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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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Pregnancy Discrimination
In 2011, the Equal Employment Opportunity Commission (“EEOC”) received the largest number of complaints of pregnancy discrimination in its history. Pregnancy discrimination has been increasing since at least 1992. Pregnancy discrimination in New Jersey, New York and nationally continues to be a major problem.

It is illegal to discriminate against pregnant mothers. Pregnancy discrimination in New York and New Jersey is barred by law. Employers may not refuse to hire pregnant women, fire pregnant women, or lay employees off because of their pregnancy, harass or transfer them because of their pregnancy, or shift them to work that is perceived as “safer” or “lighter.” The only exception is that transfers can be made as a legitimate accommodation for the specific medical needs of a particular employee.

Employers are permitted to ask the estimated delivery date and expected length of leave before and after delivery, but they are not allowed to ask for a specific date that pregnancy leave will begin. Employers must rehire mothers after delivery, and make reasonable accommodations beforehand.

New Jersey Law
New Jersey’s Law Against Discrimination bans discrimination based on “sex.” The New Jersey’s Supreme Court has ruled that sex discrimination includes discrimination based on pregnancy.

Federal Law
Title VII of the Civil Rights Act of 1964 likewise prohibits pregnancy discrimination. In 1978, Congress enacted the Federal Pregnancy Discrimination Act. The Federal Pregnancy Discrimination Act amended Title VII to include pregnancy discrimination as sex discrimination. It also prohibits discrimination based on medical conditions related to pregnancy. It provides that if an employer offers a health plan, pregnancy must be a covered condition. However, the Federal Pregnancy Discrimination Act, being part of Title VII, only covers employers with 50 or more employees.
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The spousal impoverishment provisions of the Medicare Catastrophic Coverage Coverage Act of 1988 changed the requirements for eligibility for Medicaid when only one spouse needs to enter a nursing home and is expected to stay in the nursing home for at least 30 days. The law’s purpose is to preserve some of the assets of the other spouse (the “at-home” spouse). The at-home spouse is permitted to retain one-half of all “countable assets” subject to a minimum of $22,728 and a maximum of $113,640 (this is called the “Community Spouse Resource Allowance”).

The couples’ assets must be analyzed prior to applying for Medicaid. This includes all assets owned by the spouses jointly or individually. The first thing to assess is which assets are countable assets under the Medicaid laws and regulations. The following assets are exempt (not countable): the marital home, personal belongings and household goods, one car or truck, income producing real estate, burial plots and related items, irrevocable prepaid funeral contracts, the value of life insurance policies where the aggregate face value of the policies is less than $1,500 (if the aggregate face value of the policies exceeds $1,500, then the cash value of the policies is countable). All other assets are countable. Examples of countable assets are: cash, savings accounts, checking accounts, certificates of deposit, U.S. Savings Bonds, IRAs, 401(k)s, 403(b)s, nursing home accounts, prepaid funeral accounts which can be cancelled, some trusts, additional cars (in excess of one), other real estate, boats, recreational vehicles, stocks, bonds, mutual funds, and mortgages held on real estate sold. The at-home spouse may retain the exempt assets and one-half of the countable assets up to $113,640. The remainder of the assets must be spent until only $2,000.00 remains.
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Thumbnail image for tax appeal.jpgA common question is how can property taxes be lowered? The answer is to file a tax appeal. In the current depressed real estate that the value of your home is often dramatically lower than the town has assessed it and you should appeal that assessment. In this economic climate, this is important to explore. A property tax appeal can drastically reduce your property tax payments. You can only appeal your tax assessment, i.e. the value the town assigns your property; you cannot lower your property tax rate.

To evaluate whether your property tax assessment is too high, first determine the fair market value of your property. Recent sales of similar properties in your neighborhood provide a good idea. Then you “equalize” your assessment to the fair market value of your property using your municipality’s “equalization ratio.” The equalization ratio is used to adjust for town-wide market fluctuations over time. Apply the equalization ratio to your assessed value to find the value the municipality has determined is the fair market value of your home (the “equalized market value” – this is usually not the same as the unequalized assessment in your tax bill). If the fair market value of your property is more than 15 percent less that the equalized market value, you should move forward with a tax appeal.
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Thumbnail image for Thumbnail image for baby.jpgBoth state and federal laws govern family leave in New Jersey. The Federal Family and Medical Leave Act (FMLA) and New Jersey Family Leave Act (FLA) have long provided 12 weeks of unpaid family leave for employees of employers with at least 50 employees. In 2008, New Jersey passed the New Jersey Paid Family Leave Act.

The Paid Family Leave Act mandates six weeks of paid family leave to care for a newborn or newly-adopted child, or to care for a family member with a serious health condition.

Eligible employees receive two-thirds of their salary (up to $524 per week). The benefits are paid by the State and funded by a tax from all employees’ paychecks; employers do not incur any direct costs.
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Totowa, NJ 07512
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Fax: (973) 256-3641

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