New Jersey Lawyers Blog

Published on: October 21, 2013

Defamation on the Internet: Accommodating the Growth of Social Media

A person may be a victim of defamation when another person has said something false about her. Defamation is a generic term for libel (a defamatory statement that is written) and slander (a defamatory statement which is spoken). The statement cannot be a joke or an expression of opinion; it must be something that is capable of being proven true or false, and which is actually false. Further, the statement must actually be harmful to the victim’s reputation or have caused monetary losses. In most cases, the victim must be able to identify and quantify her actual damages, hurt feelings are often insufficient.

In order to be considered defamation, one person or entity must make false factual statements about another and communicate (or “publish”) those statements to a third party. The statement cannot be a joke or an expression of opinion; it must be something that is capable of being proven true or false, and it must actually be false. When the statement involves public figures or issues of public concern – such as with political candidates – in order to protect the open debate and discussion regarding these public figures, there must also be some malicious intent and affirmative knowledge that the statement is false.
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Published on: October 16, 2013

A New Jersey Criminal Law Gives Offenders a Second Chance

by Boris Peyner

Governor Chris Christie signed a new legislation, Bill A-2598/S-2588, establishing a diversionary program for “minor” offenders in New Jersey municipal court matters. This law will take effect in January 2014 allowing conditional dismissal of disorderly persons (criminal offenses with sentences of less than six months) and petty disorderly persons (criminal offenses with sentences of less than 30 days) offenses for eligible defendants in certain circumstances. This law will operate similarly to the pretrial intervention program offered in the Superior Court.

The new law will allow eligible participants to enter into a one year probationary program and pay restitution, court costs, fines, and any other mandatory or discretionary assessments. Defendants will then be required to either plead guilty in New Jersey Municipal Court or there must be a finding of guilt to enter into the program. Entry into the program, however, will be before the entry of a conviction. The successful completion of the program will result in the dismissal of the criminal charges. Completion of the program will not be deemed a conviction for the purpose of any future prosecution. So in essence, the conviction is with wiped away when the defendants successfully completes the program.

People seeking entry into this program must have a clean criminal history. The program will apply to most, but not all criminal offenses tried in New Jersey municipal court, including disorderly conduct, simple assault, harassment, criminal trespass, underage gambling offenses, shoplifting, underage alcohol possession or use, and obstruction of justice. Individuals charged with gang activity, official breach of public trust, domestic violence, intoxicated driving, animal cruelty, and offenses against the elderly, disabled or minors are not eligible for this program. Courts must also consider eligibility factors such as the nature of the offense, a defendant’s background, and the victim’s wishes before entry into the program is permitted.

Individuals charged with a criminal offense who are eligible for this program may only be permitted into the program once. Similarly, prior participation in another diversionary program renders people ineligible for this program.

Those permitted entry into the program must pay a seventy-five dollar fee. Other fees and assessments may be waived or payment plans may be implemented at the discretion of the municipal court judge.
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Published on: October 14, 2013

Alternative Dispute Resolution

by Pauline M.K. Young

In years past, when parties had a dispute, they resolved it by filing a lawsuit. In the last decade, however, parties – and New Jersey’s courts – have increasingly resorted to alternative dispute resolution (often called “ADR”) instead of lawsuits. There are two main types of ADR, arbitration and mediation.

In arbitration, the parties agree that one or more neutral persons, known as “arbitrators,” will hear testimony, review evidence, and make a final decision which the courts will enforce as binding upon the parties. There is a limited amount of discovery of evidence in arbitrations, so the process is faster and generally less complex.

With limited exceptions, there is no opportunity for appeal and the arbitrator’s decision is final. Parties to arbitration give up certain rights, such as the right to a jury trial or to appeal the arbitrator’s decision. Because arbitration is faster, less complex, and results in a final decision, it can be significantly less expensive in the long run. However, that is not to say that arbitration is necessarily a “cheap” process.
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Published on: October 11, 2013

The Pitfalls of “Do It Yourself” Estate Planning

by Jennifer C. Meusel

The American Bar Association Task Force on Real Property Probate and Trust Law issued a report discussing the following shortcomings of drafting your own estate planning documents using the services of a “Do It Yourself” package. Some of those short comings are as follows.

Things are often more complicated than they seem. When a person writes their own will, often the results are not what she intended. For example, an elderly widow wants to divide her assets equally between her two adult children. Her assets consist or a house worth $500,000 and an IRA worth $500,000. She decides to write her own will giving one child the house and the other the IRA. Then after her death, it comes to light that the IRA, which has designated beneficiaries, is to be shared equally by her two children. Moreover, at the time of her death, her IRA is valued at $200,000 and the value of the house has appreciated to $600,000. So, one child receives the house and $100,000 from the IRA house, a total value of $700,000 and the second child receives $100,000 from the IRA. This was not what she intended. Having an experienced estate planning lawyer can help prevent this.
An estate planning lawyer offers more than the expertise in drafting your documents. A significant role of an estate planning lawyers is to counsel clients when making these important and personal decisions, for example, guidance on whom to choose as a guardian for minor children. While this may seem simple, it is complex decision on who is best suited to nurture children, but consideration must also be given the ability to provide financial support. Moreover, when a couple makes decisions, it may be important to have an attorney help the couple chose guardians who are acceptable to both parties.
In the event of a dispute after a person’s death, the court will often hear a wide variety of allegations about the decedent’s intentions – all from family members who have an interest in how the court will decide. This is a difficult role for a judge who will look to hear from a person who had discussion with the decedent while she was alive about how she wanted her assets to be distributed. Often, that person is the estate planning lawyer.
Technical issues with your will can render it void. A will must unequivocally state the decedent’s intentions. If you draft your own will, you might inadvertently use words which are meaningless in the probate court. For example, if you state “I would like my niece to have my car” would be an unenforceable provision. Moreover, the will must be executed in accordance with New Jersey probate and estate law in order to be admitted to probate and enforced.

Published on: October 9, 2013

New Jersey Disability Discrimination

by Maurice W. McLaughlin

Almost 29 million people over 16 years old had a disability. Of these,
approximately 6,000,000, or 21 per cent, were in the labor force, compared with almost 150,000,000 million people without a disability, for a 68 per cent participation rate.

Discrimination is prohibited under both New Jersey’s Law Against Discrimination (the LAD), and the federal Americans With Disabilities Act (the “ADA”. New Jersey’s Law Against Discrimination considers a wide range of conditions to be “disabilities,” thus providing a far more extensive scope of coverage than the Americans With Disabilities Act. New Jersey’s courts have expressly ruled that a disability does not need to be severe. Examples demonstrating this wide scope of coverage include court rulings that the following are protected disabilities: obesity; alcoholism; heart attacks; back ailments; varicose veins; cancer; removal of the kidneys, adrenal glands, lymph nodes and ribs; mastectomies; coronary bypass surgery; alcoholism and other substance abuse; gender dysphoria; transsexualism; and shoulder and arm injuries.
Indeed even perceived handicaps are protected.

Disability discrimination in any manner is prohibited under both acts. However, disability discrimination generally falls into three areas – direct adverse termination actions, harassment, and failure to accommodate.

Adverse employment action discrimination is straightforward. An employer may not fire, fail to promote, pay less, or in any other way treat a disabled employee differently than an able-bodied employee solely because of her disability, provided the employee can perform her job with “reasonable accommodation.”

Second, an employer may not harass an employee because of her disability to the point of creating a severe or pervasive hostile work environment. Examples of harassment include name calling, offensive remarks about the employee’s disability, public (in front of co-workers or customers, etc.) criticism or yelling, inconsistent treatment (for example, giving a work schedule which is more inconvenient that those given to non-disabled employees, or denying training opportunities), intentional exclusion from critical work meetings or social functions; displaying offensive materials at work; unfair or disparate denial of vacation; threats of discipline or firing; and physical violence or intimidation.
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Published on: October 7, 2013

The New Jersey Smoke Free Air Act

by Boris Peyner

New Jersey passed the Smoke Free Air Act in 2006. The Act is part of New Jersey’s effort to eliminate tobacco use because it is a significant public health threat. The United States Surgeon General has declared that secondhand smoke is a serious health hazard that leads to premature death in children and non-smoking adults.
The Smoke Free Air Act serve an important public purpose: Banning smoking in indoor “workplaces” and “public access” places. The Act ensures that people have same smoke-free workplaces and citizens can breathe smoke-free air in public places. Almost every place outside the home is affected, except for registered cigar bars.

In New Jersey, smoking is banned in places such as offices, restaurants, factories, bowling alleys, stores, malls, hotels (twenty percent of the rooms may be used for smoking), and private clubs. It is banned outside grammar schools and high schools. Smoking is also prohibited in workplaces and within twenty-five feet of a workplace. A “workplace” includes any area where some type of service or labor is performed, regardless of how much time workers spend working. “Workplace” also includes locations were volunteer work is performed. The Act applies to smoke break areas outside of the building, including outdoor patios and decks that are attached to a building

Recently an amendment was passed which bans the use of an electronic smoking device (i.e., “e-cigarette”) in indoor public places and workplaces. New Jersey is the first state to pass the “e-cigarette” law.
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Published on: October 4, 2013

New Jersey Home Warranty Program

by Boris Peyner

New Jersey provides new home owners with a warranty under New Jersey’s New Home Warranty and Builders’ Registration Act (“HOW”). The Act provides that newly constructed homes must conform to certain construction and quality standards and provide buyer of the new home with insurance-backed warranty protection in the event any of the standards are not met. Simply put, the Act provides that every new home sold in New Jersey comes with a warranty.

Builders of new homes must register with the New Jersey Department of Consumer Affairs to be permitted to engage in the business of building new homes. Builders are then required to provide a three-tiered warranty program which provides coverage and protection against defects.

Warranty coverage extends to defects caused by faulty workmanship and defective materials during the first year of ownership. The one year begins to run on either the first day of occupation or the settlement date, whichever is sooner. Additionally, during the first two years new home owners have a warranty that covers defects caused by faulty installation of heating, electrical, plumbing, and cooling systems. The Act, however, does not extend the coverage to appliances beyond the warranty provided by the manufacturer. Finally, the Act provides for warranty coverage to major construction defects of the home for ten years.

At first glance the Act appears to provide homeowners a cost-savings means of resolving disputes concerning construction defects. However, in reality the Act makes it difficult for homeowners to resolve construction defects. For example, “major construction” defects have been interpreted by the courts very stringently. Generally, the act affords no protection unless the new home is practically collapsing. Additionally, common problems such as leaks, mold, and excessive settling are not covered.
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Published on: October 2, 2013

Joint Bank Accounts in New Jersey

by Jennifer C. Meusel

It is a fairly common practice for people to open joint bank accounts. Often joint accounts are held by spouses, and the funds do actually belong to both individuals. However, sometimes these accounts are opened for the convenience of allowing a child or to access funds and write checks to pay bills, or as a way to have ownership of the funds pass to the surviving joint account holder upon death. While this is an effective and simple way to give someone else control of your assets of have the funds pass to another upon death, there are problems associated with joint accounts which should be considered before opening a joint account.

1) The joint account holder has unfettered access to the funds in the account. There is no oversight over the way the funds are used. Both joint account holders can utilize the funds for any reason; there is no need for permission – either account holder can withdraw of any portion or all of the money in the account for any purpose.

2) A joint bank account is at risk from legal actions by the creditors of either account holder. If the joint account holder has a judgment entered against her, all the funds in the joint bank account can be attached and used to pay the judgment. For example, a one account holder gets divorced and his spouse claims a right to some of the funds in the account, then the account holder who deposited the funds in the joint account would need to go to court to prove that the money does not belong to the divorcing account holder. Another example is if the other joint account holder is sued, loses and does not pay the resulting judgment.

3) Upon the death of either account holder, the money would indeed pass to the surviving joint account holder. However, the money remains subject to estate and inheritance taxes. If the individual who passes is not the individual who contributed the funds to the account, the account would nonetheless be taxed as part of the deceased account holder’s estate. In other words, the survivor would have to pay inheritance tax even if she deposited the funds in the first place. Depending on the amount of assets in the account, the relationship between the two joint account holders, and the value of the decedent’s total estate, this can result in a significant death tax burden which could have been avoided.
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Published on: September 27, 2013

Minimum Wage & Overtime in Employment Law

by Pauline M.K. Young

The minimum wage in New Jersey is $7.25 per hour. New Jersey law requires that all “non-exempt” private sector employees must receive “overtime” pay – one and a half times their normal hourly rate – for all time worked in any given week in excess of forty hours.

While New Jersey, like all states, has the option of providing a higher minimum wage, New Jersey’s current minimum only just meets the federal requirement of a $7.25 per hour minimum wage, which went into effect July 24, 2009.

Exempt employees are those who work in executive, administrative, or professional capacities. In any of these categories, the employee must made at least $455 per week to be exempt from overtime requirements.
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Published on: September 24, 2013

Fair Credit Reporting Act

by Boris Peyner

The health, stability, and strength of a nation’s economy is directly linked to its banking system. The health, stability, and strength of a nation’s banking system is directly related to a fair and accurate credit reporting system. Congress realized how damaging inaccurate credit reports can directly impair the efficiency of the banking system and therefore passed the Fair Credit Reporting Act (“FCRA”) in 1970. This provides strong protection for New Jersey residents in financial difficulty.

The Fair Credit Reporting Act was enacted to eliminate abusive debt collection practices that contributed to personal bankruptcies, martial instability, loss of jobs, and invasions of an individual’s privacy. The Act’s purpose is to ensure fair debt collection.

The Fair Credit Reporting Act prohibits debt collectors from communicating with a debtor, in connection with a debt, if the debt collector knows the consumer is represented by an attorney. The FDCPA specifically prohibits debt collectors from engaging in any harassing, oppressive, or abuse conduct in connection with debt collection. For example, repeatedly calling a person with the intent to annoy, abuse, or harass that person has been found to violate the act.

The act also prohibits debt collectors from using any false, deceptive, or misleading representation to collect a debt. For example, a misrepresentation of the legal status of the debt or use of any false representation to collect the debt is a violation of the FDCPA.
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