New Jersey Lawyers Blog

Published on: April 11, 2016

Taxability of Lawsuit Settlements

capitol-22546__180 Lawsuits 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.

Published on: March 31, 2016

ABLE Accounts Will be Available in New Jersey in October 2016

by Jennifer C. Meusel

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The New Jersey Achieving a Better Life Experience (ABLE) Act became law on January 11, 2016, it becomes effective on October of 2016. While due to its limitations it does not replace the special needs trust, it will be a cost effective way to assist individuals with disabilities.

Under the new Act the New Jersey’s Department of the Treasury and the New Jersey’s Department of Human Services must establish the ABLE Program pursuant to federal law. Under the program, individuals who became disabled before they attained the age 26 and who are also able to meet the disability requirements for Social Security disability benefits are permitted to establish an ABLE account, and they themselves can be the beneficiary of that account. The purpose of an ABLE account is to enable people with disabilities and their families to save and pay for disability-related expenses.

An ABLE account is not subject to state income tax, and it will not be considered to determine the beneficiary’s eligibility for need-based public benefit programs or to determine the level of any benefit provided under such a program. However, a disabled individual can only have one ABLE account established for their benefit.

Published on: March 16, 2016

Our New Jersey Employment Attorneys Represent Teachers and Other School Employee in Tenure Charges

by McLaughlin & Nardi, LLC

Fighting Tenure Charges Against New Jersey Teachers

Our New Jersey employment attorneys represent teachers and other school employees in tenure charges, wrongful discharge, harassment and other wrongful treatment.

In 2012, the TEACHNJ Act, pushed through the Legislature by Governor Christie, made major changes to New Jersey’s tenure laws. Among other changes, it revamped the appeal process for New Jersey tenure charges. Instead of having New Jersey Department of Education make the final determination of tenure charges after a fact-finding trial by an administrative law judge, appeals of tenure charges are now decided by binding arbitration. Because of the finality of these arbitration decisions, and the limited grounds for appeal, it is important to have experienced New Jersey employment attorneys representing you.

Published on: March 8, 2016

What Happens If You Die Without A Will?

by Jennifer C. Meusel

This is called dying intestate and if you die without a Last Will and Testament as a resident of the the State of New Jersey your estate will be distributed according to the New Jersey laws of intestacy. hand-229777__180 Since there is no will to probate, your nearest living relative who is willing to do so will need to be appointed as administrator of your estate by the surrogate’s court.

However, not all of your assets will be distributed through the process of estate administration. There are many assets which, through contract law, pass automatically to a designated beneficiary. Examples of assets that pass automatically are:

Real estate owned with another person as joint tenants

Published on: February 22, 2016

Representing Homeowners in Defending Construction Lien Claims

by McLaughlin & Nardi, LLC

Representing Homeowners in Defending Construction Lien Claims

Our New Jersey construction attorneys represent homeowners who, through no fault of their own, have construction liens (called “mechanics liens” in years past) filed against their property.

Typical Scenarios Where Homeowners Get it Trouble

Published on: February 19, 2016

The Regulation of Solid Waste Transportation

by Pauline M.K. Young

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Virtually every business in New Jersey is regulated in some way, shape, or form. Accounting firms are regulated by the Department of Law & Public Safety and regulations require accounting firms to have certified public accountants. Home improvement contractors are often required to be registered with the Department of Labor and Department of Treasury. Health clubs are required to register and issue a security bond with the Department of Law and Public Safety. Restaurants are regulated by local health departments. However, businesses which involve the transportation, storage, or disposal of solid waste are some of the most regulated and highly scrutinized businesses in the State of New Jersey.

Solid waste haulers or transporters are regulated by the New Jersey Department of Environmental Protection (“NJDEP”), Division of Solid Waste Management and/or the Division of Solid & Hazardous Waste Management.

However, first, for tax and liability purposes, a business will generally form a company or business entity (such as a corporation or limited liability company). In doing this, the company will likely file for a Certificate of Formation and a request a FEIN (or Federal Employer Identification Number).

Published on: February 16, 2016

McLaughlin & Nardi, LLC Attorneys Recover $289,918 For Homeowners in Construction Arbitration

by McLaughlin & Nardi, LLC

McLaughlin & Nardi’s New Jersey construction attorneys recently completed a construction arbitration in the American Arbitration Association. After hearing the evidence, the arbitrator awarded our clients $289,918. Maurice McLaughlin was the lead trial attorney. He was assisted throughout by Pauline Young and Robert Chewning, who second chaired the hearings.

Background

The case involved Essex County homeowners who had contracted for extensive renovations to their kitchen. The total cost of the kitchen renovations was $152,725. The homeowners paid $126,362.50. However, the contractor never completed the job.

Published on: December 11, 2015

New Jersey Durable Power of Attorney

by Jennifer C. Meusel

The general durable power of attorney is an important and powerful document. New Jersey law, N.J.S.A. 46:2B8-1, et seq., provides this mechanism so that you may appoint another to handle your affairs. A durable power of attorney is effective during the lifetime of the person who signs it (the “principal”). Its purpose is to appoint another person (or multiple people) who can stand in the shoes of the principal and act on their behalf. The designated person is referred to as the “agent”.

In a general durable power of attorney the principal designates one or more people to act on the principal’s behalf. If the principal appoints more than one persons, he can require that the designated agents must act together, or structure the power so that each person can act alone without the knowledge or consent of the co-agent. Appointing two agents who can act individually can however have drawbacks. If both do not agree on a proposed course of action, it can lead not only to discord and infighting, but to litigation. If one agent feels it is in the principal’s best interest to sell his home, but the co-agent disagrees, the co-agent might bring an action in court to block the sale. The situation would be more difficult if one of the agents had signed a contract for sale with a buyer, as now, the buyer may join the litigation to force the sale. If the agents were required to act jointly they would be forced to come to an agreement before third parties and/or the courts were involved. Finally, it is always recommended that the principal name a successor agent who can act if the first named agent is unwilling or unable to do so.

The most difficult decision the principal has is deciding who to name as agent. Since the agent under a power of attorney must handle the financial affairs of the principal, it is important to choose someone who is organized, responsible and financially savvy. Obviously, it should be a person the principal trusts implicitly. The principal should speak with the proposed agent prior to the appointment to ensure that the person would be willing to take on the responsibilities if it becomes necessary.

However, it is important to make this difficult decision and execute a power of attorney because without one there is no one who can make financial decisions for person once they are no longer capable of handling their own affairs. Unless appointed by a power of attorney, even a spouse does not have the power to handle her spouse’s affairs. For example a spouse cannot access IRA or 401K accounts, cannot mortgage or sell real estate and cannot speak to social security or the motor vehicle commission. Once a person is incapacitated and no longer able to handle their own affairs, they in all likelihood no longer have the capacity to execute a general durable power of attorney. At that point, the only option is to have a guardian appointed for the incapacitated individual. To appoint a guardian, a court action is required which, even if it is uncontested takes considerable time and expense.
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Published on: November 12, 2015

Counting “Replacement” Time Toward Acquisition of Tenure

by Maurice W. McLaughlin

McLaughlin & Nardi, LLC’s employment attorneys represent teachers in all aspect of employment law. One of the most important areas of New Jersey employment law to teachers is the requirements for acquiring tenure.

Under the TEACHNJ ACT of 2012, acquisition of tenure went from three years to four years. There are several ways to meet this requirement. First, a teacher can work in her position for four full consecutive calendar years. Second, the teacher can serve for four consecutive school years, and begin employment in the following year; the common way this is expressed is “four school years plus a day.” Third, a teacher can attain tenure if her total time worked equals greater than four school years within any five consecutive school years. This final method allows a teacher to take time off to care for a baby without having to re start her tenure clock from day one.

However, there is an exception that provides that certain “time” does not count. New Jersey’s education laws provides that someone who is replacing another employee while that employee is out on a leave of absence, or period of disability or disqualification – a frequent example being a teacher who is hired to replace another teacher out on maternity leave – cannot use that replacement time to count for the acquisition of tenure. This is relatively straightforward in the case, for example, of someone who comes in to replaces a teacher who is out on maternity leave, and then loses her job when the first teacher returns. However, what about someone who is hired to replace a teacher on maternity leave, but then gets another teacher position and stays when mom returns to work? Can she count her original time because she is a permanent employee and her time was continuous, even if the initial time was served as a replacement? This is a far more difficult question for which until recently the courts had not spoken.

However, recently the Supreme Court of New Jersey finally addressed this question straight on. In that case, three teachers were let go by the Bridgewater Board of Education. If the time the spent as replacements for other teachers out on leave, they would have tenure. However, the Board of Education argued that this time should not count under the “replacement” exception to counting time for tenure. The teachers, obviously, argued that since they had been working straight for more than the time required for tenure, it should count. Two had received some form of notice that the time would not count, one did not.
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Published on: October 27, 2015

The Use of New Jersey’s Rule of Three in Civil Service Hiring and Promotion

by Maurice W. McLaughlin

McLaughlin & Nardi, LLC’s employment attorneys represent New Jersey civil servants and other public employees.

One of the most vexing issues in New Jersey employment law in the public sector is the “Rule of Three.” New Jersey’s Civil Service laws require that hiring and promotion be based on merit and demonstrated ability, where possible through an examination. After an application is complete, an “eligible list” is promulgated with all of the applicants listed in order of their overall scores. Hiring and promotion must be done in order of rank of their overall scores.

However, New Jersey’s Rule of Three allows the appointing authority to hire or promote from any one of the top three slots for the position, allowing it to skip a higher ranked candidate. This allows the hiring authority a limited degree of discretion in hiring. However, to avoid bias, discrimination, cronyism, nepotism and favoritism, the appointing authority must give a written statement of its “legitimate” reasons.

In the recent case of In re Foglio, New Jersey’s Supreme Court rejected Ocean City’s use of the Rule of Three when it was hiring firefighters. Nicholas R. Foglio, who had been a volunteer fighter, took the civil service test to become a paid firefighter and went through the application process. He was ranked second on the eligibility list. Ocean City hired three new firefighters. It chose the highest ranked firefighter, but skipped Foglio to hire the next two known ranked candidates. Foglio had been a volunteer firefighter for several departments. He had already logged more than a thousand hours. The highest ranked candidate was a student teacher; the third, for whom Foglio was skipped, was a bartender; and the fourth, for whom Foglio was also passed over, was a lifeguard. Ocean City stated that its reason for invoking the Rule of Three to pass over Foglio was that the two lower ranked candidates “best meet[] the needs of Department,” without any further elaboration. The Supreme Court explained that while the applicant still bore the burden of showing that the appointing authority’s reasons are not legitimate, but that burden is only triggered after the appointing authority gives an adequate – and real – statement of reasons for the action. when exercising his right to challenge the appointing authority’s exercise of the Rule of Three, he can’t reasonably be expected to do so without a detailed statement of reasons. The Court explained that while the statement of reasons not need be detailed, it had to give fair notice of the reasons. It could not just give a conclusory and unrevealing statement. As the Court explained, Ocean City could just have said “we liked them better” and it would essentially been the same thing without a statement giving notice of actual, legitimate reasons. The Court held that the appointment of the lower ranked candidate is “presumptively in violation of the principles of merit and fitness.” Thus, while the applicant bears the burden of showing that the appointing authority’s reasons are not legitimate, that burden is only triggered after the appointing authority gives an adequate – and real – statement of reasons for the action. The Court therefore remanded the case. It ordered Ocean City to provide a statement of reasons, which Foglio could then appeal. In re Foglio, 207 N.J. 38, 45-46 (2011).
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