New Jersey Lawyers Blog

Published on: November 8, 2013

Suing the Government or Its Employees in New Jersey

Historically and as a matter of public policy, public entities are immune from suit pursuant to the doctrine of “sovereign immunity.” The New Jersey Tort Claims Act, however, creates limited exceptions to sovereign immunity. People are therefore permitted to sue for injuries but must comply with the strict requirements of the Tort Claim Act.

New Jersey’s Tort Claims Act requires that persons who have claims against a governmental entity or its employee notify the public entity within ninety days from the date the claim accrues. The notice must contain the name and address of the claimant, the date, place and circumstances of the occurrence, a general description of the injury, the damage or loss sustained, and the name of the public entity or the employees responsible. Each municipality may have its own tort claim notice form. Failure to provide notice is an absolute bar to later recovery against a governmental unit or its employees. It is therefore critical to ensure compliance with the notice provisions of the Tort Claim Act.

After notice of tort claim is submitted, the government is then permitted a six month review the claim before a lawsuit can be filed. A lawsuit can be filed upon the expiration of the six month period. However, not every injury gives rise to a cause of action that requires providing the municipality with notice and then waiting six months. For example, the Tort Claims Act does not apply to statutory claims such as those brought under New Jersey’s Conscientious Employee Protection Act and New Jersey’s Law Against Discrimination. However, because the Tort Claims Act will bar a covered but late claim, it is better to comply now than find out later you were wrong.

Published on: November 6, 2013

Revocation and Suspension of Teachers’ Certifications

by Pauline M.K. Young

Because of the high level of public concern over New Jersey’s children, teaching is a highly regulated and scrutinized industry. Not only are teachers required to meet significantly high standards of education and training, and, in most cases, to have specialized knowledge in their field, but they must also maintain a level of behavior and continued education to maintain their teaching certificates.

If a school board terminates a teacher, or otherwise refuses to renew a teacher’s contract, that school board is required, in some circumstances, to alert the New Jersey State Board of Examiners of discontinuation of employment. For instance, a school district is required to report a discontinuation of a teacher’s employment – even if that is due to the teacher’s resignation or retirement – if the teacher is accused of a criminal offense or “unbecoming conduct.”

The Board of Examiners is the state licensing agency which reviews and monitors teachers. IT has the power to bestow, deny, suspend, or revoke a teacher’s license. The Board of Examiners may revoke or suspend a teacher’s certificate if the teacher demonstrates inefficiency, incapacity, conduct unbecoming a teacher or for any other just cause – such as being convicted of a crime. However, the Board of Examiners cannot revoke or suspend a New Jersey teacher’s certificate unless it gives the teacher notice and the opportunity to be heard.
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Published on: October 28, 2013

New Jersey’s Administrative Law Courts

by Boris Peyner

As our society has grown more complex, the government has been forced to take on more responsibilities. It created administrative agencies in the executive department, including for example, the Department of Environmental Protection, the Board of Public Utilities, the Merit System Board, the Department of Community Affairs, the Casino Control Commission, and Health and Senior Services. These agencies regulate in their respective areas, investigate and prosecute violations, and make decisions and issue penalties. These agencies are known as the “fourth branch” because they combine the functions of all three government branches.

The New Jersey Office of Administrative Law (“OAL”) is an independent state agency that provides independent and neutral hearings over these agency’s actions and rulemaking procedures. Administrative Law Judges (“ALJs”) hold trials to determine facts and make recommended decisions when individuals dispute agency actions. The agency itself then makes final decisions based on the ALJ’s opinion, which can be appealed to the Appellate Division of New Jersey’s Superior Court, and then to the New Jersey Supreme Court.

What To Expect At An OAL Hearing

A request for a hearing should be sent to the appropriate state agency making a decision. That agency will then send the case to the OAL for a hearing. In “contested cases” an ALJ will be assigned, and hold a trial. The ALJ makes a recommended decision which it sends to the agency that sent the case to the OAL. The head of that agency will review the opinion and has the right to adopt, reject, or modify the opinion. That agency’s head is the final decision maker. An appeal of the final decision is available to the Appellate Division of the Superior Court within forty-five days of the date of the final decision.

Notice of Filing

When a case is sent to the OAL a Notice of Filing or a Notice of Filing and Hearing is mailed to all the parties. The notice will identify the agency that sent the request and will generally contain information that can help a party prepare for a hearing, including the issues that will be discussed at the hearing.
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Published on: October 25, 2013

New Jersey’s Security and Financial Empowerment Act

by Pauline M.K. Young

New Jersey has recently enacted the Security and Financial Empowerment Act (“SAFE Act“). This law requires many public and private employers to allow employees to take an unpaid leave of absence up to 20 days in any 12-month period if that employee or someone in the employee’s immediate family (child, parent, or spouse) is a victim of domestic violence or a sexually violent offense.

The leave must be taken for the purposes of seeking medical attention or recovering from physical or psychological injuries, obtaining services from a victim services organization, obtaining counseling, participating in safety planning or relocation, or seeking legal assistance or other legal remedies as a result of sexual or domestic violence.

Each incident of domestic violence or a sexually violent offense is considered separate, each providing for up to 20 days of leave. Leave may be taken intermittently, as opposed to all together, but must be taken in full days. Therefore, if the person taking leave only needs to be out of work from 2-5p.m. on Monday and Thursday, she may take leave on both Monday and Thursday, but one full day of the leave will be credited, even if she is only gone one half day (she must, of course, be paid for the time she worked).

Although the employer is only required to grant unpaid leave, an employee may elect or an employer may require that the employee use paid vacation, sick, or personal time for all or part of the leave.
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Published on: October 23, 2013

New Jersey Name Changes

by Jennifer C. Meusel

Individuals are permitted to change their names as long as they have a permissible reason to do so. Obviously, a name change will not be approved if the purpose or effect of the change is fraudulent, such as avoiding creditors or criminal proceedings. The court can also deny an application for a name change if the reason for the change is “frivolous.”

In order to change your name in New Jersey, you must prepare and file a complaint in the Superior Court of New Jersey. You must certify that the information contained in the complaint is true to the best of your knowledge. The complaint must include: the reason for the name change, your current name, your marital status, that you are not attempting to avoid creditors or criminal prosecution, your citizenship status, the place and date of your birth, and your parents’ names. There is a $200 filing fee which must be paid when the complaint is filed with the court.

After the complaint to change your name and related documents are filed with the Superior Court of New Jersey, the judge will issue an order with a hearing date. You must appear before the judge and ask for your name to be changed. In the order issued by the judge, you will be required to publish the hearing date in a newspaper and present an affidavit of publication to the court. Then, if you properly complied with the notice requirements and the judge is satisfied with the reason for your request, the information you provided and that you are not seeking a name change for a fraudulent purpose, the judge will issue a final judgment changing your name.

If you have pending criminal charges against you, you may still seek a name change. However, you must first notify the prosecutor by sending a copy of the verified complaint and order fixing the date of hearing by certified mail to either the prosecutor of the county where the matter is pending, or to the director of criminal justice in Trenton if the charges were brought against you by the office of the New Jersey attorney general.
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Published on: October 21, 2013

Defamation on the Internet: Accommodating the Growth of Social Media

by Pauline M.K. Young

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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