In Yeshivat v. Borough of Paramus, the Court ruled that the failure of a prior owner to respond to a valid Chapter 91 request for income producing property is a defect that runs with the land and acts to bar a subsequent owner’s tax appeal. In Yeshivat, Paramus moved to dismiss plaintiff’s 2011 tax appeal for failure to respond to a proper Chapter 91 request. Plaintiff contended that upon transfer of the property, it ceased to become income producing and therefore, plaintiff had no duty to respond to the Chapter 91 request.

           The Court rejected this argument and instead held that a properly served Chapter 91 request “runs with the land” and imposes upon a subsequent owner the obligation to respond in some fashion to the request served upon the prior owner. Tax assessors need not continually resend Chapter 91 requests each time an income producing property is sold.

Lexins, LLC v. Powerplace Software, Inc. et. al involved a landlord’s claim for rent against a defunct corporation and its principals. While the introductory paragraph in the commercial lease listed the corporation as well as one of the principals as tenants, the lease was signed by the two principals as “C.E.O.” and “President” respectively. The trial court granted summary judgment dismissing the landlord’s lawsuit against the corporate principals since it was clear that the lease was signed by the principals in their corporate capacity and not personally. Also, the lease was signed by the tenant prior to the Landlord’s Managing Member signing the lease, and the Landlord never questioned or objected to the lack of personal signatures on the lease. The trial court’s decision was upheld on appeal.

The take away from this case is to make sure when you are signing a contract for your business entity that you sign for the entity. For example if Joe Jones is the President of ABC Marketing, Inc. when he signs a contract the signature line should state “ABC Marketing, Inc. by Joe Jones, President”, and should not be signed simply “Joe Jones”.

Andrew A. Fraser visit superlawyers.com

Thomas N. Ryan visit superlawyers.com

New Jersey Monthly magazine released its list of the top lawyers in the state, as recognized by their peers. The selection process is long and vigorous, surveying over 35,000 practicing New Jersey attorneys who nominate the best lawyers they have personally seen in action.  Attorneys Thomas Ryan and Andrew Fraser were listed as “Super Lawyers.” Attorneys Lauren Fraser and Ursula Leo were listed as “Rising Stars.” They join Bill Knox, a multi-year Super Lawyer during his 30 year career at New Jersey Manufacturer’s Insurance. 

“This recognition comes as a wonderful honor for us,” says Tom Ryan. “For the last few years we have been carefully shaping our team of attorneys and staff to come up with the correct formula for client success. I think we have found some of the best attorneys and upcoming talent in the state,” adds Ryan. “To have four attorneys make this list speaks volumes.”

Tom Ryan’s practice includes Employment and Labor Law, Commercial Litigation and Municipal Law. He was listed as a Super Lawyer for the fifth time in the National Corporate Counsel Edition of Super Lawyers. This is the third 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 year marks Andrew Fraser’s sixth consecutive year of being recognized as a Super Lawyer. Fraser leads the Personal Injury Practice Group and won a record breaking $4 million verdict last month in a case where his client was permanently injured in an elevator accident. He represents plaintiffs in complex personal injury litigation involving catastrophic injury, wrongful death, auto accidents, and slip and falls.

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 Frasers were the coaches for the High Point High School Mock Trial team, a first runner up in the State Mock Trial competition. The Personal Injury team was recently asked to speak at a National Masters Conference on trial presentation in Atlanta, Georgia this May.

This is Ursula Leo’s second time on the list as a Rising Star. Leo focuses on Municipal Law, Zoning and Land Use, Employment and Labor Law and Litigation. This year Leo had a $305 thousand dollar arbitration award which turned into a judgment in a federal age discrimination case. Leo is experienced in representing individuals, corporate clients, municipalities and boards in land use meetings, hearings and other aspects of Municipal and Land Use litigation. She was also named NJ Herald’s 20 under 40.

William Knox is beginning his second year with Laddey, Clark & Ryan. Mr. Knox was listed as a Super Lawyer under his tenure at New Jersey Manufacturers’ Insurance Company, where he worked for over 30 years. Knox is a New Jersey Supreme Court Certified Workers’ Compensation Trial Attorney and heads the Workers’ Compensation Practice Group at the Firm, as well as handling estate and probate matters.

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 look through our site.  

In today’s job market, employers may already hold the upper hand because of the limited job openings.  In this stressed job market, some job applicants state that they would turn over passwords if it meant obtaining steady employment. Some current employees are prepared to do the same if it means keeping their jobs.

There is a potential for abuse anytime one party has greater bargaining power.  If employers endeavor to mine the personal lives of job applicants or employees through social media, the results could be harmful to all involved. Should employers require employees to turn over passwords to personal email accounts?  What about access to the internet browser’s history of websites viewed from a personal computer? Before undertaking any such practices employers should be very cautious.

The Federal Stored Communications Act already provides protections for unauthorized access to a facility that stores electronic communications.  This Act was used successfully inNew Jerseyfederal court by an employee who was required to give up her password to a MySpace account. The same law could be used by job applicants or employees who are forced to turn over a password or forgo employment. 

Facebook has revised its own privacy rules to prohibit requesting another user’s log-in information.  Violations of this policy may result in loss of the Facebook account and potential legal liability.  Employers who rely on social media for business should think twice about risking loss of access to a website and all employers should be concerned about potential legal liability.

Finally, job applicants and employees can seek assistance through the National Labor Relations Board.  The NLRB has recently taken a close look at companies who limit or prohibit employees from posting on social media websites about their employment. The NLRB has found that employees have a right to exercise their federal right to engage in concerted activities for mutual aid and protection through postings, including such things as complaining about their boss.  Companies who prohibited employees from any postings about the workplace were found to be in violation of the law.  An employer who requires current employees to provide passwords to social media websites could be found to have violated the law by chilling the employee’s right to engage in concerted activities.

These laws must be considered by employers and employees when an employer endeavors to delve into personal information by requiring passwords to social media websites. 

Potential consequences far outweigh any potential benefit for employers.  Job applicants or employees would likely be very cautious about what information was accessible through their account or terminate their accounts completely.

Although employers may feel that they could find information relevant to job performance on a social media website– the employer will also discover much information that is not related to job performance and information that could be used to discriminate against job applicants or employees.  In fact, employers may find themselves with more information than they care to have.

Companies should be concerned with whether a job applicant or employee can perform their job duties.  The personal lives of job applicants or employees is only relevant to employers to the extent it effects work performance.  Employers should not be snooping into social media websites in a fishing expedition allegedly trying to discover job-related information. Employers should hit the delete button on this practice.

Thomas N. Ryan, Esq. is Chairman of the Employment and Labor Practice Group at Laddey, Clark & Ryan, LLP.  Jessica A. Jansyn, Esq. is a member of the Employment and Labor Practice Group.

This article was originally published in the New Jersey Herald on April 15, 2012.

One challenge was recently struck down in the District Court for the District of Columbia, in National Association of Manufacturers v. NLRB, 2012 WL 691535 (D.D.C. Mar. 2, 2012). Although the decision is already being appealed by the National Association of Manufacturers, the deadline for employers within the NLRB’s jurisdiction to post the required notice remains April 30, 2012. The poster is available here: https://www.nlrb.gov/poster. For more information about which employers are required to post the notice, see https://www.nlrb.gov/faq/poster, or contact us.

Additional postings are helpful for employers, including wage and hour and discrimination laws.  Helpful websites for these posters include:

http://www.nj.gov/oag/dcr/posters.html#posters

http://lwd.dol.state.nj.us/labor/employer/content/

employerpacketforms.html

http://www.dol.gov/oasam/programs/osdbu/sbrefa/

poster/matrix.htm

We previously reported on the Morris County Sheriff’s Office v. Morris County PBA, Local 298 case, which found that Morris County could make certain unilateral changes in setting employee staffing and schedules to further the County’s goal of efficient allocation of resources. 418 N.J. Super. 64 (App. Div. 2011). The Appellate Division approved the unilateral action of the County to eliminate a past practice of permitting any employees to come to work on holidays and earn double time, even if there was no work for them to do. The Court found that eliminating this abusive practice furthered the County’s “essential duty of government to spend public funds” wisely.

In the Township of Franklin v. PBA Local 154 case, the police department worked a schedule of 4 days on duty and 4 days off duty. After an expert was hired by the Township to review efficiency, the Township approved a change in the scheduling which would be 4 days on duty and 2 days off duty. This would more efficiently distribute their workforce. However, it would result in the officers working approximately 160 additional hours each year and the Township did not propose to increase officers’ compensation for those additional hours. In its arguments to the Appellate Division, the Township relied on the Morris County case and a provision of the Collective Bargaining Agreement which stated “The 4 & 4 shift is for example purposes only and it is understood that management reserves the right to change shifts as needed.”

The Appellate Division distinguished the Morris County case because the scheduling change resulted in the officers working more hours without any increase in pay, whereas the Morris County case ended an abusive practice that did not diminish annual weekly work hours or adversely affect the contractual rate of pay. 

It is important to note that despite the contract language that reserved the Township’s right to change schedules, the Appellate Division considered the past practice of the parties which revealed that several years ago the parties had a 4 days on, 2 days off schedule and that the change to the 4 days on 4 days off was the result of negotiations between the parties and thus any change to that schedule had to be negotiated as well.

            While the Waiver Rule is welcome news to business owners and municipalities who have become mired in environmental over-regulation, environmental groups have vowed to fight the implementation of the Rule.

            The NJDEP is in the process of developing a review process which will include standardized forms to ensure consistency in processing waiver requests. Readers should know that there is no automatic right to a waiver and each waiver request will be considered on its own merits.

            The Rule will be published in the New Jersey Register on April 2, 2012 and will become effective on August 1, 2012. The NJDEP will not accept waiver requests prior to August 1.

            In future Business Alerts we will provide additional information regarding the implementation of the Waiver Rule as it becomes available. 

In an unpublished Appellate Division opinion, Hernandez v. MW Manufacturers, Docket No. A-2071-09T2 (Feb. 1, 2012), the Court reaffirmed that employers are not required to create a “light duty” position for a disabled worker.

In this case, Hernandez was injured on the job and was unable to come back to work as a machine operator. She exhausted her Family Medical Leave Act (“FMLA”) benefits and when she failed to return to work, MW Manufacturers terminated her. Hernandez filed a complaint with the New Jersey Division on Civil Rights, alleging violations of the New Jersey Law Against Discrimination. She alleged she was discriminated against due to her disability since her employer did not accommodate her disability by offering her a “light duty” office position when she could not fulfill the requirements of a machine operator position. The employer had allowed her to work a light duty position for three weeks before she went out on leave. Hernandez argued that the employer had in the past offered her a light duty position and therefore the employer should be required to offer the position to her indefinitely.

The Appellate Court upheld the decision of the Division on Civil Rights that no cause of action existed. The Court found that the temporary availability of a light duty position did not require the employer to continue that position indefinitely, and the employer was not required to create a light duty position for an employee where none otherwise existed.

The New Jersey Senate and General Assembly moved to have the case against them dismissed.  The court agreed with those legislative bodies and dismissed the claims based on the federal constitution against the New Jersey legislators because of legislative immunity – which is a doctrine that provides state legislators immunity from private suit on Constitutional claims.  The court also dismissed the claims based on the state constitution based on the federal Eleventh Amendment.  This Amendment bars federal courts from hearing suits against a state by its own citizens.  The court found the Eleventh Amendment extends to the State legislators as well as the State itself.

The federal court dismissed these claims based on jurisdictional and not substantive grounds.  Further, the claims against the State of New Jersey have not been dismissed.  The unions have made statements that they are considering appealing the issue to the Court of Appeal for the Third Circuit or refilling a complaint in state court.

A Morristown jury returned a $3,980,000.00 verdict for Richard Tufaro, 53 of Branchville for injuries he sustained when the elevator in which he was traveling dropped two and one half floors and suddenly stopped.  

On August 19, 2005, Tufaro was leaving his construction job at the Headquarters Plaza Hotel in Morristown when he got into the elevator and it malfunctioned causing the elevator to drop and the emergency braking system to engage.  As the elevator jolted to a stop between floors, Tufaro’s body was thrown into the metal instrument panel.

Tufaro suffered spinal injuries including herniated discs in his neck and back as well as a shoulder injury.  Board Certified Orthopedic Surgeon, Dr. James Dwyer testified that Tufaro’s injuries were permanent in nature and serious. 

“This is an important case because elevator maintenance companies have a responsibility to the community to keep their elevators safe.  When they fail to properly maintain their elevators, as in this case, people get hurt.  The elevator maintenance company is then responsible for that harm,” said Andrew Fraser, the attorney for Richard Tufaro and Richard’s wife, Sharon.

Fraser, partner at Laddey, Clark & Ryan in Sparta, filed the lawsuit against Schindler Corporation, the elevator maintenance company hired by Headquarters Plaza.  The lawsuit alleged that Schindler failed to maintain the elevator at Headquarters Plaza causing it to malfunction and caused Tufaro’s permanent injuries.

“This jury truly understood the severe and permanent impact this incident and these injuries had on the Tufaros’ lives,” said Timothy Dinan, Esq., who assisted Fraser with the trial.

“We are so grateful we chose Laddey, Clark & Ryan to represent us and tell our story.  We are also grateful to the jury for helping to make up for what has happened to me and my family in this case,” Richard Tufaro said.

The trial was presided over by the Honorable Donald Coburn, J.S.C. in the Morris County Courthouse in Morristown.  Attorney James DeNorscia of Hackensack represented the defendant Schindler Corporation. 

“It was a pleasure representing Rich and Sharon Tufaro.  Rich will never be the same man he was before stepping in that elevator on August 19, 2005, but we are glad that together with the jury, we could try to help the Tufaros to bring their lives back into balance,” said Fraser. 

The Personal Injury Practice Group at Laddey, Clark & Ryan including Fraser, his wife Lauren Fraser, Esq, Tim Dinan, Esq., and their staff of hardworking paralegals and assistants have been extremely successful in helping injured members of the community receive fair compensation. 

Andrew and Lauren Fraser have received some of the highest jury verdicts on behalf of injured people in Sussex County.

“This case, like all of our cases, is a true team effort,” Fraser said.

The National Trial Lawyers Association searches each state for individuals who exemplify superior qualifications, trial results, and leadership as a young attorney. Selection is based on a thorough multi-phase process, which includes peer nominations and combined third party research. 

“As an attorney in this community, it is such an honor to be named among the top lawyers in the State ofNew Jersey,” says Fraser. “I am humbled to know that the positive legal results I have obtained forSussexCountyfamilies have been recognized nationally.”

With husband, Andrew Fraser, Esq, Ms. Fraser has obtained some of the largest jury verdicts for injuredSussexCountyresidents in the county’s history.  Andrew Fraser was also recently selected by the National Trial Lawyers Association as one of the top 100 Lawyers in NJ.

The National Trial Lawyers: Top 40 under 40 provides accreditation to those distinguished young attorneys in the areas of civil plaintiff and/or criminal defense law and applauds them for their hard work and honored achievement.

Since 2008, Ms. Fraser has consistently been listed as one of NJ Monthly Magazines’ Super Lawyer Rising Stars in the legal profession for her work representing people who have been permanently injured through no fault of their own.  In 2009, she was recognized as one of the New Jersey Herald’s “20 Under 40” outstanding business leaders.  

The seminar will be held on February 28th at the Holiday Inn Budd Lake from 8:30 -11:30am. Continental breakfast and registration will begin at 8 am.

Attorneys will present an overview of the Worker’s Compensation system and twenty concrete steps all employers can take to keep Worker’s Compensation costs down.  Learn how small changes to current employment practices can help keep Worker’s Compensation costs down, including: 

• Procedures for reporting;
• Awareness of your employees’ conditions and needs;
• Company morale;
• Use of annual evaluations;
• Termination documentation; and
• Effective use of your relationship with your Worker’s Compensation insurance carrier.

This seminar will also highlight additional issues related to injured employees, including entitlements to leave under the federal Family Leave Act and the New Jersey Family Leave Act.  Further, related issues arise when an employee becomes temporarily or permanently disabled under the Americans with Disabilities Act and theNew JerseyLaw Against Discrimination.  The seminar will address the rights and responsibilities of employees and employers regarding these important issues.

 For more information please call 973-729-1880 or check Laddey Clark & Ryan’s website at www.lcrlaw.com.

The Appellate Division enforced an arbitration agreement entered into by the employer and a service manager for discrimination and whistleblower claims in Wagner v. Open Road Auto Group, No. A-5312-10T3 (App. Div. Jan. 10, 2012).

After the employee began employment, he signed a one-page arbitration agreement.  Two years later the employee was terminated and filed a complaint alleging violations of the New Jersey Law Against Discrimination as well as the Conscientious Employee Protection Act.  The lower court denied the employer’s demand for arbitration because the arbitration agreement did not specifically state that it covered claims arising from termination of the employment relationship.

 After reviewing prior cases where arbitration was denied based upon the language of the arbitration agreement, the Appellate Division found for the employer because the agreement specifically included claims of harassment and discrimination, despite its failure to specifically include claims related to employment termination or retaliation.

 When properly drafted, an arbitration agreement can require an employee to arbitrate any claims with regard to the employment relationship.  Arbitration can be beneficial to employers in that it is generally a faster and more efficient way to resolve employment issues.  However, this case demonstrates that without proper drafting, an arbitration agreement may be ineffective in requiring arbitration of all claims.

Laddey, Clark and Ryan is a law firm which has chosen to limit its practice to specific areas of the law; one of which is Employment Law. Each of our attorneys is well versed in his or her practice area. The Employment and Labor Practice Group attorneys regularly speak, write, advise and defend our clients on a wide range of employment law issues, including labor relations and contract negotiations.  We deliver the expertise, not the rates, of a national employment law firm.

Collective negotiation agreements with unions can provide for the single biggest expense for any business.  The cost of employee compensation and benefits in addition to job security and other provisions of a collective negotiation agreement will be with an employer for the duration of the contract and will be the basis of the subsequent contract’s provisions. 

Our Employment attorneys have extensive experience with both public and private sector union relations – from contract negotiation and interpretation, to discipline of employees, hearings and arbitration.  Including experienced legal counsel in the negotiation process of a collective negotiation agreement will serve as a cost-efficient way to minimize the employer’s cost of administering the collective bargaining agreement.  Unions typically bring to the negotiation table seasoned negotiators with years of experience, and the employer should be equally prepared for the negotiation sessions.

Laddey Clark & Ryan is also prepared to guide employers though difficult decisions regarding contract administration and discipline of employees.  Our Employment attorneys are also experienced with proceedings before the National Labor Relations Board and the NJ Public Employment Relations Commission.  We can guide you through any hearings or arbitrations related to the union relations.

Practice Group Attorneys

Thomas N. Ryan, Esq.
Ursula H. Leo, Esq.
Michael S. Garofalo, Esq.
Jessica A. Jansyn, Esq