New Jersey Lawyers Blog

Published on: May 25, 2012

Mis-aimed Discrimination is No Defense to a Violation of New Jersey’s Law Against Discrimination, or the Bigots Who Couldn’t Shoot Straight

New Jersey’s Law Against Discrimination

New Jersey’s Law Against Discrimination (the “LAD”) protects many people, particularly employees, from discrimination because of their race, ethnicity or religion, among other things. Discrimination can take many forms, but includes direct tangible adverse employment actions, such as firing, demotion, etc., and harassment which cause a hostile work environment. In order to constitute discrimination, harassment must be either “severe or pervasive,” and severe or pervasive enough to create a “hostile work environment.”

The Law on Poorly Aimed Discrimination

The law prohibiting discrimination and harassment is well established. However, an issue arose as to whether discrimination or harassment based not on a person’s actual race, ethnicity or religion, but on his incorrectly perceived religion, race or ethnicity is also protected.

The LAD also protects against discrimination or harassment based on disability. As far back as 1982, New Jersey Supreme Court noted in a footnote, Anderson v. Exxon Co., 89 N.J. 483 (1982), that employers could not discriminate based on a perceived disability, even if the employee was not actually disabled. Although that was not the issue in the Supreme Court’s 1982 decision, the Appellate Division shortly thereafter decided another case, affirming the rule that employers could not discriminate based on a perceived, even if an incorrectly perceived, physical disability.

The LAD also prohibits discrimination in housing. In 1987, the Superior Court’s trial division found that a landlord had violated the LAD by refusing to rent an apartment to three gay men (sexual orientation is also protected by the LAD), based on the landlord’s perceived but on the mistaken perception that they would contract AIDS.
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Published on: May 23, 2012

Inspecting Bridal Gowns: Due Diligence Not Bar To New Jersey Fraud

by Maurice W. McLaughlin

Background: Due Diligence, Purchases and Sales of Business

In the sale of a New Jersey business, buyers normally perform due diligence such as inspecting profits, losses, revenue, expenses, bank accounts, tax returns and financial statements and the like. Contracts for the sale of a business often say that the buyer is not relying on a seller’s representations, but rather only on its own inspections. In many instances, conducting inspections and due diligence may bar recovery when the buyer believed going in to the closing turn out to be incorrect. The question then becomes, what if those mistaken beliefs were brought about by the seller’s own fraud?

Bridals Gowns Not What They Appear

Anwar and Donna Walid were looking to buy a business. Donna had worked at a high end retail clothing store in New York, studied textile design, and obtained a master’s degree in organization and development. Anwar, Donna’s husband, had a degree in electrical engineering and had worked in research and development for Lucent Technologies. They were highly educated people.
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Published on: May 22, 2012

Spending Down to Quality for New Jersey Medicaid

by Jennifer C. Meusel

There are limits to the assets you may own and still qualify to receive Medicaid in New Jersey. What those limits are depends on the type of Medicaid coverage you are seeking and your marital status. If you have more than the allowable amount of assets, you can only qualify by reducing them. Reducing your assets to be within the applicable acceptable limit is referred to as “spending down”. Many people think of spending the money on medical care or assisted living facilities as the only way to reduce there assets to the threshold amount. However, purchases of many items, so long as they are purchased for fair market value, and cannot be construed to be an investment, such as art or collectibles, are a valid way to reduce your assets.

If you are anticipating a need for Medicaid, the following are tried, true, and legal methods of spending down your assets, in a way that retains value for you or your family:

Purchase an irrevocable prepaid funeral plan.

Most funeral homes offer such plans. By doing this, not only do you save your loved ones that expense, but you also reduce the emotional burden on those who would have to make the arrangements after your passing.

Purchase a new car.

Only one car per person is exempt from the asset calculation, so if you already own a car, you would have to sell the old one for fair market value. If you give it to someone as a gift, the value of the car will be brought back into your asset value and will have to be spent down prior to becoming eligible for Medicaid.
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Published on: May 10, 2012

Powell v. Wachovia New Jersey’s Whistleblower Law Doesn’t Protect All Complaints

by Maurice W. McLaughlin

New 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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Published on: May 9, 2012

Determining If a Chapter 7 or Chapter 13 Bankruptcy Is Right For You

by Boris Peyner

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.”

Published on: May 8, 2012

New Jersey Motor Vehicle Accidents

by Boris Peyner

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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Published on: May 4, 2012

Collection of Consumer Debts: the Fair Debt Collection Practices Act

by Pauline M.K. Young

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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Published on: May 1, 2012

New Jersey Employment Laws

by Boris Peyner

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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Published on: April 30, 2012

Can-Spam Act: What New Jersey Business Owners Need to Know About Mass E-mails

by Pauline M.K. Young

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.

Published on: April 27, 2012

People Eating Tasty Animals Shouldn’t Cybersquat: the Anti-Cybersquatting Piracy Act

by Maurice W. McLaughlin

Businesses 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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