New Jersey Lawyers Blog

Published on: May 31, 2017

Confidentiality Privileges in Internal Employer Investigations

puzzle-693873__340-300x228 An attorney-client relationship involves the reasonable reliance by an individual (the client) on the professional knowledge and/or skills of an attorney who is aware of and accepts responsibility for that reliance. While a written agreement is not required for this relationship to exist, there must be some mutual understanding, consensus, and/or act manifesting the acknowledgement of the relationship.

One of an attorney’s obligations to a client the duty to maintain the confidentiality of communications with the client. The New Jersey Supreme Court has said that:

Such an obligation is necessary for several reasons. Persons who seek legal advice must be assured that the secrets and confidences they repose with their attorney will remain with their attorney, and their attorney alone. Preserving the sanctity of confidentiality of a client’s disclosures to his attorney will encourage an open atmosphere of trust, thus enabling the attorney to do the best job he can for the client.

Published on: May 22, 2017

Discharge Federal Estate Tax Liens Prior to Sale of Property

by Jennifer C. Meusel

key-2114044__340-300x169 Generally, before the estate of a decease person can sell real estate, the individual(s) named as executor in the will must probate and be formally appointed as executor. If there is no will, then the closest heir at law must apply to the surrogate’s court to be appointed as administrator of the estate. An administrator would follow the same steps as an executor in order to sell real estate.

Estates with a value in excess of $5,450,000 are subject to federal estate tax pursuant to IRC Section 6324. IRS estate tax liens automatically attach to real property (“real estate”) which was owned by a decedent on her date of death. In order to have this tax lien discharged, the seller must follow these steps in order to close on the sale of the property and have the federal estate tax lien discharged:

The executor of the estate must complete and file IRS Form 4422 and provide the required supporting documents. In order to compete this form you must know the value of all estate assets and expenses. And you must have the required supporting documentation including: the last will and testament, the contract for sale of the real estate, the closing statement or proposed closing statement for the sale (which shows all payments, credits, expenses and offsets), the federal estate tax form 706 and documentation reflecting the value of all the estate’s assets. With Form 4422 the executor must also submit for 8821, a tax information authorization form. Additionally, IRS Form 4422 must be filed at least 45 days prior to the closing of the sale of the real estate.

Published on: May 22, 2017

The Winters Problem: Public Employees’ Catch 22

by Maurice W. McLaughlin

electrician-1080561__340-300x200 Our employment lawyers represent New Jersey public employees at the state and local level. One problem that we have run into representing public employees is a recent opinion by the New Jersey Supreme Court which severely limits public employees’ options when their government employers have taken wrongful actions against them.

Avenues for Redress

New Jersey employment law gives government employees a variety of avenues for redress when their employers have taken action which violates their rights.

Published on: May 17, 2017

New Jersey Court Imposes Restrictions on Police Officers Taking Leave to Hold Elected Office

by Maurice W. McLaughlin

police-car-1889057__340-300x300 Our employment attorneys handle New Jersey civil service appeals and litigation. The Appellate Division of New Jersey Superior Court recently issued a decision on “dual officeholding” which affects the rights of New Jersey Civil Servants.

Gary DeMarzo was hired as a police officer by Wildwood in 1998. In 2007 he was elected a city commissioner. Under New Jersey’s Walsh Act, a “commission type” government combines the functions normally exercised separately by a mayor and council into a single board of commissioners, which exercises both legislative and executive and legislative power for the municipality. The Wildwood Board of Commissioners thus exercised executive power over the Wildwood Police Department. DeMarzo applied for unpaid leave from the Police Department in accordance with the New Jersey Civil Service Act.

The City of Wildwood filed an action in the Superior Court of New Jersey requesting a declaratory judgment that the positions of commissioner and police officer were incompatible. The trial court judge found the two positions were, in fact, incompatible. However, rather than ordering DeMarzo to give up one of the positions, it crafted a set of restrictions on DeMarzo’s function as a commissioner. The City appealed, arguing that the trial judge erred in this ruling.

Published on: May 15, 2017

Guidance for New Jersey Employers and Employees About President Trump’s Executive Order Promoting Free Speech and Religious Liberty

by Maurice W. McLaughlin

rubics-cube-2108030__340-300x200 President Trump recently issued an “Executive Order Promoting Free Speech and Religious Liberty.” We have been asked what this will mean for New Jersey employers or employees. For private sector, and New Jersey state and local public sector employers and employees, the answer is probably not much, if anything. Let’s break it down by some of declarative provisions.

Section 1. Policy. It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom. ….Umm, well, that’s been the policy of the government for decades now, so nothing much should change there.

Sec. 2. Respecting Religious and Political Speech. All executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech. In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury. As used in this section, the term “adverse action” means the imposition of any tax or tax penalty; the delay or denial of tax-exempt status; the disallowance of tax deductions for contributions made to entities exempted from taxation under section 501(c)(3) of title 26, United States Code; or any other action that makes unavailable or denies any tax deduction, exemption, credit, or benefit. First, again, protecting free speech and free exercise of religion are already the federal government’s policy. Discrimination by employers against employees is already prohibited by federal law, and both federal and New Jersey employment law require employers to provide “reasonable accommodation” so employees can exercise their religion, so no change there. And if you’re in the private sector – too bad; the First Amendment only protects you from the government, not your private sector employer. Further, those protections already exist in the public sector.

Published on: May 2, 2017

New Jersey Court Rules that Unemployment Benefits Should Not Lower Lost Pay Recoverable from Employer Which Discriminates Against Disabled Employee

by Maurice W. McLaughlin

wheelchair-1365410__340-300x300 Our employment lawyers represent employers and employees in New Jersey labor and employment litigation. Each employment case has two parts. The first is liability – did the employer commit the wrongful act of which it is accused by the employee? If the answer is no, the case is over; if the answer is yes, then the employee must prove damages. One question which has bedeviled courts is whether unemployment compensation received by an employee should reduce the damages she can receive for lost pay resulting from an allegedly discriminatory firing. The Appellate Division of the Superior Court of New Jersey has now answered this question with a resounding “no.”

New Jersey provides a wide range of employment protections to employees. These laws provide for a range of remedies if employees are the victim of unlawful conduct by their employer. Some laws provide for recovery of damages for emotional distress. Sometimes, in especially egregious cases, punitive damages may be available. If the particular statutes provide for it, such as New Jersey’s Law Against Discrimination (known as the “LAD”) and the Conscientious Employee Protection Act (known as “CEPA”), if the employee is successful at trial the court may even order the employer to pay the employee’s attorneys fees.

The basic element of damages in employment cases, however, is lost pay. All other elements of damages flow from lost pay. If an employee is unemployed for a year, the pay she would have made during that time is recoverable as damages if she wins her suit. If after a year she then gets a job earning $10,000 per year less, the difference is recoverable as well. If after a year she gets a job making the same or more money, her damages end when she gets the new job.

Published on: April 25, 2017

Continued Clarifications of the Conscientious Employee Protection Act

by Pauline M.K. Young

police-1714956__340-300x200 New Jersey’s Conscientious Employee Protection Act (“CEPA”) provides a remedy for employees who are wrongfully terminated in retaliation for objecting to conduct which is believed to be illegal. This Act is often referred to as the New Jersey “whistleblower law.” In fact, it is one of the most liberally interpreted and expansive whistleblower laws in the country. CEPA is a relatively new law, enacted n 1986, and thus has been the subject of much debate, misunderstanding, and misapplication.

CEPA provides wrongfully terminated or retaliated against employees with an avenue to seek redress. An employee is protected under CEPA if she disclosed, objected to, or refused to participate in an act, policy, or practice of the employer which the employee reasonably believed violated a law, regulation, or public policy. If the employee is then fired, harassed, or otherwise retaliated against as a direct result of the disclosure, objection, or refusal, that employee may have a claim under CEPA.

In the recent case of Fraternal Order of Police, Lodge 1 v. City of Camden, police officers brought an action against the City claiming (among other things) retaliation in violation of CEPA for the officers’ objections to the City’s policies regarding police-civilian interactions, based upon the belief that the policy violated the anti-quota law.

Published on: April 6, 2017

Sexual Orientation Discrimination in the Seventh Circuit and Comparison with New Jersey’s Law Against Discrimination

by Maurice W. McLaughlin

pencil-1385100__340-300x200 Here at the New Jersey Lawyers Blog we usually stick to New Jersey law (the name is probably a giveaway). However, a federal decision this week in the United States Court of Appeals for the Seventh Circuit (with jurisdiction over appeals from the federal courts in Illinois, Indiana and Wisconsin) deserves mention. In the case of Hively vs. Ivy Tech Community College of Indiana, the Seventh Circuit held that firing an employee because of her sexual orientation is illegal sex discrimination in violation of Title VII of the Civil Rights Act of 1964. It became the first Federal appeals court to so hold. It broke with many of its sister circuits. The United States Supreme Court has never decided the issue.

Kimberly Hively was a part-time adjunct professor at Ivy Tech. She applied for at least six full time teaching positions but was rejected each time. Finally, her part-time contract was not renewed. Hively was only lesbian. She filed a complaint with the U.S. Equal Employment Opportunity Commission (the “EEOC”) alleging sex discrimination in violation of Title VII because she claimed that had been terminated because of her orientation. The EEOC issued a right to sue letter, and she filed suit in the United States District Court for the Northern District of Indiana pro se (on her own without a lawyer). The District Court dismissed her suit, ruling that discrimination because of sexual orientation was not protected by Title VII. She appealed to the Seventh Circuit. Initially a three judge panel of the Seventh Circuit agreed with the District Court and ruled against her. However, the entire court then voted to hear her appeal en banc (by the whole court), and reversed its prior decision.

The Seventh Circuit had several reasons for its holding. First, in 1989 the Supreme Court held that the practice of gender stereotyping was illegal sex discrimination. Then in 1998 it held that it made no difference whether or not the harasser was of the same or a different gender as the victim provided that the harassment was because of the victim’s gender. It then reasoned that if the stereotype is that a woman should marry a man Hively would not have been fired if she had married a person of the other sex, then she was discriminated against because of her gender because she married a woman, a person of the same sex.

Published on: April 6, 2017

Fiduciary Duties and the Business Judgment Rule: Bad Judgment Without Bad Faith Does Not Create Liability for Directors, Officers and Owners

by Maurice W. McLaughlin

thumbs-up-1198238__340-300x300 Our attorneys represents businesses and the people who own and run them. One source of significant conflict in New Jersey business law are the fiduciary duties of the directors, officers and owners of businesses.

New Jersey business law imposes fiduciary duties on a company’s directors and officers. This also applies to joint owners, including shareholders in corporations, partners in partnerships and members in limited liability companies (also known as “LLCs”). Essentially, under New Jersey law directors, officers and joint owners act as trustees to all of the business’s owners. They owe a duty of loyalty to the owners, including both the majority and minority owners. As effective trustees, they must place the interests of the owners ahead of their own. They also owe a fiduciary duty of care – they must exercise reasonable care in carrying out their duties.

Breach of these fiduciary duties open directors, officers and owners up to personal liability. They may be sued for violation of these duties if any of the owners allege that they suffered harm, financial or otherwise, because of a breach of these fiduciary duties.

Published on: April 4, 2017

New Jersey Supreme Court Issues Opinion on Fraudulent Conveyance

by Maurice W. McLaughlin

american-963191__340-300x200 New Jersey’s Uniform Fraudulent Transfer Act, often referred to as the “UFTA,” is designed to protect creditors from debtors who transfer assets to avoid paying their debts. New Jersey’s Supreme Court recently issued a landmark decision on the UFTA.

In the case of Motorword, Inc. vs. William Benkendorf, et al., the New Jersey Supreme Court overturned an Appellate Division decision which had approved of the cancellation of a loan in a very fact-sensitive decision. Carol and Morton Salkind owned multiple companies, including Motorworld, Inc., Fox Development, Inc., and Giant Associates, Inc. Benk did landscaping work for Fox and Giant; Fox and Giant paid approximately $4,000,000 to Benk, but still owed about $1,000,000. Morton Salkind and Benk’s owner, William Benkendorf, were longtime friends and business associates, but Benkendorf did not expect to collect the last $1,000,000.

Benkendorf ran into trouble with the IRS and needed to resolve some payroll tax issues. He asked Morton for a loan. Morton agreed, but required that it go through Motorworld, and that the debts of Giant and Fox could not be used to offset the loan obligation. They signed the note for the loan, and Carol loaned $500,000 to Motorworld to fund the loan. Benkendorf did not pay, despite extensions and amendments, and incurred significant interest and penalties which increased the amount due to more than $1,000,000. Eventually, because of Benkendorf’s financial difficulties, Morton agreed to forgive the loan from Motorworld in exchange for Berkendorf forgiving the amounts due from Fox and Giant. So essentially the debts owed between the Salkinds’ companies and Benkendorf and his companies were mutually extinguished, which would be fine and fair – and legal – if the story ended there. (Of course, if it did the courts would have never become involved….)