Prior to the lawsuit, the plaintiff had made several complaints to her employer about a co-worker who had made several inappropriate comments and gestures to her.  Although the plaintiff refused to identify the person, she had told her employer he was the only male program supervisor.  The trial court dismissed the count because the plaintiff had steadfastly refused to identify her harasser when she made complaints to her employer.

The Appellate Division reversed the trial court because it found that although the plaintiff never gave her harasser’s name, the employer should have known who it was based on the identifying information the plaintiff had given.  The case was remanded to the trial court to proceed towards trial.

This case highlights the critical importance of investigation of employee complaints, even when the employee does not provide as much information as you would like.  Laddey, Clark & Ryan has extensive experience with internal investigations of sexual harassment and other employment concerns and is always available to assist you in preparing and investigating employee complaints.  Please contact one of our employment attorneys for more information.

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     The NJDEP became involved with the Hubers after a neighbor complained that the Hubers were placing fill and mowing vegetation within the wetlands and transition areas of their backyard.  Without the Hubers’ permission, NJDEP entered and inspected the residential property on two separate occasions, and obtained aerial photography of the wetlands.  NJDEP then charged the Hubers with removing vegetation and placing fill and disturbing protected areas, and issued an Administrative Order and Notice of Civil Administrative Penalty Assessment detailing the violations. The Huber’s appealed and the case was transferred to the Office of Administrative Law (OAL).   

     At the OAL hearing, an administrative law judge (ALJ) heard testimony from the NJDEP employee that inspected the Huber’s property and from the property owner.  Mr. Huber testified that he did place fill in a portion of the transition areas at the end of his driveway to alleviate a steep slope, but that it had washed away.  After hearing the testimony, the ALJ held that NJDEP had shown by a preponderance of the evidence that the Huber’s were improperly maintaining the wetland areas of their property.  On appeal, the Hubers argued that the testimony of the NJDEP employee should have been excluded because it was obtained without NJDEP first obtaining consent from the Hubers or a search warrant. 

     Even though the Supreme Court upheld the ALJ’s Order (based on Huber’s own testimony), it did agree with the Hubers on the constitutional issue.  Even after recognizing that the FWPA had language that compelled property owners to allow NJDEP to enter onto land subject to a FWPA permit, the Court held that the FWPA “does not purport to authorize forcible, nonconsensual entry into the backyard of a residential property owner.”  Indeed, NJDEP must present “credentials before seeking consent to entry” and if entry is denied NJDEP “shall be entitled, pursuant to the rules of court, to judicial process to compel access to the property subject to the FWPA permit.”

     The Court did not address what showing would be required for NJDEP to gain entry onto residential property that it is not subject to the FWPA (or some other regulatory scheme), but was instead left for future courts.

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1.  PERSONAL INJURY PROTECTION – Otherwise known as “PIP,” this is your medical coverage for injuries you (and others) suffer in an auto accident.  PIP pays if you or other persons covered under your policy are injured in an auto accident.  It is sometimes called “no-fault” coverage because it pays your own medical expenses no matter who caused the auto accident.  PIP has two parts – (1) coverage for the cost of treatment you receive from hospitals, doctors and other medical providers and any medical equipment that may be needed to treat your injuries, and (2) reimbursement for certain other expenses you may have because you are hurt, such as lost wages and the need to hire someone to take care of your home or family.

LIABILITY – This coverage pays others for damages from an auto accident that you cause.  It also pays for a lawyer to defend you if you are sued for damages that you cause.  There are two kinds of liability coverage: BODILY INJURY and PROPERTY DAMAGE.

2.  BODILY INJURY LIABILITY COVERAGE – Pays for claims and lawsuits by people who are injured or die as a result of an auto accident you cause.  It compensates others for pain, suffering and economic damages, such as lost wages.  This coverage is typically given as two separate dollar amounts: (1) an amount paid per individual, and (2) an amount paid for total injuries to all people injured in any one accident that you cause.  It can sometimes be purchased as a combined single limit, which offers a maximum limit of protection per accident of bodily injury and property damage liability.

3.  PROPERTY DAMAGE LIABILITY COVERAGE – Pays for claims and lawsuits by people whose property is damaged as a result of an auto accident you cause.  (May also be purchased as a combined single limit with bodily injury liability coverage.)

4.  UNINSURED AND UNDERINSURED MOTORIST COVERAGE – (often shown on your Declaration Page as UM/UIM) IS CRITICAL COVERAGE NEEDED TO PROTECT YOUR FAMILY.  This coverage pays you for property damage or bodily injury if you are in an auto accident caused by an uninsured motorist OR if you injured by a driver who is insured but who has less coverage than your underinsured coverage .

It is critical to review your auto policy to be sure that your Liability Coverage Limits AND your Underinsurance Coverage Limits match.  We recommend a minimum of $250,000 per person /500,000 per accident for BOTH Liability and Underinsurance.  Your auto carrier will provide a free quote to increase these coverage limits BUT you must be sure that they quote an increase in both Liability and Underinsurance.

A disturbing new trend:  Auto Insurance companies are more than willing to increase your Liability Coverage if you request better auto insurance coverage limits to better protect your family.  The problem is that these same companies may fail to inform you that once your Liability Coverage Limit is increased (to protect the world from you) you have the right to increase your Underinsurance Coverage to the same limits (which protects you and your family from the world).  New Jersey mandates that all NJ drivers MUST have Underinsurance and permits this coverage to match the limits of your Liability Coverage but the State does not require the insurance companies to inform you of this fact.  Consequently, some auto insurers are not informing their customers of their right to match these coverages.  There are too many families in NJ with more than adequate Liability Coverage Limits and insufficient Underinsurance Limits.  They will not likely discover the mismatched coverage limits until it is too late.  Don’t be one of them.  Check your auto coverage now and if you have any questions, please let us know.

The post Four Basic Types of Auto Insurance Coverage in New Jersey appeared first on Laddey, Clark & Ryan.

The Affordable Care Act put in place a structure to establish a marketplace where small businesses would be able to shop around for insurance plans – a Small Business Health Options Program or SHOP Exchange.  The states are permitted to run these SHOP Exchanges, but if states choose not to, the federal government would run them.  New Jersey has opted to have the federal government run the SHOP Exchange for small businesses.  The SHOP Exchange was to be open January 2014.

However, the Obama Administration recently announced a delay in the opening of the SHOP Exchanges until January 2015.  The administration cited “operational challenges” as the reason for the delay.  The result may be continued limited options for health insurance for small businesses.

The Affordable Care Act presents many challenges for employers nationwide.  Should you have any questions on the requirements of the Act or applicability of those requirements to your company, please contact one of our Employment & Labor Law attorneys.

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In Doyle v. Lakewood Township, the Lakewood Tax Collector challenged her termination.  The Plaintiff was a non-tenured Tax Collector, not subject to Civil Service or other statutory job protection.  The Trial Court dismissed the Plaintiff’s complaint on that basis.

Plaintiff conceded that she was not a tenured Tax Collector and therefore not entitled to the statutory termination procedures applicable to tenured collectors.  Instead, Plaintiff argued that her termination should be reviewed in light of the more liberal termination procedures applicable only to municipal chief financial officers.  The Appellate Division disagreed and affirmed the Trial Court’s dismissal of the complaint.

The Doyle case stands for the proposition that the terms of employment for the Clerk, Collector, Assessor, CFO and Construction Official are dependent solely on the statutes applying to each position.

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New Jersey Monthly Magazine’s “Super Lawyers” and “Rising Star” awards are considered high recognition in the legal field. It’s a recognition voted on by over 35,000 practicing New Jersey attorneys who nominate the best lawyers they have personally seen in action. This year one law firm has put Sussex County on the map once again showcasing some of the brightest and most dedicated attorneys in their specialized fields of law.

Laddey, Clark & Ryan LLP, has 6 attorneys named to this prominent list. Over the last ten years, Partners Tom Ryan, Esq., and Andrew Fraser, Esq., have strived to find the best and brightest attorneys from across the state who are recognized in their particular area of law.

 “We had a vision for our firm that we have stuck to even in these hard economic times,” says Fraser.

“While most law firms are afraid to hire new attorneys because of the economic climate, we have continued to look for talent, and now we are seeing the vision pay off.”

In fact, attorney Ursula Leo has not only been named a “Rising Star” for the third time, but this year Leo was named as municipal attorney for Newton, becoming the first woman municipal attorney in Sussex County.

“We have been carefully shaping our team of attorneys and staff to come up with the correct formula for client success,” adds Ryan. “I think we have found some of the best attorneys and upcoming talent in the state,” adds Ryan. “To have six attorneys make this list speaks volumes.”

Tom Ryan was listed as a Super Lawyer for the sixth time in the National Corporate Counsel Edition of Super Lawyers. This is the fourth year in which Ryan has been listed as a Super Lawyer in the Business Edition.

He has also been listed as a New Jersey Super Lawyer. His work includes representation of management and individuals in both the private and public sectors in all aspects of Employment and Labor Law.

This is Andrew Fraser’s seventh consecutive year of being recognized as a Super Lawyer. Fraser leads the Personal Injury Practice Group and has won record breaking verdicts year after year. He represents plaintiffs in complex personal injury litigation involving catastrophic injury, wrongful death, auto accidents, and slip and falls.

“It is humbling to know that my honesty and integrity is apparent even to many of my adversaries who have named me to this list,” continues Fraser. “Fighting for what is right and dedicating myself to its cause has not gone unnoticed- that is a great feeling.”

Lauren Fraser, a Rising Star since 2008, works in plaintiff’s personal injury cases and has extensive trial experience. As a trial team, Fraser and Fraser obtained two of the largest jury verdicts for Personal Injury cases in Sussex County history. Lauren was named in 2009 as NJ Herald’s 20 under 40 Rising Stars, a group of outstanding business and community leaders. The Personal Injury team recently spoke at a National Masters Conference on trial presentation in Atlanta, Georgia.

Richard Sweeney was named Super Lawyer for Land Use and Zoning. He was also named nationally to the 2012 Super Lawyers Business Edition for Construction, Real Estate & Environmental Law. Sweeney specializes in Land Use and Zoning, Municipal Law, and Corporate and Business Law, including Commercial Transactions and Lender Financing/Bank Review.

Rounding out the group is Attorney John McMeen who is honored to be named to the “Rising Star” list for Workers Compensation. This is the first year McMeen has been chosen for this honor. McMeen concentrates his practice on Workers’ Compensation, Collections, Contractual Disputes and Business litigation. Mr. McMeen also handles matters involving Criminal Defense and Municipal Court matters outside of Sussex County.

Only five percent of the lawyers in each state or region are selected for inclusion in the “Super Lawyers” edition of New Jersey Monthly Magazine. To learn more about Laddey, Clark & Ryan Attorneys, please visit http://www.lcrlaw.com.

Thomas N. Ryan

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Andrew A. Fraser

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Richard T. Sweeney

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Lauren D. Fraser

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Ursula H. Leo

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Jonathan E. McMeen

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Last week, the Appellate Division affirmed the dismissal of a sexual harassment case, Aguas v. State of New Jersey, Docket No. A-4432-11T3 (App. Div. Mar. 20, 2013).  This case emphasizes the importance of enacting and following an effective anti-sexual harassment complaint policy.

Ms. Aguas was a corrections officer and alleged serious sexual harassment by her supervisor.  She confronted him and told him it made her feel uncomfortable and the harassment stopped.  A month later, Ms. Aguas informally reported the harassment in conjunction with another work issue and the corrections facility conducted a full investigation.  The investigation concluded the allegations could not be substantiated.  Although Ms. Aguas could appeal the investigation findings, she never did and instead filed suit against the corrections facility.

The Appellate Division found the corrections facility was not vicariously liable for the actions of Ms. Aguas’ supervisor – even if there was harassment.  This was because the corrections facility met the affirmative defense to vicarious liability: (1) reasonable care to prevent and correct sexual harassment and (2) employee unreasonably failed to take advantage of the sexual harassment policy.  The Appellate Division found the corrections facility exercised due care in adopting a sexual harassment complaint policy and investigating Ms. Aguas’ complaints when they were received, despite the lack of any formal complaint by Ms. Aguas.

This case underscores the critical importance of a sexual harassment policy and the need for prompt action when a sexual harassment complaint has been made.  The affirmative defense is available to combat a hostile work environment sexual harassment claim and requires the employer have, and promptly implement, a sexual harassment policy.

Should you have any questions on sexual harassment policies or investigations, please contact one of our employment attorneys.

The post Sexual Harassment Claim Dismissed Because Employer Acted Appropriately appeared first on Laddey, Clark & Ryan.

The Human Resources Certification Institute was established in 1976 and is the international certifying organization for human resource professionals.  Certification is established through passing a rigorous exam in HR law and recommended policies and procedures. SPHR candidates must also demonstrate a mastery of strategic planning concepts.

According to HRCI, certification demonstrates a career-long commitment that exhibits a command of the core HR principles, and dedication to the profession.  Dolan met strict professional experience and educational requirements before taking the exam.

Dolan has served as Laddey, Clark & Ryan’s Legal Administrator since 2001. She is Vice President of the New Jersey Association of Legal Administrators.

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“We are very proud to play a leadership role in the Sussex County legal community in support of this critical cause. We believe we all have an obligation to support this essential institution. Our pledge of $10,000 is an investment in the Hospital’s Imagine Campaign; and it is an investment in our own employees’ health and wellness, as well as that of our clients, friends and neighbors. It is an investment in Sussex County, a community that deserves quality, comprehensive and compassionate healthcare,” said Thomas N. Ryan, Esq., Managing Partner at Laddey, Clark & Ryan, LLP.

In February 2012, the Newton Medical Center Foundation launched the IMAGINE Capital Campaign to support facility and technology upgrades to Newton Medical Center.  These enhancements will enable the Medical Center to modernize the hospital and bring state-of-the-art equipment closer to home. 

The IMAGINE Capital Campaign goal is to raise $3 million.  An anonymous donor has pledged an additional $1 million to the Campaign if the Foundation achieves its goal.

“We’re so grateful to the community support we have received for the Campaign. We are already seeing many positive changes throughout the hospital today. All of us on the Board are so very proud to have this kind of facility in Sussex County,” stated Mark Avondoglio, Chairman, Newton Medical Center Foundation.  “All money raised toward the campaign goes toward Newton Medical Center.”

At a recent meeting of the Sussex County Bar Association, Fredon resident Tierney Veliz spoke about one of the projects supported to date by the IMAGINE Capital Campaign—Newton Medical Center’s new Outpatient Therapy Center and Wound Care Unit.  Tierney is a 23-year old quadriplegic who expressed her gratitude for having a rehabilitation facility so close to home. Prior to the opening of the new unit, her family had to hire transportation to shuttle her back and forth from Sussex County to West Orange, NJ, for rehabilitation services.

“I’m so happy to be able to use Newton Medical Center for outpatient physical therapy and occupational rehabilitation,” said Tierney. “Prior to the hospital renovation, there were no facilities in Sussex County. It was extremely hard on my family,” she explained. “But now we have a beautiful facility. The therapists are genuinely invested in my well-being. I’m really excited to see where this goes; and I’m optimistic about where the new medical center will be in the future.”

In addition to upgrading the hospital’s occupational & physical therapy capabilities, other capital campaign projects include: a new MRI suite, two new patient care units (with private rooms), two new CT scanners, an improved visitor entrance, a new lobby, and a renovated pre-admission testing area.

Newton Medical Center was ranked the top hospital in the state for hospitals with fewer than 350 beds by Castle Connolly Medical Ltd., a national health care research and information company. These rankings were published in Inside Jersey magazine’s April 2012 issue.

If you would like to make a donation to the IMAGINE Capital Campaign, please call the NMC Foundation office at 973.579.8309.

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Bolcato is the Chair of Laddey, Clark & Ryan’s Business Law Practice Group. He focuses on acquisitions, corporate structuring, financing and creditors’ rights, and he works in the firm’s Municipal Law Practice Group on local government issues. He serves as the attorney for the Franklin Borough Board of Public Works and is former municipal attorney for the Borough of Franklin.

Bolcato graduated from the University of Scranton (B.S., magna cum laude), Rutgers University School of Law, Newark, NJ and he completed a Superior Court Law Clerkship. He is a member of the Sussex County Bar Association.

He serves as General Counsel and is on the Board of the Warren County Habitat for Humanity.  He is also an active Board Member for the SCARC Foundation and Vice Chair of the Independence Municipal Utility Authority.  Bolcato and his wife, Elena, are Independence Township residents.

The post Bolcato Named to Chamber Board of Trustees appeared first on Laddey, Clark & Ryan.

In Burlington Northern, the Supreme Court held because CERCLA does not specifically define what it means to “arrange for disposal of a hazardous substance,” the phrase should be given its ordinary meaning.  Thus, “arranger liability” now largely requires intentional steps to dispose or arrange for the disposal of a hazardous substance.  

Recently, a Federal District Court in North Carolina, decided Carolina Power & Light Co. v. Alcan Aluminum Corp., and weighed in on the scope of the Burlington Northern “arranger” liability standard.  The Carolina Power case involved the Ward transformer repair and recycling facility, which was contaminated with polychlorinated biphenyls (PCBs).  Clean-up costs for the site are estimated at $100 million. One of the defendants, Georgia Power, filed a motion for summary judgment arguing that it did not intend to dispose of PCB oil in the transformers it sold to the Ward site, and therefore could not be subject to “arranger” liability under CERCLA.

The court concluded that Georgia Power’s sale of the transformers was not an arrangement for disposal, but rather the sale of a useful product, and granted the motion for summary judgment.  In doing so, the court found:

1. Most, if not all, of the transformers were sold by Georgia Power at auction, where Ward bid on and purchased the transformers;
2. Prior to placing the transformers at auction, Georgia Power had removed the PCB oils from the transformers (though it was acknowledged and not disputed that some PCB oil residue would remain); and
3. Ward reconditioned the transformers, and resold them, most for a profit.   

In examining these fact specific circumstances, the trial court was compelled to hold that the evidence failed to establish “intent” to dispose of a hazardous substance. 

The Carolina Power decision evidences that in cases involving arranger liability, trial courts now focus on the intent of the party alleged to have arranged for disposal, as opposed to unintentional events outside the control of the disposer.  In the past, Georgia Power’s liability would have been a forgone conclusion, but since Burlington Northern these cases are being aggressively litigated to shift the paradigm of arranger liability under CERCLA.

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In the unpublished case Hillside PBA, Local No. 35 v. Mayor Joseph G. Menza, Docket No. C-133-10 and 132-10, (Mar. 6, 2013), the Appellate Division considered the events in Hillside in June 2010 when the Mayor presented a layoff plan to the Council; and the Council rejected the plan.  The Mayor then proceeded with processing the layoff plan through the Civil Service Commission. 

The Mayor was sued by the Council as well as the PBA, Local No. 35.  The trial court found the Mayor was not authorized to submit a layoff plan without approval of the Council.  The Appellate Division reviewed the strong executive nature of the mayor-council form of government, as well as the Hillside Ordinances which required the “appointing authority” to make a determination regarding the need for layoffs.  As the Mayor is the “appointing authority” under the mayor-council form of government, and the Council plays limited role, the Appellate Division upheld the Mayor’s unilateral action of instituting layoffs.

This decision emphasizes the role of a mayor in a mayor-council form of government – especially with town ordinances requiring approval only of the appointing authority.  The particular circumstances of any layoff require careful consideration as other New Jersey case law, statutes, and regulations impact those determinations.  Should you have any concerns about this case or any other municipal matter, please do not hesitate to contact one of our Municipal Law attorneys.

The post Hillside Mayor’s Layoffs Upheld Despite Objection from Council appeared first on Laddey, Clark & Ryan.

     The U.S. Department of Homeland Security, Citizenship, and Immigrations Services has released a new I-9 for immediate use.  Every employer is required to obtain an I-9 from all employees upon hire.  The I-9 assists employers in verification of an employee’s identity and legal work status.  The new I-9 can be found here:  http://www.uscis.gov/files/form/i-9.pdf 

     The purpose of the new form was to reduce errors and to clarify the instructions.  It also has new information sections for an employee’s foreign passport number (if applicable), telephone number, and email address.  Employers should immediately begin use of the new form for any new hires.  Employers should not require current employees with an I-9 on file to complete a new one.

     A helpful resource for employers with questions about the I-9 form or how to complete it is the Citizenship and Immigrations Services Handbook for Employer, Guidance for Completing Form I-9 – available here: http://www.uscis.gov/files/form/m-274.pdf

     As always, if you have any questions on the I-9 forms, or any employment matter, please contact one of our experienced employment attorneys.

The post New I-9 Form Released to Use by May 7, 2013 appeared first on Laddey, Clark & Ryan.

     In this case, Mr. Koontz was seeking to develop his property when he applied for a required permit.   He was told the permit would be granted on two conditions.  First, he was required to deed part of his property into a conservation area, which he agreed to do.  Second, he was required to perform offsite mitigation by replacing culverts and plugging drainage canals on government-owned properties seven miles from his property.  Koontz refused to comply with this second condition.  When his permit was denied, Koontz sued in state court, arguing that the offsite mitigation condition was an unconstitutional exaction.  The trial court found that Koontz’s property had been taken through an unconstitutional exaction because the condition was not related to the impacts of his project.  The intermediate appellate court affirmed. 

     The Florida Supreme Court, however, reversed, holding there was no taking.  The court explained that the constitutional test only applied to exactions of real property, not monetary exactions (i.e., paying for culverts, drainage canals, etc.).  The court also explained that, as a matter of public policy, land-use regulation would become prohibitively expensive if agencies were subject to inverse condemnation claims anytime they denied a permit. Consequently, the court held there was no taking because no permit was ever issued.

     The Supreme Court is set to decide: (1) whether the second permit condition imposed on Koontz, though not a real property exaction is nonetheless an exaction that amounts to a constitutional taking; and (2) whether the constitutional test for exactions applies where a permit is denied because the applicant (Koontz) rejected the permit condition.

     Stay tuned for further details.  When the Court issues the decision we will provide a full update!

     Watch for the continuation of New Year Ushers in New Changes to Environmental Law.

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     The new FMLA forms should be used immediately and include a notice form to employees of their rights when leave is requested, certification forms for medical conditions and military exigencies which qualify for leave, and the employer designation notice determining whether FMLA leave time applies.

     The poster is available here and the forms are available here:

WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition

WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition

WH-381 Notice of Eligibility and Rights & Responsibilities

WH-382 Designation Notice

WH-384 Certification of Qualifying Exigency For Military Family Leave

WH-385 Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave

WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

     New Jersey employers should always consider the New Jersey Family Leave Act (“NJFLA”) when considering an FMLA issue.  As a reminder, the NJFLA does not cover an employee’s own medical condition but may cover leave if an employee’s family member has a medical condition. 

     If you have questions about FMLA, NJFLA, or any other employment issue, please contact our of our employment attorneys.

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