate

by Maurice W. McLaughlin

Dunce Earlier this year the Enquirer published an embarrassing story with text messages and photos of Jeff Bezos, the owner of Amazon and the richest man in the world, with his mistress. Bezos also owns the Washington Post, which has investigated the Enquirer’s relationship with President Trump, and published critical stories about the Enquirer. The same day the story was published, Bezos and his wife, the author MacKenzie Bezos, announced their divorce. Bezos tasked his security chief, Gavin de Becker, with investigating how the Enquirer obtained the text messages and photos.

Then, on February 7, Bezos posted a blog post accusing the Enquirer of threatening to post more embarrassing photos and text messages if Bezos did not drop the investigation. Bezos claimed that the threats were made by a lawyer for the Enquirer through email.

And thus, if true, the National Enquirer has taught us all a great lesson about what not to do in negotiations.

Published on: February 6, 2019

New Jersey Amends Law Against Discrimination to Protect Employee Breastfeeding

by Maurice W. McLaughlin

baby-2242638__340-300x210 New Jersey’s Law Against Discrimination gives employees some of the strongest legal protections against discrimination and harassment in the nation. However, these protections have recently been expanded. In one of his last acts as governor, Chris Christie signed the Legislature’s amendment to the Law Against Discrimination its protections to include mothers who are breastfeeding.

The New Jersey Law Against Discrimination

The Law Against Discrimination was enacted in 1945, placing New Jersey at the forefront in protecting employees’ from workplace discrimination. Indeed, the Law Against Discrimination was the first statewide civil rights enforcement law. Since then it has been amended many times by legislation and court decisions, always expanding and strengthening New Jersey’s protections against discrimination.

Published on: February 4, 2019

New Jersey Solid Waste Transportation: NJDEP Regulations

by Pauline M.K. Young

New Jersey solid waste transportation is highly regulated by the New Jersey Department of Environmental Protection (“DEP”). While most businesses in New Jersey require some level of truck-3503831__340-300x200 regulation, licensing, and/or registration, garbage hauling is a particularly scrutinized industry.

Part of the authorization process (and ongoing regulation) of solid waste transporters includes obtaining a Certificate of Public Convenience and Necessity (“CPCN”). A CPCN provides the State with specific information regarding a hauler’s operations including hours of operations, owner information, exact fees and rates charged by that hauler to customers, territories (counties) served, and the financial condition of the company. Once a CPCN is obtained, the transporter must file annual reports (also known as utility reports) to update all of that information.

The requirement’s for a CPCN are set forth in the Solid Waste Utility Regulations. These rules and regulations are quite specific and far-reaching into many of the operations of the transportation company.

Published on: February 1, 2019

Employees’ Duty of Loyalty, Competition and Customer Lists

by Maurice W. McLaughlin

the-dollar-3125419__340-300x200 Some of the areas in which businesses make their largest investments of time and expense are trade secrets (including customer lists) customer relations and client development, and employee development. However, these interests may conflict, especially when highly placed employees leave a firm. This is an area of potentially bitter dispute in New Jersey business law and employment law.

Businesses have many trade secrets, but the most important of these is often information regarding its customers. Because of intense competition, and the time, effort and expense which businesses invest in cultivating their clients, customer lists, especially customer lists in service industries, are protected by the common law and New Jerseys Trade Secrets Act.

Businesses also invest significant expense in training and developing their employees, even aside from salary and benefits. Thus, New Jersey business law and employment law imposed a duty of loyalty on employees, even those who do not have a restrictive covenant. This duty of loyalty prohibits employees from competing with their employers while they are employed. An employee may not induce her employer’s employees or customers to leave her employer, nor may she appropriate her employer’s trade secrets. The employee may plan to leave, and if the employee does not have a restrictive covenant she can even seek employment with competitors or even set up a business entity which will compete with the employer after she leaves. However, the employee cannot go beyond the planning stage while still employed.

Published on: January 30, 2019

New Jersey Supreme Court Clarifies Rules on Business to Business Consumer Fraud

by Maurice W. McLaughlin

New Jersey’s Consumer Fraud Act provides some of the strongest consumer protections in the United States. These protections have long been extended to consumers which tow-truck-309953__340-300x176 are business entities. It is one of the strongest of New Jersey’s business law. However, the parameters of when a business, as opposed to a person, was acting as a “consumer,”have yielded conflicting decisions. The Supreme Court of New Jersey has recently issued an important decision affirming business to business consumer fraud, and establishing a test to clarify when a business should be considered to be a “consumer,” and when goods are considered “merchandise” invoking the protection under the Consumer Fraud Act.

The All The Way Towing Case: Background

On January 24, 2019, the New Jersey Supreme Court issued its opinion in the case of All the Way Towing, LLC v. Bucks County International, Inc. In that case All the Way Towing (ATW) , a limited liability company in the towing business, ordered an “International” brand all wheel drive truck from Bucks County International, Inc. (BCI), with an autoloader tow body manufactured by another company, Dynamic Towing Equipment and Manufacturing, Inc. (Dynamic). ATW spent several months negotiating the price and specifications with BCI’s salesperson, and then placed a $10,000 deposit.

Published on: January 28, 2019

Recent New Jersey Appellate Division Decision Refuses to Compel Arbitration In Age Discrimination Suit

by Robert Chewning, Esq.

help-164755__340-300x199 The New Jersey Appellate Division recently issued a decision which found an arbitration agreement unenforceable against a plaintiff who was alleging age discrimination under New Jersey’s Law Against Discrimination, N.J.S.A. 10:5-1 (“LAD”). Our attorneys represent both employers and employees in employment law, and the determination of whether an arbitration agreement is enforceable is one of the first issues that must be decided in any case where there is a signed arbitration agreement.

The decision was in the case of Flanzman v. Jenny Craig, Inc. In that case, the employer, Marilyn Flanzman, was an eighty-two year old former weight loss counselor who worked for Jenny Craig, Inc. for twenty-six years. Who filed suit for alleged age discrimination and harassment. The trial court below compelled the case to proceed to arbitration. Marilyn filed an appeal based on the trial court’s order to compel arbitration. On appeal, the Appellate Division was asked to determine whether the arbitration agreement between the parties was invalidated because the parties failed to identify any arbitration forum or process for conducting the arbitration.

The Appellate Division ultimately ruled that the parties lacked a “meeting of the minds” and therefore held that the arbitration agreement was invalid, reversing the trial court’s decision below. The Court came to its decision because neither party could identify the rights that plaintiff was given under the arbitration agreement in exchange for plaintiff waiving her right to a jury trial. In its opinion, the Appellate Division found “selecting an arbitral institution informs the parties, at a minimum, about the institution’s general arbitration rules and procedures. Without knowing this basic information, parties to an arbitration agreement will be unfamiliar with the rights that replaced judicial adjudication. That is the parties will not reach a ‘meeting of the minds.’”

Published on: January 24, 2019

New Jersey’s Appellate Division Invalidates Electronic Arbitration Agreement in Employment Case

by Maurice W. McLaughlin

agreement-300x200 The Appellate Division of New Jersey’s Superior Court recently issued an instructive decision about arbitration agreements in employment law disputes. The case does not invalidate arbitration agreements – they are protected by both federal and New Jersey law – but it does show that the trend is that arbitration agreements are being construed strictly against the employers which drafted them.

The Skuse Case

In the case of Amy Skuse v. Pfizer, Inc., the Appellate Division invalidated an electronic arbitration agreement used by Pfizer for all its employees. The “agreement” was not on paper, but an electronic “training module.” Employees received an email which instructed them to complete the “electronic training.” Even if they didn’t, complete the training module, the employees would have be deemed to have agreed to the arbitration provision by continuing to work for Pfizer for another 60 days. The module allowed them to scroll past the text of the provision, and did not provide for the employees to indicate their agreement to arbitration, only their “acknowledgement” of the policy. The module then thanked the employee for “reviewing” the policy, but not for agreeing to it.