New Jersey Lawyers Blog

Published on: June 28, 2018

Third Circuit Case Demonstrates How New Jersey’s Whistleblower Law Provides Greater Protection to Health Care Employees Than Federal Employment Law

workplace-615375__340-300x200 The United States Court of Appeals for the Third Circuit, which hears appeals from decisions in the federal courts of New Jersey, Pennsylvania and Delaware, recently issued a major decision interpreting the scope of coverage of the federal Emergency Medical Treatment and Active Labor Act (“EMTALA”). As the Third Circuit explained,

[The] shift from medical emergency management to primary care treatment has resulted in a “grave financial challenge” for hospital administrators. Many of them responded to this economic pressure by engaging in a practice known as “patient dumping.” That term refers to the practice of refusing to offer emergency room treatment to indigent patients who lack medical insurance, or transferring them to other medical facilities before their emergency medical condition has been stabilized. Congress attempted to address this situation by enacting EMTALA. EMTALA imposes certain mandates on hospitals regardless of whether a patient who presents to an emergency room has the ability to pay for treatment.

EMTALA requires hospitals to first examine each patient to determine whether an emergency medical condition exists. “[I]f the examination reveals the patient is suffering from an emergency medical condition, the hospital usually must stabilize the patient before getting into the business of trying to [discharge or] transfer him [or her] elsewhere.”[ A hospital that either (1) fails to properly screen a patient, or (2) releases a patient without first stabilizing his or her emergency medical condition thereby violates EMTALA.

Published on: June 24, 2018

FAQ’s on New Jersey’s Paid Sick Leave Legislation

by Maurice W. McLaughlin

men-1979261__340-300x200 New Jersey has joined nine other states and the District of Columbia in enacting a law to require that employers must provide their employees with paid sick leave. The law is among the toughest in the nation, and imposes many new requirements on employers. Below are some of the most frequently asked questions about New Jersey’s Paid Sick Leave Law.

What employers must provide paid sick leave?

Virtually all of them.

Published on: June 22, 2018

What Can a Beneficiary Do When a New Jersey Estate Administrator Fails to Act?

by Jennifer C. Meusel

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The Executor or Administrator of an estate in New Jersey accepts, under oath at the county surrogate’s office, that she will be responsible for administering the estate of the decedent, which includes gathering and liquidating assets, paying debts and taxes, filing required court documents, preparing and filing tax returns, and distributing the assets to beneficiaries. However, county surrogates do not supervise how an executor or administrator carries out the administration of the estate. On occasion, an Administrator or Executor fails to timely carry out their duties. This could be due to negligence such as failing to file timely tax returns or failing to keep appropriate records, or it could be more intentional misconduct such as misappropriating funds or ignoring instructions in the Will. In either case, if you, as a beneficiary, are not satisfied with the handling of the estate, you can seek to have the executor or administrator removed and replaced.

In order to remove an executor or administrator who has been appointed by the court, a beneficiary must file a formal complaint for an accounting and seeking removal .

A complaint for Accounting is filed in Superior Court of New Jersey, Probate Part to request an accounting, removal of the current Executor or Administrator and request appointment of a new person to serve as administrator to complete the estate administration. Such a complaint must be accompanied by a certification from one or more beneficiaries stating the wrong doing accompanied by an order to show cause. The order to show cause will be signed by the judge and will direct the executor or administrator to file a written answer to the complaint and appear in court. This will commence litigation which seeks to compel the administrator or executor to provide an accounting of the estate and which also seeks to have the executor or administrator removed and replaced with another person.

Published on: June 21, 2018

Appellate Division Rules That Entire Controversy Doctrine Has Limited Applicability to Arbitration of Tenure Charges Under New Jersey’s TEACHNJ Act of 2012

by Maurice W. McLaughlin

chalk-1551566__340-300x225 The Appellate Division of New Jersey’s Superior Court recently addressed a procedural question with significant implications for New Jersey teachers and other teaching staff members fighting tenure charges under the TEACHNJ Act of 2012.

The TEACHNJ Act changed the system for fighting tenure charges. Previously, a teacher or other teaching staff member would have the right to have their appeals heard before an administrative law judge, who would normally have a trial on the merits of the teacher’s objections and defenses. The results would then be sent to the New Jersey Department of Education, which could accept or reject the administrative law judge’s findings. Whatever the outcome, either party could appeal the Department of Education’s decision to the Appellate Division and then to New Jersey’s Supreme Court. Under the TEACHNJ Act, however, the administrative law process was eliminated, and objections to tenure charges are now heard by a single arbitrator in binding arbitration. There are only very limited grounds for appeal.

Recently, a teacher had a series of tenure charges filed against him. He had two separate charges of “inefficiency.” He then had a later tenure charge of “conduct unbecoming” for allegedly inflicting prohibited corporal punishment on a student. He objected that the entire controversy doctrine barred the charges because they occurred before the inefficiency charges were decided and therefore they all should have been brought together.

Published on: June 15, 2018

Sports Gambling in New Jersey

by Pauline M.K. Young

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New Jersey has been trying to legalize sports betting for years. One of the primary hurdles for that legalization has been the federal Professional and Amateur Sports Protection Act (PASPA). That law, enacted by Congress in 1992, make it unlawful for a government entity to authorize, operate, etc., gambling on competitive games in which athletes participate. PASPA – also known as the Bradley Act – excluded Oregon, Delaware, Montana, and Nevada from its sports betting prohibitions. New Jersey (and any other state which had licensed casino gambling) had a 1-year window to pass laws permitting sports betting. However, New Jersey did not pass such a law within that window of time.

Later, in 2011, New Jersey voters approved an amendment to the state constitution to permit the legislature to create laws to permit sports gambling. (Sports gambling would still not be permitted for college sporting events taking place in the State of New Jersey or involving a New Jersey team.)

In 2012 the first Sports Wagering Act was introduced to permit betting on sports at racetracks and casinos. That Act was challenged by virtually all major sports associations (NFL, MLB, NHL, etc.) and ultimately struck down by the District Court as violating PASPA.

Published on: June 1, 2018

The Use of Custom and Usage in Interpreting Commercial Contracts Under New Jersey Business Law

by Maurice W. McLaughlin

Enforceable contracts are the bedrock of a strong economy. If contracts were not enforced, parties could not rely on the other side performing because there would be no remedy if they breached. Therefore, commerce would break down. Enforceable contracts are so important to the economy, in fact, that the freedom to contract is included in both the New Jersey and United States Constitutions. Before a contract can be enforced, however, the parties and the reviewing court must figure out what the contract means. When the terms are clear this normally isn’t a problem. However, when the contract is ambiguous, or even just a part of it is unclear, the question becomes what evidence may be admitted to determine the meaning and intent of the contract.

As I’ve written earlier, New Jersey courts generally adhere to the “parole evidence rule,” which holds that when there is a clear, unambiguous contract, extrinsic, or external, evidence beyond the four walls of the contract is inadmissible to prove what the contract means. However, in New Jersey business law, the exceptions come close to swallowing the rule. Indeed, the New Jersey Supreme Court held as far back as 1953, in the case of Atlantic Northern Airlines v. Schwimmer, that all evidence is relevant if it will assist the trier of fact in determination what the parties to a contract intended and what the contract means – even if that evidence is extrinsic.

The question, then, is what sort of extrinsic evidence is admissible? In the case of commercial contracts, one source of evidence is custom and usage.

Published on: May 21, 2018

Pay for Suspended Teachers in New Jersey

by Pauline M.K. Young

back-to-school-1576791__340-300x200 Under New Jersey employment law, specifically Section 6-14 of Title 18A of New Jersey Statutes, tenured teachers may be suspended on disciplinary charges with or without pay while their tenure charges are pending a determination. However, the statute provides that if an arbitrator has not issued a decision on the charges by the 120^th day of the suspension, the board of education is required to pay the suspended teacher beginning on the 121^st day until the arbitration decision is issued. If the charges are dismissed at any stage, the teacher will be reinstated with full pay for the entire period of her suspension. If the charges are dismissed and the board of education appeals, and it continues the suspension during the appeal, the teacher must receive full pay during the appeal. If the charges are not dismissed at the arbitration and the employee appeals, she is not entitled to pay while the appeal is pending, but if the appellate court orders her to be reinstated she will then be entitled to her lost pay for the entire suspension. (The board is required to deduct any salary the employee was paid while she was suspended from what the board is required to pay her.)

The Appellate Division of New Jersey’s Superior Court, New Jersey’s intermediate appeals court, recently faced a situation not expressly covered by the statute – a situation where a tenured employee is suspended, the arbitrator upholds the termination, the employee appeals, and the appeals court does not order that the employee be reinstated but instead remands the case for a new arbitration hearing. In that case, Pugliese v. State-Operated School District of the City of Newark, two tenured teachers were suspended without pay pending resolution of their disciplinary charges. They contested the charges, and an arbitrator holding a hearing under New Jersey’s TEACHNJ Act of 2012 upheld the charges and ordered the teachers dismissed. The teachers appealed. The Appellate Division reversed the arbitrators’ decisions. However, it did not order reinstatement, but rather remanded the cases for further proceedings. The appeal, filed by the teachers, stretched the suspension well past the 120 day mark. The teachers argued that they should be paid while the proceedings continued, but district refused because it was the employees who appealed and the charges were not dismissed. The Commissioner of Education agreed. The teachers appealed.

The Appellate Division held that even though it was the employees who appealed and the tenure charges were not dismissed, the district had to pay the teachers during their suspension.

Published on: May 16, 2018

Construction Lien Law: Timing is Key

by Robert Chewning, Esq.

McLaughlin & Nardi’s New Jersey construction attorneys represent owners, contr house-construction-3370969__340-300x197 actors and building suppliers in the prosecution and defense of construction lien claims.

As discussed in McLaughlin & Nardi’s overview of construction liens, they can be powerful tools for construction contractors, subcontractors, and suppliers who are experiencing difficulties in getting paid for the work that they have performed.

However, when considering whether to proceed with filing a construction lien for either a commercial or residential project, it is important to know that the contractor (“claimant”) act promptly once it starts to experience payment issues.

Published on: May 14, 2018

Executors Should Protect Themselves By Properly Closing Out the Estate

by Jennifer C. Meusel

hand-229777__340-300x215 The last acts of an Executor of an estate are often making final distributions to the beneficiaries of the estate. But beware, in New Jersey, before making distributions, an Executor should require each beneficiary to provide a properly executed refunding bond and release.

Under New Jersey law, N.J.S.A. 3B:23-24, the executor or personal representative of an estate is required to take a refunding bond upon making a distribution pursuant to a dececendent’s Last Will and Testament. The same statue also requires that the refunding bond be filed with the surrogate who probated the decedent’s Will.

After all the estate assets have been collected, all debts of the estate have been paid, and a determination as to what each beneficiary is entitled to receive has been made, the executor or personal representative of the estate must prepare, or have the attorney representing the estate prepare, a refunding bond and release for each beneficiary which states, among other things, what the beneficiary will be receiving as their distribution from the estate.

Published on: May 8, 2018

Governor Murphy Signs Diane B. Allen Equal Pay Act Into Law

by Maurice W. McLaughlin

dollar-1362243__340-300x200 Fulfilling one of his campaign promises, Governor Phil Murphy signed the Diane B. Allen Equal Pay Act on April 24, 2018. The Act amends New Jersey’s Law Against Discrimination. The main purpose of the Equal Pay Act is to close the pay gap between men and women. Governor Murphy explained, “From our first day in Trenton, we acted swiftly to support equal pay for women in the workplace and begin closing the gender wage gap. Today, we are sending a beacon far and wide to women across the Garden State and in America – the only factors to determine a worker’s wages should be intelligence, experience and capacity to do the job. Pay equity will help us in building a stronger, fairer New Jersey.”

While its main purpose was to protect women and close the gender pay gap, the Act protects against discrimination in pay because of an employee’s immutable characteristic, such as race, religion, sexual orientation, age, etc. The bill strengthens the Law Against Discrimination in several ways, and makes it one of the strongest anti-discrimination laws in the United States.

Pay Disparities Illegal. The Act makes it illegal to pay members of a “protected class” at compensation rates, including both pay and benefits, less than other employees not in a protected class. Protected classes include not just gender, but also race, religion, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, gender identity, gender expression, disability, atypical hereditary cellular or blood trait, liability for military service, nationality, refusal to submit to a genetic test, or refusal make available the results of a genetic test to an employer.