Articles for November 2013

Employment Issues

Employment law is a complex and continuously changing area of law that requires a significant amount of time to master.  For the past ten years, I have devoted a significant amount of time developing a high level of proficiency of this field of law.  I have litigated discrimination, harassment and retaliation cases under the New Jersey Law Against Discrimination and the New Jersey Conscientious Protection Act.  I have also brought employment actions pursuant to violations of employee handbooks and company policies.  I have negotiated more money and/or greater benefits for over a hundred cases involving negotiations of severance packages.  I have successfully litigated or settled employment actions against Fortune Five Hundred companies, the State of New Jersey, and business large and small.  I have also successfully defended a handful of small businesses in these cases.

I am an active member of the National Employment Lawyers Association.  This is a prestigious organization for focuses on the prosecution of employee claims in the area of employment law.  I communicate with members of NELA on a regular basis in the preparation and litigation of employment matters.

A few of the most common types of employment or labor law matters that I handle on a regular basis are:

  • Wrongful Termination
  • Sexual Harassment
  • Whistleblower Retaliation
  • Severance/Separation Package Negotiations
  • Unlawful Terminations Due to Pregnancy 
  • Age, Race, Disability and Gender Discrimination
  • Qui Tam
  • Civil Rights
  • Administrative Law
  • Public Employee Disciplinary Actions
  • Emotional Distress
  • Defamation Slander/Libel
  • Employment Contract Negotiations

On select employment cases, I offer “Contingency” fees to my clients.  This means that you pay nothing to I unless we recover money for you.  I also offer hybrid retainer options where there is a sharing of risks and benefits in prosecuting a lawsuit between my clients and myself.

Workplace Rights in New Jersey

I. Introduction

If you are an employee in the State of New Jersey, then you have certain workplace rights under our laws. The intent of this article is to describe the essentials of these rights in an understandable manner. While I expect that this article will be helpful to those struggling to deal with discrimination, harassment or retaliation in the workplace, it is not a replacement for legal representation. I urge those who feel that their rights have been violated to promptly seek a free consultation with a competent attorney to go over alleged violations in detail.

II. At-Will Employment

Unless one has a fixed employment contract or is affiliated with a union, a person is considered to be an “at-will employee.” An at-will employee is a person who can be hired and fired at will. This means that they can be fired at any time and for any reason or for no reason at all. It can be for a good reason, such as for failure to show up at work on time or for a bad reason, such as your boss does not like you. There are two main exceptions to this rule: (1) that they can not be fired for an illegal reason or (2) if the company expressly limits the manner in which it will fire its employees.

People do not believe this concept. Most feel that they have broader rights than those which I stated. They believe that they have a constitutional right to be treated civilly and fairly at the workplace. The fact of the matter is that neither the Federal nor State government requires employers to treat their employees fairly. That does not change the fact that one was treated unfairly. It merely means that it is not unlawful.

III. Protection For Employees Under New Jersey Statutes

Most wrongful discharge law litigation focuses on the two above-mentioned exceptions to this general rule. The first exception is that the employer’s actions are illegal either because the employer discriminated against or retaliated against the employee. Discrimination and retaliation in the workplace is generally protected against by these State statutes: The New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 et seq., the New Jersey Conscientious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1 et. seq., the New Jersey Family Leave Act (“FLA”), N.J.S.A. 34:11B-9 and the Workers’ Compensation Law, N.J.S.A. 34:15-39.1.

A. New Jersey Law Against Discrimination

The LAD protects employees who are harassed or discriminated against because of their being a member of a “protected class”. The protected classes covered under the LAD are: race, creed, color, national origin, ancestry, age, marital status, sex, atypical hereditary, cellular or blood trait, service in the Armed Forces, handicap (including AIDS or being HIV Positive) and sexual orientation.

If one seeks to use the LAD in litigation, they have to make sure that they can prove the elements of the cause of action. In other words, you can only sue successfully if you can insert provable facts into the elements of the claim.

To make it digestible, I have presented the elements to various types of LAD causes of actions in the form of questions. If one can answer yes to each of these questions, then they may have a claim under the LAD.

1. Protection From Discrimination

Discrimination usually is expressed by way of disparaging treatment. In other words, an individual is treated differently (not hired or fired) from everyone else because of the fact that they are a member of a protected class. This can be proved through direct or indirect evidence. Direct evidence of discrimination is easy but not very common. Where an individual has direct evidence of discrimination, it is unnecessary for him or her to make a separate showing of intent.

If you can answer affirmatively to the following questions, you may have a discrimination case actionable under the LAD case that’s provable with direct evidence:

Were you a member of a “protected class” as it is defined under the LAD?
Did anyone tell you (or someone who would testify for you as a witness) that the reason you were not hired or were fired was because of the fact that you were a member of that “protected class.” OR Did you (or any of your testifying witnesses) read documents or company policies which were obviously discriminatory in nature?

Proving discrimination with indirect evidence is a bit more difficult. However, if you were not hired for a position, you may be able to prove that you were discriminated against if you can answer the following questions in the affirmative:

Were you a member of a “protected class” as it is defined under the LAD when you applied for the position?
When you applied for the position were you qualified to perform the position in which the potential employer was seeking applications?
Did the potential employer, despite the fact that you had adequate qualifications, reject you?
Did the position remain open after your rejection?

If you were fired from a position, you may have been discriminated against if you can answer yes to all of the following questions:

Were you a member of a “protected class” as it is defined under the LAD?
Were you performing your job at a level that met your employer’s legitimate expectations?
Were you nevertheless fired?
Did your employer subsequently seek or hire someone else with similar qualifications to perform the same work as you were performing prior to being fired?

Under the LAD, after you have established your case by answering yes to the above questions, the burden shifts to your employer. Your employer then has the burden of showing that you were fired for a legitimate non-discriminatory reason. If your employer can provide a legitimate reason, then the burden shifts back to you to prove that either (1) the company is using the legitimate reason as a smoke screen to cover up the discrimination or (2) while there is a possible legitimate reason for your termination, the discrimination is the more likely reason for the wrongful discharge.

a. Protection From Handicap Or Disability Discrimination

Special standards apply to handicapped or disability discrimination under the LAD where you can only prove the discrimination with indirect proof. The statute prohibits any employer from discriminating against a person because he or she is or has been a handicapped individual unless the nature and extent of the handicap reasonably prevents the person from performing his or her job. “Handicapped” individuals include (but not limited to) the following types of persons: those suffering from epilepsy, alcoholism, AIDS, tested positive for HIV, bad backs, heart conditions, obesity, addiction to illegal drugs and those suffering from emotional ailments.

If one’s employer determines that a handicapped individual is unable to perform the duties of that person’s job, the employer must attempt to make a “reasonable accommodation” to the handicapped employee or handicapped individual seeking to be hired. This must be done before the employer fires, demotes or fails to hire the individual. A “reasonable accommodation” includes light duty, job restructuring, or doing something to make it easier for the handicapped person to perform his or her job. However, if the employer can prove that the necessary accommodation would impose an undue burden on the operation of its business, the employer does not have to make the accommodation.

You may have a “failure to hire” handicap or disability discrimination lawsuit under the LAD if you can answer yes to these questions:        Were you a “handicapped” individual as it is defined under the LAD when you applied for a job?

  • When you applied for the position, were you qualified to perform the job, with or without reasonable accommodation, in which the potential employer was seeking applications?
  • Did the potential employer, despite the fact that you had adequate qualifications, reject you?
  • If you needed “reasonable accommodations, they were not the kind or type that would impose an undue operations or financial burden on potential employer?
  • Did the position remain open after your rejection?

You may have a wrongful discharge due to handicap discrimination case under the LAD if you can answer affirmatively to the following questions:        Were you a “handicapped” individual as defined under the LAD?

  • Were you performing your job at a level that met your employer’s legitimate expectations (with or without “reasonable accommodations)?
  • You would have been able to perform your job to meet your employer’s legitimate expectations if you had been offered “reasonable accommodations” but were denied them?
  • Despite answering yes to the above questions, you were nevertheless fired?
  • Did your employer subsequently seek or hire someone else with similar qualifications to perform the same work as you were performing prior to being fired?

2. Protection From Harassment

The LAD also protects “protected class” individuals from harassment. There are two types of harassment that are covered, “quid pro quo” and “hostile environment” harassment. Quid pro quo sexual harassment occurs when a supervisor tries to make an employee submit to sexual demands as a condition of his or her employment. Hostile work environment harassment exists when a supervisor or co-employees harass an employee because of his or her being a member of a “protected class” to the point in which the working environment becomes hostile.

You may have a quid pro quo sexual harassment cause of action if you can answer yes to these questions:        Did a co-employee or supervisor subject you to unwelcome sexual conduct?

  • When you declined to submit to the sexual advances, the co-employee or supervisor used this decision as the basis of adversely affecting your conditions of employment, i.e., you lost your job, were demoted or suffered a loss in compensation, terms, conditions or privileges of employment?

You may have a valid claim for hostile work environment harassment if you can answer affirmatively to these questions:

The conduct that you are complaining about would not have occurred but for the fact that you are a member of a “protected class?”

  •  The conduct was severe and pervasive?
  • Not only a hypersensitive member of your “protected class” would think that what happened to you was severe and pervasive enough to be a hostile work environment, but a reasonable member of your “protected class” would find it to be a hostile or abusive environment as well?
  •  Was the conduct so bad that your conditions of employment were altered and the working environment was considered hostile or abusive?

Under the LAD, if the harassment (either quid pro quo or hostile work environment harassment) is committed by a co-employee, then your employer will be liable where it either knew or should have known of the harassment and then failed to take remedial or corrective action and simply allowed the harassment to continue. If a supervisor commits the harassment, then the employer is liable on what’s called a strict liability basis. Strict liability basis means that you do not have to prove that your employer knew or had reason to know of the harassment.

The LAD provides a number of remedies for victims of discrimination or harassment. These potentially include: reinstatement, back pay, front pay, attorneys’ fees, recovery of money for emotional distress, and punitive damages.

B. New Jersey Conscientious Employee Protection Act

CEPA provides protection from retaliatory action for employees who “blow the whistle” on their employers. The statute is very specific as to who will be shielded from retaliation. It protects those employees who disclose or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that an employee reasonably believes is in violation of a law, rule or regulation, a crime or a violation of public policy concerning the public health, safety, welfare or the environment. This usually arises where an employee either refuses to participate in illegal activity or speaks out against the illegal activity of others at their place of employment.

If an employee reasonably believes that illegal acts are being committed at the place of his or her employment, unless it’s an emergency situation or one’s supervisor already knows about the illegal activity, the employee must ordinarily first give the employer the opportunity to correct the problem before going to an outside governmental agency. The employee reports the alleged illegal activity in writing and gives it to his or her supervisor. The employee must also give the supervisor a reasonable opportunity to correct the problem. If the employer retaliates against the employee for bringing this complaint, by taking any kind of adverse employment action against the whistleblower (e.g. firing, suspending, and demoting), then the employee can bring a CEPA action against the employer.
You may have a valid CEPA cause of action if you can respond affirmatively to these questions:

  • Have you either observed others, at your place of employment, committing a violation of the law, fraudulent or criminal, or against a clear mandate of public policy, or have been asked to personally participate in such an activity?
  • Do you reasonably believe that what has occurred is a violation of the law?
  •  Assuming it was not an emergency situation and your supervisor does not already know of the illegal activity, did you provide a written complaint about the activity to your supervisor?

Did your employer take an adverse employment action against you (e.g. fire, demote or suspend you) as a direct result of bringing the complaint?

C. New Jersey Family Leave Act

New Jersey also protects employees from retaliation by employers for going on a leave of absence due to a birth of a child or a family medical emergency. The FLA covers employers with 50 or more employees. It protects employees who have been employed for at least the past 12 months and who have worked each working day for 20 or more workweeks during that year.

If you are an eligible employee under the FLA, you are entitled to take a family leave for up to 12 weeks within any 24 month period for the birth of a child, the adoption of a child, or to deal with a serious health condition of a family member. A “family member” is defined as a child, parent or spouse of the employee. “Serious health condition” means any illness, injury, impairment or condition which requires hospital or home care by a health care provider.

Unless it is an emergency, an employee must ordinarily give his or her employer notice of intent to take a family leave of absence. A thirty-day notice is required for the birth or adoption of a child. A shorter, fifteen-day notice is necessary for the care of a seriously ill family member.

The employer is not required to pay the employee during the duration of a family leave of absence. However, the employer must continue to provide other benefits such as medical leave, sick leave, and any other company benefits (in certain cases, the employer is not required to provide health coverage). The employee might also be required to provide the employer with certifications issued by health care providers in connection with the leave.

Upon return from the leave, an employee is entitled to be reinstated to the position which he or she held before taking the leave. If that position is filled, the employee must be restored to an equivalent position. The only exception to this would be if the employee experiences a layoff of employees during the employee’s leave. But that layoff would have to be bona fide and cannot simply be an act of retaliation.

If the employer retaliates against the employee for taking the leave, the employee can sue under the provisions of the FLA statute. The potential remedies available for the employee are: back pay, front pay, compensatory damages, punitive damages, attorneys’ fees, and costs of suit.

You may be able to successfully pursue a FLA claim if you can answer yes to each of these questions:

  • Did you work for a company or public agency that employed 50 or more people?
  • Did you work at that company each day for at least 20 or more weeks during the past 12 months?
  • Did you request a leave from employment for the birth or adoption of a child or to care for a seriously ill family member?
  • Assuming it was not an emergency situation, did you provide your employer with the notice required under the FLA?
  • Did you cooperate with your employer’s requests for a certification by a health care provider in relation to the reason for your leave?
  • Did your employer take an adverse employment action against you (e.g. fire, demote or suspend you) in retaliation for exercising your rights under the FLA?

D. New Jersey Workers’ Compensation Act

The New Jersey Workers’ Compensation Act prohibits an employer from firing, suspending, demoting or otherwise discriminating against any employee who has claimed or attempted to claim workmen’s compensation benefits form the employer. Under the statute, the employer may be fined and the employee who was discriminated against shall be restored to his or her employment and shall be compensated by his or her employer for any loss of wages arising out of the discrimination. Our courts in New Jersey have also recognized a Superior Court cause of action, based on public policy grounds, for compensatory and punitive damages against the employer in addition to the administrative remedies available under the Workers’ Compensation Act.

The injured employee is not required to show that he or she physically filed a workers’ compensation claim petition. Rather, to state a case for a retaliatory discharge, the employee must only show: (1) that he or she made or attempted to make a claim for workers’ compensation; and (2) that he or she was discharged in retaliation for making that claim. Notifying his or her employer of the injury and inquiring as to the procedure to be followed to have the medical bills paid is sufficient to constitute an attempt to bring a claim.

You may be able to bring a claim for workers’ compensation retaliation if you can answer yes to these questions:

  •  Did you sustain an injury that arises out of and in the course of employment?
  •  Did you inform your employer of your injury and inquire how the medical bills would be paid?
  •  Did your employer take an adverse employment action against you (e.g. fire, demote or suspend you) in retaliation for making or attempting to make a claim under the Workers’ Compensation Act?

IV. Employee Handbooks

New Jersey courts have held that under certain circumstances an implied promise, in a company personnel manual, that an employee will only be fired, suspended or demoted in specific ways, may be enforceable against the employer, even if the employee is considered to be an at-will employee. If the employer attempts to fire, suspend or demote an employee in a manner which violates it’s own employee handbook, the employee can bring a lawsuit for compensatory and punitive damages.

The reasoning behind this cause of action is that unless the employee handbook has a clear and prominent disclaimer, the employee has a reasonable expectation that the employer intended to be bound by its own policies. The employer and employee are viewed as entering into an implied contract that each would abide by the provisions of the handbook. Thus, technically, it is not an exception to the concept of at-will employment; rather it is the application of common law contract laws in an at-will employment environment.

In order for a court to find an implied contract, the handbook must have been distributed to all or most of the company’s employees and was recognized to still be in effect. Additionally, the policies in the handbook pertaining to discipline and discharge have to be comprehensive, explicit and clear. The provisions will not be enforced against the employer if no one could reasonably have thought it was intended to create legally binding obligations. Finally, the handbook must not have a clear and prominent disclaimer indicating that the employer did not intend to be bound by the handbook. To be effective, the disclaimer must be strong, straightforward and absolutely clear.

If you can answer affirmatively to the following questions, you may have an actionable implied contract case against your employer:

  •  Did your employer have an employee handbook that had been in effect and had been distributed generally among the employees at the time that your employer took an adverse employment action (e.g. fired, suspended or demoted) against you?
  •  Did your employer violate one or more of the handbook’s discipline or discharge policy provisions in taking the adverse employment action against you?
  •  Were these policy provisions comprehensive, explicit and clear so as to give you a reasonable expectation as to how and why you were to be disciplined or discharged?
  •  The handbook did not have a clear and prominent disclaimer stating that the employer did not intend to be bound by the policy provisions provided in the handbook?

V. Conclusion

The laws provided in this article are merely the starting point of any potential action taken against an employer. I urge all that find themselves in a position where they are struggling to assert their workplace rights to seek out an employment lawyer for a free consultation.

Workplace Harassment Protective Measures

Introduction

Workplace harassment, especially if it is coming from your boss, can lead to a very stressful and intolerable work environment.  This article will provide you with the very first steps that you ought to consider taking as your response to this unwanted stressor in your life.
Understand Your Rights

Most people have heard of the phrases “harassment” or “discrimination” or “retaliation” but do not fully understand the definition of these terms.  The quickest way to learn about these legal terms is to locate a copy of your employer’s policies and procedures.  Often these policies are in the form of a booklet or binder and are called an “employee handbook.”  It is very important that you read this booklet carefully.  Not only will it contain definitions of harassment and discrimination, it will also usually explain the complaint procedure that you must follow in order to inform your employer of the harassment that you are unwillingly being subjected to.  Failing to follow the procedures outlined in the handbook may result in your employer taking ineffective or no action at all in dealing with the harassment situation.

Write Everything Down

It is important that you document every incident of harassment.  I tell my clients to pretend that they are reporters writing a story.  A good article will cover the who, the what, the when, the where, the why and the how.  Start at the beginning of the harassement and write, in chronological order, each incident which you consider to be an act of harassment.  Make sure that you include all of the details.  It is better to write more than to write less.  Try to write down each incident as closely as possible to when it happened.  If you can recall specific words or sentences that the harasser or witnesses said, then put those words or sentences in quotations.  Be sure to include the full names of everyone who witnessed the act of harassment and any comments that they may have shared with you.
Human Resources: Friend Or Foe?

Many Human Resources department employees are told that the primary directive of the department is to protect the interests of the company and to limit liability against the company.  While there are some HR employees that I have seen who act with genuine concern and interest in protecting the victim and conducting an unbiased investigation against the harasser, there are other individuals who have acted less honestly.  For example, where the victim is someone with little power in the company and the harasser is a rainmaker, the HR employee might be biased and unfair in his or her investigation of the victim’s complaint.

However, there are still methods that can be used by the victim to protect him or herself.  First, present all complaints in writing and keep a copy for yourself.  This way, you can document every communication that you have with HR and can rebut any future argument by your employer that you did not make a particular claim or failed to follow a particular procedure.  Second, respond to any oral or written communication from HR with a written confirmation letter/email.  You can start the letter by stating: “This is to confirm the so and so conversation that we had yesterday wherein you told me…..”  Make sure to confirm every single important aspect of what the HR person told you.  By doing this, the HR employee cannot later change his or her story and deny what was said.  Third, if the HR representative tells you that they talked to several co-employees that you named as witnesses in your harassment complaint, make sure that you speak to each of the co-employees and find out what they were asked.  By learning what questions your witnesses were asked, you will find out how thorough the HR investigator was.  You may also find out whether or not the HR representative is biased against your story.
Consulting With An Employment Law Attorney

f you believe yourself to be a victim of workplace harassment, then the quickest way to protect yourself and protect your employment may be by consulting with an experienced employment law attorney.  A good attorney can easily assess the situation and determine whether or not the conduct of the harasser is in violation of State or Federal law.  The attorney can then present you with options to obtain immediate relief from the harassment.  The sooner you reach out to a competent legal expert, the sooner you will be able to escape from the terrible stress and anxiety that comes with harassment.

The Secret That Automobile Insurance Companies Do Not Want You To Know About

Have you ever heard of verbal threshold?  I bet you haven’t.  You know why, because it’s the biggest secret that automobile insurance companies want to keep you from learning about.
Traditionally, there were no limitations in filing a claim for personal injuries in the State of New Jersey.  That changed when the State Legislature enacted the Verbal Threshold Statute.  This change was brought about by insurance company lobbyists whose primary objective was to make sure there was a law that made it much harder for victims of automobile accidents to be awarded money for their pain and suffering.

Every New Jersey residents who has auto insurance must select an option between verbal (also known as Tort or Limitation or Law Suit Threshold) and zero (or No Limitation) threshold.  The insurance company will place in its brochure a very prominent statement that zero threshold is fifty to a hundred times more expensive than verbal threshold.  Most people, not knowing anything more, choose verbal threshold to their detriment.

What is verbal threshold?  Fundamentally, it is a strict limitation on a victim’s ability to sue for injuries sustained in an automobile accident.  The verbal threshold would bar most personal injuries that are sustained in a typical car accident.  In other words, people who have selected verbal threshold will usually be barred from bringing a lawsuit for personal injuries in most typical accidents.  It doesn’t matter whose fault the accident was.  If your vehicle got hit in the rear and you sustained a soft tissue injury to your neck or back, chances are that you would be barred from recovering money for your pain and suffering if you selected verbal threshold.

Here’s how it works.  If a person selected the verbal threshold option in their automobile insurance coverage, generally, in order for that person to recover pain and suffering damages, that person’s injuries must have met or fell into one of the following six (6) types or categories:
Type 1 – Death
Type 2 – Dismemberment
Type 3 – Significant disfigurement or scarring
Type 4 – Displaced fracture
Type 5 – Loss of a fetus
Type 6 – Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.

A great deal of injuries would not be considered within this short list.  For example, Losses or injuries that are temporary in nature do not qualify.  Fractures that are not displaced do not qualify.  A victim’s claim must be supported by a physician’s certification based on objective clinical evidence.  This means that a victim’s subjective or personal complaints are not enough.  There must be an objective medical test that independently verifies the injury completely apart from the victim’s subjective complaints of pain.

The bottom line is that by choosing verbal threshold you are greatly reducing your opportunity to recover for pain and suffering if you are injured in a motor vehicle accident.  Many insurance companies will not even settle case where the victim elected verbal threshold.

Now that you know what verbal threshold is, you can decide whether you want to keep it or not.  You will now be making an informed decision about this issue.  A competent personal injury attorney is the first person you should speak to in case you become involved in a motor vehicle accident. He or she will be able to provide you with knowledge of your rights and responsibilities.  For this reason, you should seek the services of an attorney admitted to practice law in your State for assistance and guidance with your automobile questions or claims.

Steps You Need To Take To Bring Claims Against The State For Personal Injuries

When we were young we learned in history that the kings of Europe used to believe that they had immunity from any claims that their subjects wanted to bring against them.  This was based on the concept of the Divine Right of Kings, which held that the power of a king came from God above.

Today, we no longer hold kings or queens in such high regard.  However, there are still some last remnants of sovereign immunity that exists today.  In New Jersey it is called Title 59, the Tort Claims Act.  Like sovereign immunity of old, this state statute dictates the circumstances and outlines the procedures under which the State of New Jersey, and all other county and local governmental entities and individuals, will consent to be sued in court for personal injuries.

Before you can sue for wrongful death or personal injuries in the State of New Jersey or any country or municipal entity or employee, you must file a Notice of Tort Claim.  A Notice of Tort Claim can be in the form of a letter and it must provide the following information:

  1. List the name and address of the injured person.
  2. List the address that the injured party wants the governmental entity or employee to send letters and notices to.
  3. List the date, location and describe the circumstances of the incident where the injured person received his or her injury.
  4. Provide a general description of the injury, damage or loss that the injured person is suffering with.  If details are uncertain at the present time, then give them all of the details of the injury, damage or loss that you know about at the time that you mail out the Notice of Tort Claim.
  5. Provide the name or names of the public entity, employee or employees who caused the injury, damage or loss, if the injured person knows this information.
  6. Provide the amount of money that the injured person is claiming that he or she is owned as of the date of presentation of the Notice of Tort Claim.  Include in this amount, your very best estimate of amount of money as to the value of any future injury, damage, or loss that was caused by the governmental entity or employee.  Finally, provide the factors that you used as the basis of computation of the amount of money claimed for the present and future injury, damage or loss.

Unlike all other personal injury lawsuits where you have two years to file a lawsuit, when you are suing the state, you must act much more quickly.  You must file the Notice of Tort Claim within ninety (90) days from the day that you learned that you have a potential claim for wrongful death or personal injury against the governmental entity and/or employee.  You then have to wait for six (6) months from the date that you mailed the Notice of Tort Claim before you can file a lawsuit in the appropriate court of law.

Failure to follow the above procedure precisely will likely result in your claim being dismissed and preclude you from ever receiving compensation for your personal injuries. Another potentially dangerous pitfall is where you are not sure if the entity that caused you personal injuries is part of the government or not.  Examples that reflect this ambiguity include the following businesses: hospitals, utilities and transportation companies.  A seasoned personal injury attorney can easily and promptly deal with all of the hurdles that the Tort Claims Act places in front of you.

Municipal Court in New Jersey

You just received a traffic ticket and do not know what to do.  Your first inclination is to simply pay it and avoid the hassles that come with having to appear in court.  Do not follow that inclination.  The wiser approach to the situation would be to carefully weigh all of factors involved and then you can decide what to do.

The following are a series of questions that can help you in your decision to plea or fight a traffic ticket:

Did you commit the offense?

If you did not commit the offense that you have been ticketed with, then it runs contrary to reason to simply assert that you are guilty in order to get out of going to court.  Our American court system is the envy of countries across the globe.  Unlike many other countries, you are presumed innocent in an American court.  That includes municipal court as well.

Do extenuating circumstances exist?

Even if you committed the motor vehicle offense, which you are charged with, extenuating circumstances may exist that would afford you with a successful defense to the charge at court.  For example, recently I represented a senior citizen who had received a violation for failing to wear a seatbelt.  Upon meeting with her for a consultation, I learned that weeks before she had just underwent a successful hip surgery.  I learned from my client that the reason why she had not used the seatbelt on the day that she received the ticket was due to the fact that it was very painful for her to use a seatbelt.  Thereafter, I communicated with her surgeon and was able to secure a medical note from him.  On the trial date, I presented the medical note to the municipal prosecutor and was successful in getting the ticket administratively dismissed.

Was there an accident?

If you received a ticket where there was an accident involved, then simply pleading guilty to the ticket may have negative repercussions if you are later sued in a personal injury lawsuit.  A finding of guilty or a plea bargain by a municipal judge may be introduced in a subsequent civil jury trial.  If that happens, a jury might find you responsible because you did not fight the ticket.  An experienced municipal court litigator will know what to do to protect your rights and may even be able to keep out a plea of guilty.

Are points involved?

Depending on the magnitude of the ticket, by pleading guilty, you can be assessed points against your license.  If you have accumulated 12 or more points within a two-year period, then the Division of Motor Vehicles will suspend your license to drive.  See N.J.A.C. 13:19-10.2.  Many insurance companies also use points to assess whether or not they want to continue automobile insurance coverage or whether to raise your insurance premiums.

Can you go to jail by pleading to the offense?

Some offenses, like reckless driving, give the municipal court judge the discretion to incarcerate an individual guilty of the charge with up to 60 days in the County Workhouse.  Other tickets allow for imprisonment on the second or third offense.  A seasoned attorney will be able to provide you with information all of the possible penalties that come with the offense that you have been charged with and guidance and advice as to how to handle the situation.

Did the law enforcement officer violate any of your constitutional rights in stopping and/or searching you?

All law enforcement officers are limited in their powers by the Bill of Rights contained in the Federal Constitution.  For example, a police officer cannot simply stop a person driving a motor vehicle without a legitimate reason.  It is vital that you know what limits our Courts have placed on the powers of police officers, so that you can protect your Constitutional rights and, hopefully, present the municipal court with a legitimate defense to any motor vehicle or criminal offense that arose out of the unlawful stop.

Before you plead guilty and face potentially thousands of dollars in fees and surcharges, speak with a municipal court attorney who is knowledgeable in handling these matters.

Home Improvement Contracts – Know Your Rights

Each year, the New Jersey Division of Consumer Affairs receives thousands of complaints from consumers who hire contractors to do expensive home repair projects and who end up dissatisfied with the results. Typical complaints by homeowners include: shoddy workmanship, extensive delays in completing the job and hidden charges.

The New Jersey Consumer Fraud Act

The New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2, et seq., is considered one of the strongest consumer protection laws in the United States. It is designed to protect you from misrepresentation, fraud and deception in consumer transactions, including contracts for home improvement work. In court, a judge will presume that a home improvement contractor is familiar with the law. In other words, any violations of the law, even unintentional technicalities, will be enforced against a contractor.

The Contractors’ Registration Act requires that all home improvement contractors register with the New Jersey Division of Consumer Affairs. See N.J.S.A. 56:8-136, et. seq. Any contractor who is not registered with the Division of Consumer Affairs will be denied municipal construction permits and will not be permitted to perform home improvement work in New Jersey. You can check online to see if your contractor has registered with the State by going to the Division of Consumer Affairs website:

http://www.njconsumeraffairs.com

Under the law, home improvement contractors are individuals and/or companies involved in repairing, renovating, modernizing, installing, replacing, improving, restoring, painting, constructing, remodeling, moving, or demolishing residential or non-commercial properties.

Home improvement contractors include those who work on residential driveways, sidewalks, swimming pools, terraces, patios, additions, landscaping, fences, porches, windows, doors, cabinets, kitchens, bathrooms, garages, finished basements, basement waterproofing, fire protection devices, security protection devices, central heating and air conditioning equipment, water softeners, heaters and purifiers, solar heating or water systems, insulation installation, roofing and siding, wall-to-wall carpeting or attached or inlaid floor coverings, and more.

Homeowner Rights

The Consumer Fraud Act offers you protections in several ways. It is important that a homeowner know exactly what rights they have when dealing with home improvement contractors. The following are a list of rules and regulations, which must be followed by all New Jersey contractors:

♦ Contracts for home improvement projects costing $500.00 or more must be in writing and signed by the parties. The contract must include the legal name and business address of the contractor as well as a start date and a completion date, a description of the work to be done and the total price. See N.J.A.C. 13:45-16.2(12) The contract must also include the contractor’s registration number.

♦ All home improvement contracts must provide a clear and accurate description of the work to be completed and the principal products and materials to be used or installed in performing the contract. This includes name, make, size, capacity, model and model year of the principal products or fixtures to be installed and the type, grade, quality, size or quantity of principal building or construction materials to be used. Make sure that the contract states name brands or quality/grades of materials to be used.

♦ Additionally, all contracts must clearly and accurately provide the total price of the work to be completed. This includes a written explanation of finance charges, time and materials, hourly rate for labor, discounts, incentives, and all other terms and conditions affecting price.

♦ Change orders – any changes to the contract or extra work, which is to be performed – must also be in writing and signed by both parties.

♦ Dates or time period when the work will be done and completed must be clearly and accurately stated in writing. Any delays beyond the contractor’s control must be provided to you with timely written notice of the delay, reasons for delay, and revised schedule of start and completion.

♦ Make sure all warranties and guarantees are in writing. Written statements of guarantee or warranty for any products, materials, labor and other services provided by the contractor must be provided at both the estimate and signing stages.

♦ Any technical violation of the Consumer Fraud Act or its regulations, such a failure to comply with all of above-mentioned requirements of a written contract, will cause a home improvement contract to be considered null and void by a court. In such a case, the contractor is denied any compensation for services rendered and you will be able to obtain a full refund for all amounts, which had been paid to the contractor. Additionally, consumers who file a lawsuit with the court pursuant to this act may be entitled to be reimbursed for attorney’s fees.

♦ The Consumer Fraud Act requires a contractor to pay triple the amount of damages, as punishment, if the customer suffers damages to property or loses money due to contractor violations. Proof that you were caused to suffer damages due to acts of unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation or knowing concealment, suppression or omission of fact is all that is necessary to obtain a victory under this law.

I recommend that you contact a knowledgeable attorney before you sign a home improvement contract. However, if you already find yourself in a bind and are dissatisfied by a contract that you have already entered into, then it would be to your benefit to consult with an attorney right away.

Stimulus Bill Includes Significant COBRA Changes

The American Recovery and Reinvestment Act of 2009 (the “Act”), signed by President Obama on February 17, 2009, temporarily modifies the continuation coverage provisions of the Consolidated Omnibus Business Reconciliation Act of 1985 (“COBRA”) in significant ways.

Premium Subsidy

COBRA generally offers 18 months of continuation coverage to an employee who loses coverage under the group health plan of an employer with 20 or more employees. The terminated employee must pay premiums in order to receive coverage under COBRA. The Act will provide a government subsidy for nine months, which will cover 65 percent of the cost of COBRA coverage for employees whose employment was involuntarily terminated between September 1, 2008, and December 31, 2009, thereby allowing employees to continue their health coverage at 35 percent of the ordinary COBRA premium rate. Employers (in the case of uninsured group health plans) or insurers (in the case of insured group health plans) will subsidize the remaining 65 percent.

Reimbursement

The employer or insurer who pays the premium subsidy is entitled to reimbursement under the Act. The method of providing the reimbursement is for the reimbursement to be taken from the payroll taxes that the entity receiving the reimbursement owes. If the amount of the subsidy is greater than the payroll tax liability for that period, the additional amount due will be treated as a refund or a credit of payroll taxes as if it was an overpayment of payroll taxes.

Subsidy Period

The subsidy period begins with the first month of coverage after the Act is signed into law (i.e., March 1, 2009) and lasts up to nine months, but may be shorter for some employees. This is due to the fact that the subsidy period ends upon the earliest to occur of: (1) the date that is nine months after the first day of the first month that the subsidy applies with respect to such individual, (2) the date following the expiration of the maximum period of continuation coverage required under COBRA, or (3) the date following the expiration of the extension period of continuation coverage. Therefore, the Act does not extend the maximum period of COBRA coverage (typically 18 months). For example, if an employee has seven months of COBRA coverage remaining, they will not receive two additional months under the Act. Coverage will terminate on the date that represents the maximum period of COBRA coverage.

Election Extension Period

In the case of an individual who does not have a COBRA election in effect upon the Act’s enactment but who would be eligible for the premium subsidy if such election were in effect, that individual shall have a period of at least 60 days to elect COBRA continuation coverage. The coverage will be effective as of the first day of the month after the Act is signed into law (March 1, 2009) and shall not extend beyond the period of COBRA continuation coverage that would have been required if COBRA had been elected when initially offered.

Appeals

Where an individual is denied treatment by a group health plan, the Secretary of Labor shall provide for expedited review of such denial. The Secretary of Labor shall make a determination regarding the individual’s eligibility within 15 business days after receipt of the individual’s application for review under the Act.

Notice

The Act requires employers to modify COBRA election notices or provide separate, supplemental notices to all individuals who become entitled to elect COBRA continuation coverage between September 1, 2008, and December 31, 2009. These modified notices must describe the availability of premium subsidies with respect to that coverage and the option to enroll in different coverage if the employer permits individuals to elect enrollment in different coverage. The notice shall be provided within 60 days after the Act’s February 17, 2009, enactment. However, a model notice will be published no later than 30 days after the Act’s enactment.

Electing Different Coverage Options

Whereas COBRA generally does not allow employees to elect coverage other than the coverage they had immediately before the COBRA-qualifying event, the Act provides that an individual may elect to enroll in coverage under a plan offered by the employer that is different from coverage under the plan in which the individual was enrolled at the time the COBRA-qualifying event occurred, and that coverage shall be treated as COBRA continuation coverage. The election to change must be made within 90 days of receipt of the COBRA election notice. An individual may elect to enroll in different coverage only if: (1) the employer makes a determination that it will permit individuals to enroll in different coverage, (2) the premium for such different coverage does not exceed the premium for coverage in which the individual was enrolled at the time the COBRA-qualifying event occurred, and (3) the different coverage is also offered to the active employees of the employer at the time at which the election is made. This ability to change coverage options will also not allow an individual to elect into a flexible spending arrangement or coverage that provides only dental, vision, counseling or other referral services.

Penalties

An individual who does not notify a group health plan that they no longer qualify for the premium subsidy shall be subject to a penalty of 110 percent of the premium reduction. Individuals are no longer eligible for the premium subsidy if they become eligible for coverage under any other group health plan or flexible spending arrangement.

High-Income Individuals

Individuals with modified adjusted gross income that exceeds $250,000 for joint return filers or $125,000 for all other filers will not be eligible for the full premium subsidy. The premium subsidy will be fully phased out for those individuals with adjusted gross income of $290,000 or $145,000, respectively. In order to avoid these phase-out provisions, such high-income individuals may make a permanent election to waive the right to receive premium subsidies and thereby not be treated as an eligible individual.

Conclusion

The Act significantly amends COBRA and does so in a manner that is likely to require immediate action by employers. The Act’s provisions are effective immediately and will impact COBRA administration beginning in March 2009. More employees may elect COBRA coverage as a result of the Act. However, as noted above, the Act does not permanently amend COBRA; rather, the Act applies only through 2009

Protecting Persons with Disabilities from Unlawful Housing Discrimination

Fred Shahrooz Scampato, Attorney | Employment Law, Discrimination Law, Sexual Harassment, and Civil Rights Violations

New Jersey’s fair housing laws for persons with disabilities are among the strongest in the nation. The New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1, et seq., has been recognized as being one of the most powerful anti-discrimination statutes in the country. Another State act, the Uniform Construction Code Act [UCCA], also provides broad protection for persons with disabilities. The UCCA requires the NJ Dept. of Community Affairs to establish general construction standards for all types of buildings, including residential units. Among the most significant protections of this act is the mandate that the Dept. adopt a “barrier free subcode” to make sure that buildings are accessible to persons with physical disabilities. NJ’s Barrier-free Subcode [“Subcode:”] covers “[m]ulti-family residential buildings with four or more dwelling units in a single structure.” N.J.S.A. 52:27D-123b(5)

The Subcode requires architects and developers to make sure that all new housing construction includes accessible public spaces and routes of travel into the residential units. New housing construction must also have individual units that have adaptable elements, such as kitchen counters, sinks, and grab bars, that can be readily modified for individual needs. The Subcode also requires that local construction officials enforce it. The provisions of the LAD establish the right of persons with disabilities to sue when the Subcode is violated.

The Federal Fair Housing Amendments Act of 1988 (“FHAA”), 42 U.S.C. Sec. 3601 et.
seq., provides protection against discrimination on the basis of disability in housing. The following discriminatory behaviors are unlawful under the FHAA:

  • discrimination in the sale or rental of dwellings, or otherwise making unavailable or denying a dwelling;
  • indicating that a dwelling is not available when the dwelling is, in fact, available;
  • discrimination in the terms, conditions or privileges of the sale or rental of a dwelling;
  • discrimination in the provision of services or facilities in connection with the rental or sale of a dwelling;
  • prompting a person to sell or rent by indicating that a person with a disability is entering or will enter the neighborhood;
  • publishing any notice, statement or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation or discrimination;
    refusing to permit a person to make reasonable modifications to a dwelling where such modifications are necessary to afford that person full enjoyment of the premises;
  • refusing to make reasonable accommodations in rules, policies, practices or services that would be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling; and,
  • a landlord or seller asking about a tenant’s or applicant’s disability, unless the landlord or seller is providing housing designed for occupancy by persons with disabilities or for persons with a particular type of disability, and the questions relate to that applicant’s eligibility for the housing.

The FHAA applies to all residential units in buildings with five or more units. The sale or rental of a single-family house is covered by the FHAA unless the owner owns less than four single-family dwellings, and does not advertise or use a broker to sell or rent the house.

NJ State law also prohibits housing discrimination on the basis of disability. The LAD; Municipal Land Use Law, N.J.S.A. 40:55D-66.1; Handicapped Access Law, N.J.S.A. 52:32-4, et seq.; and the Subcode, N.J.A.C. 5:23-7.1, et seq., all contain provisions that protect persons with disabilities against housing discrimination. These State laws are similar, but not identical, to the Federal FHAA. In some instances, NJ State law may cover housing units not reached by the FHAA, and/or bestows greater rights against discrimination than Federal law.

You can file a housing discrimination complaint with both Federal (Dept. of Housing and Urban Development (HUD)) and State (NJ Division on Civil Rights) agencies. You can also choose to file a State court action, rather than going through government agencies. To file with HUD, call 1-800-669-9777 or TTY: 1-800-927-9275 or visit the agency’s website for an online complaint form. You have one (1) year from the date of the act(s) of discrimination in which to file a complaint with HUD. You can reach the Division on Civil Rights by calling any of the following local offices: Trenton Regional Office, 609-292-4605, TTY: 609-292-1785; Newark Office, 973-648-2700, TTY: 973-648-4678; Camden Office, 856-614-2550, TTY: 609-441-3100; or Atlantic City Office, 609-441-3100, TTY: 609-441-7648. You only have one hundred and eighty (180) days from the date of the acts of discrimination in which to file a complaint with the NJ Division on Civil Rights. If you choose to exercise your right to a jury trial, you can file a court action within two (2) years from the date of the act(s) of discrimination in which to file the complaint.
Fred Shahrooz Scampato, Esquire has been aggressively representing people with disabilities since 1991. He has successfully litigated and/or settled numerous State and Federal discrimination, harassment and retaliation matters. He is currently on the Board of Directors of the National Employment Lawyers Association of New Jersey and is currently being considered for the position on the board of trustees of a private, non-profit school in special education serving young people in grades K through 12. Mr. Shahrooz Scampato’s telephone number is: (908) 301-9095. Feel free to give him a call if you are seeking legal representation regarding any disability discrimination matter.