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imagesCAWQ89PS.jpgThe United States Supreme Court recently issued a decision on a contentious question in employment law , with important implications for New Jersey employment disputes – can an employee who did not engage in protected activity sue his employer for firing him to retaliate against a friend or family member who is a whistleblower? Lower courts had split, but the Supreme Court unanimously sided with the employee and said yes.

Anti-Discrimination Statutes

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment because of an employee’s “race, color, religion, sex, or national origin.” New Jersey’s Law Against Discrimination also prohibits discrimination for these reasons, and also because of an employee’s age, ancestry, disability, marital or civil union status, domestic partnership status, sexual orientation, gender identity, atypical hereditary cellular or blood trait, military service obligations, nationality, genetic information, refusal to submit to a genetic test, or refusal to let an employer know the results of a genetic test.

Both Title VII and the New Jersey’s Law Against Discrimination prohibit employers from retaliating against employees who make complaints of discrimination.
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Trying to determine what is and what is not a trade secret is often a complicated venture. A clear example, and one of the most heavily guarded of trade secrets, is the recipe for Coca Cola. However, the definition of trade secret can be interpreted as an all-encompassing category with little clarification as to what specific information is protected.

The New Jersey Trade Secrets Act, recently passed into law in January of 2012, defines trade secrets as:

Information, held by one or more people, without regard to form, including a formula, pattern, business data compilation, program, device, method, technique, design, diagram, drawing, invention, plan, procedure, prototype or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

The Act codified accepted case law. Indeed, trade secrets have long been defined to include the any portion of technical information, designs, processes, procedures, and improvements which are secret and of value to the business holding them.
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The short answer is yes. Your will ensures that:
• your assets are given to those whom you want to receive them;
• you can control the way in the which your assets are distributed (for example, establishing a trust for the protection of a beneficiary, and designating the trustees);
• the guardians you choose will be entrusted with raising your children;
• your estate will be administered by someone you trust;
• your estate will not be reduced by the cost of an administration bond; and • estate taxes are minimized.

In your will, you choose who will receive your assets (beneficiaries) and what they will receive (bequests). If you do not have a will, your estate will pass through the laws of intestacy. Many people believe the laws of intestacy will align with their wishes for distribution of their estate. However, many times that is not the case. For example, if you are married, have no children, and do not have a will, people assume that the surviving spouse will inherit the entire estate. However, under New Jersey intestacy law , your surviving spouse is entitled to the first twenty five percent of your estate (not less than $50,000 nor more than $200,000) and seventy five percent of the remaining portion. The balance will go to your parents. So, for example, if you have a $1,000,000 estate your surviving spouse will receive a total of $800,000 and your parents would receive $200,000. In another example of unintended consequences in intestacy, if you have no living relatives and no will, your entire estate will be given to the State of New Jersey. There are many other scenarios under the laws of intestacy which would distribute your property in ways that you may not intend. Having a will ensures that your estate is distributed to people or charities that you have chosen.

Without a will, your assets are distributed under the laws of intestacy directly to the people designated by New Jersey law. In some circumstances, it may be wise to put the money in a trust for some of your beneficiaries so that you can direct when and for what purposes the money will be distributed. This is particularly useful if there are potential beneficiaries with special needs whose governmental benefits need to be protected.

A will designates your children’s guardians – a will is the only way to appoint guardians. This is an important choice. You should discuss this choice with the people you choose beforehand because you will be placing a great responsibility upon them.

You will also select executors and trustees. Executors are responsible for probating your will, paying expenses, and collecting and distributing the assets to the beneficiaries. Trustees manage assets placed in trust for designated beneficiaries. By New Jersey law, if there is no will, or a will that does not waive the bond, fiduciaries (such as executors and trustees) must post a bond with the surrogate’s court. The cost of the bond varies with the value of the estate’s assets, and can become very costly. To ensure that your assets are not diminished by the bonding requirement, you can waive it in your will.
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An estate plan carries out a person’s wishes at the time of their death and appoints people to make decisions during life.

An estate plan commonly consists of three main documents:
• Last will and testament
• Durable power of attorney • Living will and health care proxy (medical power of attorney)

Last Will and Testament. The fundamental document is the last will and testament. The will takes effect upon death. The will must meet the formal requirements under New Jersey law in order to be effective in New Jersey
The will designates people and their roles:
• Beneficiaries – recipients of the decedent’s assets;
• Executors – the persons who will probate the Will, collect the estate assets
and distribute the estate assets to the beneficiaries;
• Trustees – the persons who will manage the assets placed in a Trust usually
for the benefit of either the surviving spouse or the children or both;
• Guardians – the persons who will care for minor children until they reach the
age of majority (which is age 18 in New Jersey).

Durable Power of Attorney. The power of attorney is in effect when a person is alive; it becomes effective when it is signed. When a power of attorney is “durable”, it remains in effect even if the person is incapacitated. The durable power of attorney authorizes the people selected to handle your financial matters. Common tasks include banking, including writing checks and paying bills, real estate, trading investments, communicating with social security, pension benefits departments, Medicaid/Medicare, and the IRS, hiring accountants, attorneys, and financial advisors, and any other related financial need.
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New Jersey and Federal law have established a strong legal policy in favor of arbitration. New Jersey’s courts, like the federal courts, regularly uphold arbitration agreements in employment contracts. They have repeatedly enforced these agreements and do not consider them “contracts of adhesion.” This is starkly different than how New Jersey’s courts treat insurance policies, and ignores the long-established legal principles upon which its analysis of insurance policies rests.

Contracts of adhesion are agreements where the two parties have unequal bargaining power, and the party with the greater leverage forces “oppressive or unconscionable” terms on the other. They are often presented on a “take it or leave it” basis. When a New Jersey court finds a contract of adhesion, it will strain to protect the weaker party, whether by construing the agreement against the stronger party, eliminating unfair or oppressive terms, or voiding it in its entirety.

In Martindale v. Sandvik New Jersey’s Supreme Court ruled that despite forcing an employee at the company’s Fair Lawn plant to give up her constitutionally protected right to a trial by a jury of her peers, the agreement was not “oppressive or unconscionable.”

An employee and employer, especially a large, multi-national corporation such as Sandvik, simply do not have equal bargaining power. There is a large labor pool for employers to choose from, especially in these troubled times. This gives the employer the upper hand. Employers can – and do – tell employees to agree to arbitration or go look for work elsewhere; this is no choice at all for most employees. Indeed, this is all the more true when an arbitration requirement is adopted as a policy after an employee has already started work and is given the choice of either agreeing to arbitration or being out of a job, despite the years, and often decades, invested by the employee.
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Employers commonly require that potential employees sign agreements waiving their right to jury trials and, instead, requiring them to arbitration all disputes arising from their employment. New Jersey and Federal law supports enforcement of arbitration agreements.

Arbitration agreements are controlled by the Federal Arbitration Act and the New Jersey Arbitration Act. In arbitration, a dispute is submitted to a neutral third-party who makes a binding decision.

Although arbitration can be cheaper and faster than litigation, it is more advantageous to the employer. First, a decision is made by a single person (usually a lawyer or a retired judge) instead of a jury, which might be more sympathetic to an employee (especially since the arbitrator will know that the employer drafted the agreement and chose arbitration). In addition, discovery of information between the parties is significantly limited, favoring the employer which has most of the evidence, especially in a suit for wrongful firing. It is also difficult to appeal an arbitration agreement.

It is important to read employment documents presented carefully. People presented with arbitration agreements should seek an attorney’s advice because courts generally enforce arbitration agreements, even though they appear to be contracts of adhesion. A contract of adhesion is an agreement that is presented on a take-it-or-leave-it basis by a party with dominant bargaining power. Normally contracts of adhesion are unenforceable. However, in 2002 the New Jersey Supreme Court in Martindale v. Sandvik, Inc., ruled that employment agreements requiring arbitration are not contracts of adhesion.
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New Jersey’s Contractors’ Registration Act, passed in 2004, requires contractors to register with the Division of Consumer Affairs (known as “the DCA,” a part of the Department of Law and Public Safety in the Attorney General’s Office) and disclose specific information to homeowners in a written contract. Violation of this act carries significant penalties.

The Act requires disclosures such as start and stop dates; materials to be used; and payment amounts, breakdowns, due dates and bench marks. It also requires proof of insurance; display of registration numbers; certain other specific information; copies of warranties; and notices of the consumer’s right to cancel within three business days.

Violations of same provisions of the Act can be crimes of the fourth degree, with sentences up to eighteen months in prison, and violation of New Jersey Consumer Fraud Act, which entitles homeowners to triple damages plus their attorneys fees. Therefore, it is good practice for contractors to have experienced attorneys who know the requirements of the Act draft their written contracts.

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1380330_rural_winter_scenery.jpgNew Jersey residents face many financial issues – layoffs, business failures, depressed housing prices, reduced wages and overtime, high interest rates, credit card debt, loan and mortgage payments. For years, many New Jersey residents have been pursued by debt collection agencies and attorneys. While some individuals do owe money, some people hounded by debt collectors don’t owe anything at all. Often, it is a case of mistaken identity, confused paperwork, or unrecorded payments. In other cases, New Jersey residents have encountered problems but resolved them with the lender, only to find that the debt collector (agencies or attorneys) don’t get the word or chose to ignore it. The Federal Fair Debt Collection Practices Act has provided some measure of protection, but mainly in the areas of disclosure and communications and required notices by the debt collectors. Other than that, there was no federal help.

In July 2011, however, the United States Consumer Financial Protection Bureau, the new consumer financial watchdog, was created by the Dodd-Frank Wall Street Reform and Consumer Protection Act. The Bureau has drafted proposed regulations which would place the major debt collection agencies, including debt collection lawyers, under federal regulation and scrutiny. These regulations apply only to debt collectors recovering more than ten million dollars per year from consumers. It would also regulate and scruitinize credit reporting agencies, but again only the largest ones which earn seven million dollars or more from their consumer business. The regulations have just entered the proposal process, which begins a sixty day comment period before the regulations can become final. After that, undoubtedly, debt collection agencies will challenge the regulations in court; and the regulations themselves do not yet offer direct remedies to aggrieved residents. However, when they becomes final and allow for regulation and scrutiny of the debt collectors, including attorneys, the regulations are bound to have a positive impact on New Jersey residents hounded by debt collectors.

There are currently some federal remedies. For example, the federal Fair Debt Collection Practices Act requires that debt collectors disclose what they are, regulates the communications they can make, and requires them to verify the debt if demand is made by a consumer. Additionally, New Jersey’s Consumer Fraud Act provides other significant remedies against unscrupulous or sloppy debt collectors, and significant penalties for violation.

Some might not think that this regulation is necessary. However, our experience has been that in many cases debt collectors go after the wrong people. Sometimes they simply get the wrong person. Other times payments were not recorded. Some people have worked out resolutions with lenders after they have fallen behind on payments, but the debt collectors (agencies and attorneys) refuse to honor or acknowledge the settlements.
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Fax: (973) 256-3641

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