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257897_whistle1.JPGNew Jersey’s Conscientious Employee Protection Act (“CEPA”) is New Jersey’s whistleblower protection law. CEPA provides perhaps the broadest and strongest legal protections in the country against whistleblower retaliation. However, it does not protect against all employee complaints that an employer is doing something it shouldn’t. In the recent case of Powell v. Wachovia Corporation, the Appellate Division of New Jersey’s Superior Court once again defined the outer limits of what objections are protected.

CEPA: New Jersey’s Conscientious Employee Protection Act, the “Whistleblower Law.”

Among other things, CEPA prohibits employers from retaliating against employees who object to or refuse to participate in an employer activity, policy or practice which they reasonably believe violates a law, regulation or public policy, or which is criminal or fraudulent.

Examples of objections which New Jersey courts have found to be protected be protected under CEPA include:

  • New Jersey’s Supreme Court held that complaints about inadequate ventilation in a school shop affecting health and safety outlined in a guide incorporating regulations constituted clear mandate of public policy.
  • New Jersey’s Supreme Court found that objections that police selectively refused to enforce laws regarding sex-industry was complaint of violation of law affecting public welfare.
  • The Appellate Division held that objections to adoption of dog which had previously been violent impacted clear mandate of public policy to protect public from vicious dogs.
  • The Appellate Division found that a grammar school custodian objecting to unsanitary conditions in a student lavatory constituted objection regarding clear mandate of public policy.

What Happened Between Powell and His Employer, Wachovia

James Powell was a “benefits producer” for several insurance companies which were eventually acquired by Wachovia. As a benefits producer, Powell’s job was to market, sell and place insurance policies provided by companies as employee benefits. Powell was an “at-will” employee. However, he and his fellow benefits producers at Wachovia’s Wayne, New Jersey, were compensated under a contract from 1993 which had long ago expired. Under this scheme, they were paid fifty per cent of the revenue they generated.
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A New Jersey bankruptcy can be a helpful solution for a person struggling with debt. A New Jersey debtor can file for Chapter 7 liquidation or Chapter 13 reorganization. Each has its own benefits. Both provide relief to New Jersey debtors by wiping out their debts, thereby providing bankruptcy’s “fresh start.”

Chapter 7 Benefits

In New Jersey a Chapter 7 liquidation is relatively quick. Most people can get a discharge several months after filing for bankruptcy protection. This means that upon the completion of a Chapter 7 bankruptcy the court will order that debts are discharged and an individual can have a “fresh start.”

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If you or a family member are injured in an automobile accident, it is important to contact an experienced New Jersey personal injury attorney to protect your rights to allow you to bring claims for compensation.

Under New Jersey automobile insurance laws, everyone who drives in New Jersey must have automobile insurance. Insurance companies are responsible to have an attorney defend a driver accused of negligence and pay any judgment or settlement. This means that the insurance company has to appoint and pay for a lawyer to defend the negligent driver and subsequently pay any settlement or judgment up to the policy limits. Typically the insurance company will try to delay and avoid and paying any claims. Even if the insurance company agrees to pay a claim it will try to pay as little as possible. It is therefore critical to speak to an experienced New Jersey personal injury attorney to ensure that your rights are protected.

If you have been involved in an accident you should not speak with the other driver’s insurance company until you have had an opportunity to speak with an experienced New Jersey personal injury attorney. The insurance company will be gathering as much evidence as it can get to use against you in court to avoid or reduce making a payment. After the insurance company learns about an accident it will attempt to contact you to obtain information. The insurance company will do this by sending you letters and calling. This can be overwhelming, especially if you have just been involved in an accident. This is yet another reason to seek representation by an experienced New Jersey personal injury attorney. Experienced attorneys can help preserve evidence by, for example, contacting witnesses and working with the insurance company to provide only the necessary information.

It is also important to seek necessary medical treatment and keep a list of all the medical providers from whom you have sought treatment after the accident. But don’t worry; New Jersey is a “no fault” state. This means that the medical bills for injuries you sustained in an automobile accident are paid by your own insurance company under what is known as “Personal Injury Protection” (“PIP”). Therefore, if you have auto insurance it is important that you advise your own automobile insurance company if you have been in an accident. You should also advise your medical provider that you were involved in an automobile accident when seeking treatment. The medical provider should submit the bill to PIP for payment.
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In 1978 Congress passed the Fair Debt Collection Practices Act (FDCPA) in an effort to eliminate the abusive tactics used by unscrupulous consumer debt collectors. The Act also provides consumer debtors with a procedure for which they may dispute and obtain verification of the debt. New Jersey business owners need to be aware of its requirements.

The FDCPA applies only to consumer debt, which means that the debt was incurred primarily for personal, household, or family purposes, rather than commercial purposes. Therefore, collections against a corporation are not governed by the provisions of the FDCPA. Further, the FDCPA only restricts the conduct of “debt collectors” which includes only third-party collectors who regularly collect the debts of another, and does not include original creditors. Sheriffs are also not considered debt collectors. This means a New Jersey business owner trying to collect its own debt need not comply.

One question that is often raised is what constitutes “regularly” collecting the debts of another. There is no black and white answer and the courts have refused to set forth a hard and fast rule on the matter. For instance, in one case, the court found that a firm was a debt collector when four percent of its business was dedicated to debt collection, while in another case the court found that the firm was not a debt collector when six percent of its business was comprised of debt collection, partly because that six percent was met by a single case. It is ultimately determined on a case-by-case inquiry.
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New Jersey employment law is a comprehensive system which provides some of the strongest protections in the nation for New Jersey employees. New Jersey employees are protected against discrimination and whistle-blowing retaliation. New Jersey employment law provides for leave of absence for childbirth, adoption of a child, or serious health conditions. New Jersey has its own wage and hour laws that regulate minimum wage and overtime pay for New Jersey employees.

New Jersey’s Law Against Discrimination

The New Jersey Law Against Discrimination (the “LAD”) applies to all employers. The LAD prohibits discrimination or harassment in employment for a prohibited reason, including race, religion, color, gender, national origin, nationality, ancestry, age, marriage status, domestic partnership or civil union status, sexual orientation, identity, and disability. The list of protected job-related activities is expansive and includes recruitment, interviewing, hiring, promotions, discharge, compensation, and any term, condition or privilege of employment.

The LAD prohibits both intentional and inadvertent discrimination because of a discriminatory animus or bias. Intentional discrimination includes different treatment of individuals, as well as harassing statements or overt conduct. Indirect discrimination can include practices or policies that have an adverse impact on employees of protected categories. For example, requiring workers to be over six foot tall may have a disparate impact on woman and therefore violates the LAD. If, however, an employer can establish that the requirement is necessary to perform the job and there is no alternative available, then the policy would not violate the LAD.

New Jersey Whistle Blowing Protection

The Conscientious Employee Protection Act (“CEPA”) prohibits New Jersey employers from retaliating against employees who disclose, object to, or refuse to participate in actions which they reasonably believe are either illegal or in violation of public policy. CEPA protects all New Jersey employees and independent contractors. The New Jersey Supreme Court has described CEPA as the most far-reaching whistleblower statute in the nation. CEPA has been found so expansive that it even protects employees who erroneously accuse their employer of a wrong doing in good faith. New Jersey employees should beware, however, that in most circumstances they must advise a supervisor, in writing, and give reasonable time to correct the problem.
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spam.jpg
The Can-Spam Act , signed into law in 2003, was the first federal law to establish national standards for commercial e-mails. “CAN-SPAM” actually stands for “Controlling the Assault of Non-Solicited Pornography and Marketing”.

The Act gives recipients of spam – i.e. unwanted commercial advertisements sent by e-mail – the ability to prevent spammers from continuing to bombard them with e-mails.

The Can-Spam Act’s main requirements for businesses which send out bulk commercial e-mails are:

  • The Can-Spam Act covers all commercial messages – even business-to-business e-mails;
  • The header cannot be false or misleading;
  • The subject line cannot be deceptive;
  • The message must be identified as an advertisement; the Act leaves wide leeway in how to do this, as long as the sender clearly and conspicuously discloses that the message is an advertisement;
  • The message must inform the recipient of where the sender is located. A post office box may be sufficient;
  • The e-mail must clearly and conspicuously advise the recipient as to how it can opt-out of receiving future emails. The notice should be drafted so that it is easy for an ordinary person to recognize, read, and understand. The Act suggests using alternative type, size, or color to improve its visibility.
  • There must be a simple, internet-based way for people to communicate their request to stop receiving the messages (such as a return email). Although the business may provide a menu to allow recipients to opt out of only certain types of messages, the business must include the option of stopping all messages.
  • The opt-out requests must be complied with promptly – meaning within ten business days, and honoring requests made at least thirty days after the message was sent.
  • The business cannot charge any fee or require any personal information (other than e-mail address) from the recipient in order to make the opt-out request.

 

 
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cybersquatting.jpgBusinesses acquire rights in a trade name which they use in commerce, whether they register it or not. One of those rights is protection from “cybersquatting.” This protection was added to the federal Lanham Act in 1999, which protects against unfair competition and is the main federal law protecting trade names, when Congress passed the Anti-Cybersquatting Piracy Act (known as the “ACPA”).

Cybersquatters register domain names likely to be used by businesses – sometimes in the tens of thousands – and then attempt to sell them to businesses or people with similar names. Sometimes they register variations of popular trade names, which is referred to as “typosquatting.” They may also use a program to obtain domain names already registered when the registrations expire, often using automated programs, which is referred to as “alert angling,” “extension exaggeration” or “renewal snatching.” The name cybersquattnig itself comes from the term “squatting,” in which people trespass and occupy vacant buildings.
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New Jersey property owners are responsible for most incidents that take place on their property. New Jersey property owners are responsible to keep their land free of known or foreseeable hazards, such as wet floors, debris, snow and ice accumulation, and cracks in the sidewalk. This is known as New Jersey’s premises liability law.

A typical example of this is when a New Jersey property owner fails to repair her sidewalk. If the property owner knew or should have known that the sidewalk was in a state of disrepair and failed to repair it; if so, the property owner can be found responsible. Other slip and fall accidents have been found to create liability for New Jersey property owners because of wet floors, improperly secured mats or rugs, spilled substances, bad lighting concealing a hazard, or failure to properly remove snow and ice.

People who have a slip and fall accident on another’s property can quickly find themselves with significant out-of-pocket financial expenses, such as large medical bills, lost wages, and many other financial hardships. However, if you have one of these accidents you may be able to hold the property owner responsible under New Jersey premises liability laws to help cover your financial expenses and receive compensation for your pain and suffering.

All New Jersey property owners have a duty to keep their property safe from any known or foreseeable hazards. However, this does not mean that a property owner is automatically liable for any accident. This is when the experienced attorneys McLaughlin & Nardi attorneys can help.
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warn.jpgWe live in a time of economic turmoil. New Jersey’s unemployment rate stands at nine percent, well above the national average. Many New Jersey employees find themselves losing what they thought were secure jobs. Loss of a job can lead to devastating consequences. However, both the Federal and New Jersey WARN Acts require employers to provide advance notice before instituting mass layoffs.

The Federal WARN Act.

The Federal Warn Act was passed by Congress in 1988. It was designed to give workers and their families advance notice of mass layoffs to allow them, and their communities, to prepare for the impact of plant closings. It was passed with a veto-proof majority; it thus became law even though President Reagan did not sign it.

The Federal Warn Act requires 60 days notice to workers (or their union) who are affected by mass layoffs or plant shutdowns. It covers businesses with 100 full or part-time employees who work a combined 4000 hours per week or more. It covers plant shutdowns of at least 30 days which affect at least 50 employees, or mass layoffs affecting at least one third of the workers at a single worksite.

Exceptions to the notice requirements are made for closings or layoffs resulting from unforeseeable events or business circumstances. An employee who did not receive the notice can sue for unpaid wages and the employer may have to cover her attorneys fees, in the court’s discretion, if the failure was not in good faith. The employer may also face penalties.
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Businesses with any New Jersey employees are responsible for withholding and paying income taxes, Medicare taxes, and Social Security, and paying payroll taxes on wages paid to their employees. However, in general, the same businesses do not have to do so when hiring independent contractors.

Therefore, it may be tempting for a business to classify all workers as independent contractors to avoid payments. However, the Internal Revenue Service and New Jersey Division of Taxation have stringent regulations to ensure that businesses correctly classify their workers. The IRS imposes significant penalties on businesses which have misclassified their workers as independent contractors.

A worker is an independent contractor if the “employer” has the right to direct only the result, but not the way in which the worker performs her job. For example, if a business hires a New Jersey attorney to sue another company for breach of a contract, the business does not direct the attorney on how to argue the case, what motions to file, etc. The client educates the attorney about the dispute and asks the attorney to work towards a certain result (recovering lost profits). Therefore, this attorney is a New Jersey independent contractor, not an employee.
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Totowa, NJ 07512
Phone: (973) 890-0004
Fax: (973) 256-3641

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