New Jersey Lawyers Blog

Published on: August 17, 2018

The Extent of State University’s Immunity from Local Governance

baltimore-city-hall-1482793__340-300x205 Montclair State University has spent the last decade or so trying to obtain approval from the County of Passaic and the City of Clifton to construct a roadway which would intersect with a county road. Both the County and the City raised concerns about the proposed development and Montclair State made significant efforts in an attempt to address those concerns. In 2014, Montclair State submitted an application to Passaic County for a permit to install traffic controls at the intersection.

Montclair State did not seek permission from Clifton or Clifton’s Land Use Board based upon belief that, as a state organization, it was not subject to local regulations. Montclair State asserted this position largely based upon the 1972 New Jersey Supreme Court case of Rutgers v. Piluso.

The question in the Rutgers case was whether Rutgers University was subject to zoning ordinances of the town where it was located, Piscataway. Piscataway had an ordinance which restricted the number of matriculating students’ “family dwellings” Rutgers could have. When Rutgers sought to build more, the town denied the request, citing the ordinance. Rutgers then brought a suit seeking a determination from the court that Rutgers was not subject to local zoning ordinances because it was an instrumentality of the State of New Jersey.

Published on: July 25, 2018

New Jersey’s Sick Leave Law

by Pauline M.K. Young

love-3365338__340-300x191 On May 2, 2018, New Jersey’s governor, Phil Murphy signed into law New Jersey’s Paid Sick Leave Act. This new Act requires employers to provide up to 40 hours of paid sick time to covered employees each year (excluding most construction employees under a collective bargaining agreement and public employees who already have paid sick leave). New Jersey is now the tenth state to enact such legislation.

In 2008 New Jersey enacted the Family Leave Act. That law required employers to provide for up to six weeks of benefits to care for sick family members or newborn babies. However, it does not cover the employee’s own individual sick time and only applied to employers with fifty or more employees.

In 2013, the State enacted the Security and Financial Empowerment (“SAFE”) Act which required employers to permit twenty days of unpaid leave without taking disciplinary action if the employee was a victim of domestic violence.

Published on: July 12, 2018

New Jersey Able Account Update

by Jennifer C. Meusel

On June 18, 2018, The New Jersey Human Services Commissioner announced a new program to help individuals with disabilities through ABLE accounts which can now be opened in New Jersey. By opening an ABLE account in New Jersey, individuals with disabilities can save tax free for certain eligible expenses (qualified disability expenses) and the funds saved in the ABLE account will not be counted as assets for Medicaid and other benefit programs. able-account-300x214

ABLE stands for “Achieving a Better Life Experience” and the Act authorizing these accounts was signed into law by President Obama in December 2014. The purpose of the law was to allow tax-free savings accounts to be set up by individuals with disabilities. Continue reading

Published on: July 11, 2018

McLaughlin & Nardi’s Employment Attorneys Successfully Appeal Psychological Disqualification of Applicant for New Jersey Correction Officer Position.

by Maurice W. McLaughlin

New Jersey’s Civil Service System is designed so that government employees are hired based on their merit, not on nepotism, favoritism, cronyism, bribery or political connections. New Jersey’s Civil Service laws and regulations do this by setting up a system where candidates are tested and graded objectively against other applicants. They are then ranked according to their scores and other qualifications, and hired based on their rank. This testing and ranking system is administered by the New Jersey Civil Service Commission (formerly known as the Merit System Board).

One of the areas where merit is most critical is in the selection and hiring of law enforcement officers, given the vast powers and responsibilities our society places on their shoulders. As a result, the hiring process is significantly more intense than for the hiring of other civil service employees. In addition to a written test, there are also physical examinations and intense background screening.

All of these screening criteria can – and must be – objectively reviewed. However, one additional area of the law enforcement screening process can allow an examiner’s subjective bias to creep through into the testing results. This area is the psychological screening for candidates for New Jersey law enforcement jobs. Obviously this is a legitimate and important line of inquiry necessary before giving young men and women weapons and the power to arrest people. However, subjective biases can influence an examiner’s reading of the examination results. Continue reading

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

by Maurice W. McLaughlin

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.