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As the holiday season creeps up on us, it’s good that we have the chance to reflect on what we are thankful for. Here at McLaughlin & Nardi we have much to be thankful for this year.

First, we are thankful for you who give us the opportunity to help people for a living. This is a gift which for which we are profoundly grateful.

Second, we are grateful for the people who help us do that. This includes all of the people who work here. There are those whom you see, such as our attorneys and paralegals, but there are many who you don’t see, including those who do the administrative, research and support work which allows the rest of us to be your advocates and counselors. They are more than just coworkers; they are family.

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The New Jersey Department of Environmental Protection (“NJDEP”) regulates, monitors, and enforces a wide range of environmental protection and conservation laws throughout the State of New Jersey.  The NJDEP is a cohesive government organization which is involved in various programs and areas of environmental protection including recycling, clean water, air quality and pollution, open spaces, wildlife protection, business regulations, waste transportation and disposal, and other environmental areas.

Waste transportation and disposal is one of the major areas which the NJDEP monitors with  the important goals of: eliminating illegal dumping (and thus land and water pollution), eradicating criminal activity from the waste removal industry due to a historic connection between the industry and illegal conduct, and educating waste handlers of relevant rules and environmental impacts.

To achieve these goals, the New Jersey State Legislature and the NJDEP have enacted numerous laws, rules, regulations, and reporting requirements for waste transporters.  To start, most waste transporters are required to obtain a New Jersey A-901 license.  The process for obtaining an A-901 license is not a quick or easy one.  Before ever engaging in any waste transportation, the business must provide a great deal of information to the NJDEP, including the source of funding for the business, business locations, lease and lessor information, identification of owners and key employees, etc.  On top of that each key employee, owner, partner, officer, director, and managing member must complete a disclosure form which requires a great deal of specific and detailed information such as information regarding family members, employment history, and other personal details.  Moreover, each of these people need to be fingerprinted and have background checks conducted.

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skills-835747_960_720In New Jersey, obtaining a teaching certificate is a difficult task, requiring a great deal of credentials.  For the individuals who are issued a teaching certificate, it is a testament to the individual’s dedication, commitment, and passion for teaching.  Therefore, if your certificate is at risk of being revoked or suspended, it is important to know your rights and whether to challenge such a determination.

The State Board of Examiners may revoke, suspend or deny a teacher’s certificate for many grounds set forth in the New Jersey Department of Education’s regulations in the New Jersey Administrative Code, N.J.A.C.§6A:9B-4.4.  One of the grounds that the State Board of Examiners may revoke, suspend or deny a teaching certificate is on the basis of “conduct unbecoming a teacher.”  Like many legal terms, “conduct unbecoming a teacher” is inherently  broad and encompasses a wide variety of teacher activity.  Due to its broad nature, a look into how courts have defined and analyzed “conduct unbecoming a teacher” is important if your certificate is being revoked, suspended or denied to determine whether to appeal the revocation or suspension.

Courts have defined “conduct unbecoming a teacher” in multiple ways including :

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New Jersey employment law has long protected employees against discrimination in employment. New Jersey was one of the first states to do so, passing the Law Against Discrimination in 1947.  One of the things that New Jersey’s Law Against Discrimination protects employees from is discrimination because of disabilities.  This means that employers are prohibited from doing three things.  First, employers cannot take adverse actions, such as firing or demotion, against employees because of their disabilities.  Second, employers cannot harass or create a hostile work environment for employees because of their disability.  Finally, employeer cannot fail to make reasonable accommodations so that employees can do their job even with their disabilities.

When an employer violates New Jersey’s Law Against Discrimination, employees may sue their employees.  If they are successful they can recover their economic damages (such as lost pay), compensation for their emotional distress, the attorneys fees and litigation expenses they spent in the lawsuit, and sometimes punitive damages.  Of course, the employees must first prove that the employers violated the New Jersey Law Against Discrimination, and then they must prove their damages.

Proving that an employee had a disability is part of the employee’s required proofs.  In many cases there is no dispute because the disability is apparent – if an employee is missing a leg the disability is obvious, and in many cases the disability is admitted.  However, in many cases the disability is neither apparent nor admitted by the employer.  How then to prove that the employee had the disability?  In many cases, this requires testimony from a doctor.

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office-1319849__180The Corporation Business Tax (“CBT”) is a New Jersey State tax imposed on corporations for the privilege of doing business in the State.   Nearly every state has instituted a similar type of tax on businesses, sometimes including taxes referred to as franchise taxes or privilege taxes.  This tax is income-based and is measured by the net income which may be allocated to  New Jersey.  CBTs go towards general State use, with 4 percent of the CBT revenue dedicated to environmental projects and activities.

The following entities are exempt from CBT: corporations created under the limited-dividend housing corporation law, nonprofit cemetery corporations, nonprofit corporations without capital stock, federal corporations exempt from state taxes, certain agricultural cooperative associations, non-stock mutual housing corporations, canal and railroad corporations, water and sewer corporations, insurance companies subject to premiums tax, and certain municipal electric corporations.

A corporation may be either a “C” Corporation or a“S” Corporation.  Generally, a corporation chooses its election of classification when it is being formed.  A “C” corporation is subject to what is commonly referred to as “double taxation” because a C corporation’s revenue is taxed first as company revenue and then again when the shareholders are taxed for the revenue.  However, there are also certain tax advantages including being able to deduct certain business expenses.  On the other hand a “S” corporation is only taxed at the individual level, commonly referred to as a “pass-through” tax entity.  The owners of the company are the only ones taxed for profit of the company.  “S” corporation owners may be able to deduct corporate losses on personal tax returns.   There are also a myriad of considerations in addition to tax factors which should be considered before making the determination as to what type of company to form.

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frankfort-105591_960_720The Supreme Court of the United States has recently issued an opinion holding that, even perceived speech or associations (as opposed to just actual speech or associations) are protected by the Civil Rights Act.

A police officer, Jeffrey Heffernan, working in Paterson, New Jersey filed suit seeking redress for his demotion after he had been seen speaking to staff members for a candidate running for mayor and holding a yard sign supporting that candidate.  The candidate was running against the incumbent mayor who had appointed Heffernan’s superiors.  Heffernan was specifically demoted due to his “overt involvement” in the candidate’s campaign.

Unbeknownst to Heffernan’s superiors, Heffernan did not actually support the candidate, but was merely picking up the sign for his ill mother.

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pre-1272291__180New Jersey’s employment laws governing the rights and responsibilities of New Jersey teachers are found in Title 18A of New Jersey Statutes. The laws are complex, but our employment attorneys have significant experience in representing New Jersey teachers in this complex area.  Indeed, Maurice McLaughlin wrote the seminal treatise on the rights of public school teachers under New Jersey employment law.  This blog briefly summarizes untenured teachers’ rights.

Status of Non-Tenured Teachers

New Jersey is an “employment at will” state.  This means that normally an employee can be fired for any reason –even mistaken reasons – so long as the motivation is not illegal.  New Jersey’s tenure protection laws provide strong protections from the harshness of employment at will, but until teachers acquire tenure they have few protections against termination, even without cause.

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accounting-761599__180The Bulk Sales Act was enacted in 2007, expanding upon the prior bulk sales law previously codified in 1995.  This law requires the parties in a transaction to notify the New Jersey Division of Taxation regarding certain transfers of property so that the Division can determine if there are any outstanding tax liabilities which can be obtained as part of the sale of the property.

The bulk sales notice requirements generally apply to real property (land and/or buildings) which is owned by a business or which are income-producing.  For example, the following types of transactions are subject to Bulk Sales requirements: the sale of real estate used in any trade or business, full-time rental property, real estate owned by a business, transactions where a deed in lieu of foreclosure is being provided (where a lender is taking back income-producing, mortgaged property from a delinquent borrower), auction sales, and business assets such as patents, copyrights, equipment, leases, merchandise, or other inventory not being transferred in the normal course of business.  Generally, all transactions transferring business assets (other than in the regular course of business) are included.  A typical residential real estate transfer is not subject to Bulk Sales requirements.

When there is a Bulk Sales transfer, the buyer must advise the Division of Taxation of the scheduled transfer at least 10 days prior to the scheduled closing date with the submission of a C-9600 form.  The buyer completes this form because the buyer bears the risk of liability – meaning that if there are outstanding tax liabilities owed by the seller of the property, and no notice is provided to the Division regarding the sale, the buyer may become responsible for the amount owed.  As a result the Division of Taxation may institute a judgment or levy against the buyer’s property or seize the buyer’s assets.

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knowledge-1052011__180New Jersey’s Department of Education has issued regulations which govern “controversies and disputes” with public employees such teachers and principals.  The “controversies and disputes” cover a wide variety of issues including but not limited to the State Board of Examiner’s (“Board’s”) decision to block, revoke, or suspend a teacher’s certificate.

If you are faced with such a controversy or dispute or have been adversely affected by a  decision from the Board or other agency, these regulations provide a legal right to challenge the decision through a petition of appeal.  The petition of appeal must be filed in the specific format and must be filed within the time limitations provided under N.J.A.C. §6A:3-1.3(i).  Failing to strictly comply with these requirements may prevent you from challenging the Board’s or other agency’s decision or order.

The time period to file a petition of appeal begins from the date you receive a notice of “a final order, ruling or other action” by the Board, a board of education, or other agency.  The notice of the final decision must set forth the facts that you have a right to know which the decision is based on.  However, the notice may not be clear that the decision is final or provide you with information regarding your right to file a petition of appeal.  Therefore, it is extremely important that you address any notice of a decision that affects your employment promptly and seek legal counsel regarding your rights to appeal before they are time barred.

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capitol-22546__180Lawsuits can settle immediately after a complaint is filed or several years into the litigation process on the eve of trial, or even during the course of a trial.  Most cases will settle before a final resolution is determined by a judge or jury.  Settlements generally offer a more favorable resolution than trial for several reasons: (1) both parties avoid the risk of loss at trial, (2) both parties avoid the considerable costs, time, and efforts involved in further litigation and trial, and (3) both parties avoid protracted appeals.

Both parties in a suit seeking monetary damages should consider tax implications in agreeing upon a settlement.  This is true for defendants (the party who is being sued) and plaintiffs (the party who filed the lawsuit) since the defendant may need to make tax deductions prior to disbursement to the plaintiff and/or a plaintiff may need to include some types of settlement proceeds as taxable income.  Further, a defendant may need to issue a 1099 to the plaintiff along with the disbursement of settlement funds.   These determinations are highly fact-sensitive and every party should consult their own CPA or other tax professional who would be most familiar with each parties’ particular situation.

Generally, settlement money received for a personal physical injury is not taxable.  (There are exceptions, but this is the general rule.)  However, it is important to take into consideration that the settlement amounts may be subject to reimbursement to Medicaid/Medicare or medical insurance.  Indeed, the Social Security Act requires that Medicare payments be reimbursed by a subsequent lawsuit recovery, such as a settlement or award.

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37 Vreeland Ave
Totowa, NJ 07512
Phone: (973) 890-0004
Fax: (973) 256-3641

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