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Relocating Out of State With Children After Divorce

Published on: May 11, 2016 | by James McGlew, II

Over the years there have been evolving standards used in judicial determinations as to what grounds will be sufficient to permit a parent to relocate out-of-state with their child. Presently, New Jersey has two different standards to apply when these types of matters come before the court. A determination first needs to be made by the court as to whether the parents have a traditional custodial relationship or whether the parents have a shared custodial relationship.

When one parent is clearly the primary custodian of the children (traditional custodial relationship), that parent must satisfy a two-step standard. He or she must demonstrate that they have a good-faith reason for their request to relocate and that their relocation will not be detrimental to the child’s best interest. If the parent can satisfy the Court that they have met the standard, the Court will then examine several factors as to whether or not to permit the relocation.

If the parents have a shared custodial relationship with their child, then the right to relocate with the child from New Jersey requires an actual change in the custodial agreement between the two parents. If this is the case, the parent seeking to effectively change or modify the existing custodial relationship with the child has the threshold requirement to show that there is now a substantial change in circumstances and that the best interests of the child are served by a change in the existing custody agreement.

Employer’s Defense To Disability Discrimination Claim Doomed By Its Own Job Descriptions: Is It Time To Review And Update Your Job Descriptions?

Published on: May 10, 2016 | by Kathleen M. Connelly

In light a recent decision of the New Jersey Superior Court, Appellate Division, in Sheridan v. Egg Harbor Township Board of Education, it certainly is.

The Facts: Barbara Sheridan, an obese individual, was employed for eight years as a custodian by Egg Harbor Township Board of Education (the “Board”). After observing Ms. Sheridan breathing heavily and turning red while performing her custodial job duties, her supervisor became concerned that she might be unable to climb ladders, would have trouble climbing stairs, and could injure herself or others while attempting to complete her job duties. In response to these concerns, the Board required Ms. Sheridan to undergo a fitness for duty examination (“FDE”) administered by an independent physician. In conducting the FDE, the physician relied upon a job description provided by the Board detailing the physical tasks required of all custodians in the district, including a requirement to lift and carry 75 pound objects a distance of 50 yards. Ms. Sheridan failed several portions of the FDE, prompting the Board to conclude that she was physically incapable of performing the duties of school custodian and terminated her employment. Ms. Sheridan filed suit alleging she was discriminated against because of her obesity in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. The trial court concluded that the Board was justified in relying upon the results of the FDE in reaching its termination decision and dismissed the case. Ms. Sheridan appealed.

The Appeals Court’s Decision: In reversing the favorable decision for the Board and sending the case back for trial, the Appellate Division concluded that while an FDE could provide a legitimate, non-discriminatory basis for the Board’s termination decision, the FDE had to be based upon a “fair and realistic” job description for the position in question. In this case, the court held that “reasonable jurors could conclude that the more strenuous exercise of lifting seventy-five pounds for fifty yards, as was tested in the FDE here, is not a fair or realistic physical expectation to have for a school custodian.” In addition, the Board’s principal witness testified that the only time she could recall custodians lifting 75 pounds was twice a year to lift paper deliveries, which were then loaded directly onto carts. Finally, while the Board pointed to concerns about Ms. Sheridan’s ability to climb ladders, the FDE did not assess her ability to do so. The Appellate Division reasoned that when an employer chooses to rely upon an FDE as a legitimate reason for terminating an employee, the job description used to conduct the FDE must accurately correspond to the day-to-day job duties and physical demands of the position, factors the court found lacking in this case. Moreover, the FDE must also assess the physical requirements relied upon by the employer as a basis for its termination decision.

New Jersey Appellate Court Clarifies Employers’ Limitations in Demanding Fitness-For-Duty Exams From Employees

Published on: April 25, 2016 | by Sergio D. Simões

In a recent published decision, the New Jersey Appellate Division clarified the circumstances under which an employer’s directive that an employee submit to a psychological for fitness-for-duty examination serves a “legitimate, job-related business purpose” as required under the Americans With Disabilities Act (ADA) and the EEOC’s Enforcement. The case, In re Paul Williams, Township of Lakewood, involved a Township of Lakewood truck driver who was sent for a psychological fitness-for-duty examination eight months after the Township received an anonymous letter from an alleged co-worker complaining that the employee was mentally unstable and a threat to other co-workers. Without the employee’s consent, the Township scheduled the psychological examination and a follow-up meeting, and threatened the employee that if he failed to attend both appointments he would be disciplined. The employee refused to comply, claiming that the examination was not job-related or a business necessity and thus was in violation of his rights under the ADA. Following a hearing, the Township terminated the employee.

The employee appealed to the Office of Administrative Law (“OAL”), which reinstated the employee to his former position because the evidence showed that: (1) the employee’s work performance was satisfactory; (2) the truth of the allegations in the anonymous letter could not be verified; and (3) the Township’s demand for a psychological fitness-for-duty exam was not related to his work performance or to any specific allegation of psychologically disruptive behavior. Following an additional appeal, the matter ultimately ended up before the New Jersey Appellate Division, which affirmed the OAL and held that, under the ADA, an employer cannot require an employee to undergo medical tests unless they are job-related and consistent with legitimate business necessity. Here, the Appellate Court faulted the Township for ordering the employee to undergo a psychiatric examination based solely upon information contained in an anonymous letter, precisely the kind of “innuendo and rumor that the EEOC has advised employers is insufficient to support a mandatory evaluation.” The Williams holding makes clear that employers must be careful and judicious in demanding that employees submit to fitness-for-duty examinations. Such examinations may only be required when the employer has a reasonable belief, either through direct observation or reliable information from credible sources, that the employee’s mental state or physical condition will either affect his or her ability to perform essential job functions or pose a direct threat to others. Employers must engage in a complete and objective assessment, untainted by general assumptions about the employee’s medical condition, prior to requiring the psychological examination.

In an era of increasing workplace violence, this decision places employers in a difficult position. However, employers who receive anonymous tips or other information suggesting that an employee is not mentally stable must resist knee-jerk reactions and secure the necessary observations and information that will justify requiring the employee to undergo an medical examination. Moreover, employers are encouraged to consult legal counsel for guidance on whether the examination will pass muster under the ADA.

New Jersey Appellate Division Clarifies Law on the Liability of Property Owners Whose Vegetation Encroaches on the Neighbor’s Property

Published on: April 20, 2016 | by John J. DeLaney, Jr.

Recently, the New Jersey Appellate Division, in the case of Scannavino v. Walsh (Docket No. A-0033-14T1), issued a fourteen page Opinion (Approved for Publication on April 14, 2016), setting forth the law on the liability of property owners whose trees/vegetation encroaches on the neighbor’s property. In that case, plaintiff alleged that defendants improperly allowed the roots of trees on their property to cause damage to a retaining wall between the parties’ properties. Because the defendants did not plant or preserve the trees, they were deemed a natural condition for which the defendants were not liable. The Opinion is very helpful in dealing with many situations involving encroaching trees/vegetation between neighbors.

There was a three day bench trial which gave the Appellate Division many facts from which to analyze the law on the subject, and most particularly the law on nuisance. The Appellate Division noted that when analyzing nuisance claims, involving vegetation and trees, New Jersey courts are guided by the principles set forth in the Restatement (Second) of Torts. The court recognized that the Restatement (Second) of Torts “draws a distinction between nuisances resulting from artificial and natural conditions. The former are actionable; the latter are not.” Thus, New Jersey courts have held that injury to an adjoining property caused by roots of a planted tree are actionable as nuisance. Similarly, a property owner will be liable for dangerous conditions caused by hanging branches or matter dropping from trees which are not deemed “natural”, when specifically planted for the purposes of the defendant land owner.

There are fine lines of liability, which require an analysis of the specific facts of each case. There is no liability for the natural growth of tree roots; instead it is the positive acts – the affirmative acts – of the property owner in the actual planting of the tree or vegetation, which imposes liability. For example, as set forth in the Restatement (Second) of Torts §840 and noted in the Walsh case, where a possessor of land or his predecessor has planted a number of eucalyptus trees near the boundary line of B’s land and the roots of the eucalyptus trees grow onto B’s land causing damage, the landowner is subject to the rule of liability for artificial conditions, since the eucalyptus trees are not a natural condition. In contrast, there is no strict liability in nuisance where a branch of the defendant’s tree falls onto the neighbor’s garage. Burke v. Briggs, 239 N.J. Super. 269, 275 (App. Div. 1990). But then, there are gray areas under the Restatement (Second) of Torts at §363 – which may permit liability for damages caused by a tree not planted by the possessor of land where the possessor has “preserved” the tree. Liability may be imposed because the preservation is some sort of affirmative act (e.g. fertilizing or maintenance to keep the tree alive) on the part of the defendant, and not simply its failure to act.

Funding Your Child’s College Education After Divorce

Published on: April 12, 2016 | by James McGlew, II

Each spring thousands of New Jersey high school seniors undergo the process of applying to colleges and universities to continue their education. The cost of college tuition, room and board and related expenses can be exorbitant. While the financial strain of funding a child’s higher education to intact families is significant, it is often more of a burden for divorced parents of soon-to-be high school graduates. Over 30 years ago, the New Jersey Supreme Court determined that divorced parents could be held financially responsible for the college education of their children. In analyzing the reasonableness and level of such an obligation, the Court set forth a number of factors to be weighed by Judges. These factors include, but are not limited to:

The amount sought by a child for the cost of such college education
The financial ability of the parent or parents to pay those costs

EPA Proposes Changes to Accident Prevention and Risk Management Plans

Published on: March 24, 2016 | by David R. Pierce

The United States Environmental Protection Agency has proposed new changes to the requirements for the accident prevention programs and risk management plans under Section 112 of the Clean Air Act as a result of a review initiated in response to Executive Order 13650. One of the targets of Section 112 of the Clean Air Act was the reduction and prevention of industrial incidents involving hazardous chemicals.

The rules promulgated by the EPA would subject stationary sources that have more than the threshold quantity of a regulated substance in process to comply with, among others, various accident prevention, emergency response coordination, training and risk management requirements. Facilities subject to these requirements are further divided into Program 1, 2 and 3 facilities, depending upon the risk to public receptors and their history of accidents with off-site consequences, whether they are subject to OSHA’s Process Safety Management standard or their classification within any one of ten different certain North American Industrial Classification System codes specified in the regulations.

The proposed rules will impose significant new compliance obligations on any regulated facility and fall within one of three basic concepts:

Unmanned Aerial Vehicles and the Construction Industry

Published on: March 22, 2016 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Lindabury Construction law attorney Chloe Mickel authored an article for the American Bar Association’s Forum on Construction Law which examined the beneficial uses unmanned aerial vehicles (“drones”) can provide.

While drones are rapidly becoming more commonplace in both the consumer and business markets, the construction industry has been slow to integrate them into their day-to-day operations. The benefits drone technology provides to those in the construction field include the faster completion of site surveys; the ability to monitor construction progress in real time and the capture of high quality, unique images for site marketing.

Read Chloe’s article, Despite Clear Benefits, the Construction Industry is Slow to Integrate Unmanned Aerial Vehicles into Projects, which was published in the Spring 2016 edition of the Forum’s newsletter, Under Construction.

Pressing an Employee About Retirement Can be Evidence of Age Discrimination

Published on: March 12, 2016 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Employers are often tempted to make inquiries to older employees about their retirement plans. At times these inquiries are motivated by a desire to be prepared for future staffing needs in the event of a retirement, but at others they are driven by a desire to rid the workplace of “dead wood” to make room for “fresh talent.” However, federal and state law prohibit age discrimination in employment and employers must tread carefully when making any inquiries about an employee’s retirement plans. Although an employer is permitted to make proper inquires under certain circumstances, one employer found out how easily these inquires can bu used as evidence of age discrimination.

Recently, the District Court of New Jersey denied Defendants, Wildwood Beach Patrol and two individual employees, summary judgment on Plaintiff Louis Cirelli’s age discrimination claim, on the basis that Plaintiff offered sufficient evidence of discriminatory animus. Along with a reduction in Plaintiff’s duties and responsibilities, the court noted that Defendants’ questions to Plaintiff regarding how long Plaintiff, who was 66 years old, intended to work for the Wildwood Beach Patrol was evidence of unlawful discriminatory treatment constituting a discriminatory animus sufficient to deny Defendants’ motion for summary judgment.

Facts: Plaintiff Louis Cirelli, age 66, was employed by the Wildwood Beach Patrol for 48 years. According to Cirelli, in 2011 the Commissioner of Public Safety and Cirelli’s immediate supervisor asked him when he was going to retire, told him to concentrate on his administrative duties, and delegated his operational duties to the Captain of the Beach Patrol who was 20 years younger. At a 2012 meeting the Captain asked Cirelli “just how long are you going to be hanging around here?” According to Cirelli, at that same meeting the Captain presented him with a list of “Best Practices” for the Beach Patrol. Finally, Cirelli maintained that his name was not included on the Beach Patrol website and on training information and forms provided to new lifeguards. Cirelli had net been subject to any prior reprimands or discipline.

Locating Hidden Marital Assets in Divorce

Published on: March 9, 2016 | by James McGlew, II

One of the greatest concerns to individuals who are divorcing or contemplating divorce is the possibility that their spouse is hiding or dissipating assets. While such conduct may be the exception rather than the rule such actions on the part of one spouse can have extreme financial consequences to the detriment of the other.

In those cases where there is a basis for suspicion, as experienced matrimonial attorneys we at Lindabury can take the initial steps to investigate whether a spouse is attempting to hide marital assets. In those divorces were the suspicion is confirmed, we may recommend the use of a forensic accountant, investigative expert, or an “IT” (information technology) professional to discover the extent to which this conduct has occurred. Lindabury’s Family Law Group has decades of experience advocating on behalf of clients involved in contentious divorces.

KNOW THE SIGNS: Hiding marital assets can be an attempt by one spouse to gain the upper hand in a divorce. Some of the more common signs are regular and consistent withdrawal of cash from a checking account or at an ATM, unexplained travel expenses, payments to unknown parties or friends or relatives for no plausible reason and the payment of debt for reasons of which you are unfamiliar or unaware.

The Use of Third-Party Employees and Joint Employer Status Under Fair Labor Standards and Family Medical Leave Acts

Published on: March 9, 2016 | by Kathleen M. Connelly

To escape the economic and administrative burdens of the employer-employee relationship, employers increasingly turn to “shared employee” arrangements with Professional Employee Organizations (PEOs), staffing agencies, independent contractors and other third party vendors to supply temporary workers. In doing so, employers typically assume that the third-party provider is the “employer” of the temporary worker, and therefore the obligations arising under wage and hour, family/medical leave, discrimination and other employment laws will be borne solely by the third-party provider. Such assumptions may prove costly, as courts and administrative agencies often look past efforts to alienate the employer-employee relationship to find both businesses are the employer with joint responsibility for compliance with employment laws.

In two prior posts we discussed the respective tests adopted by the NLRB and the Third Circuit for determining when two or more entities can be deemed “joint employers” equally liable for violations of employment laws. You can read about the Third Circuit’s Darden Test here and the NLRB’s “joint employer” standard here. Now the United States Department of Labor (DOL) has issued new guidance on when a joint employer relationship – with attendant joint responsibilities – exists under the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). These recent pronouncements are the latest efforts by governmental agencies and the courts to grapple with the shared worker trend in the modern workplace.

THE DOL’s INTERPRETIVE GUIDANCE ON JOINT EMPLOYER STATUS UNDER THE FLSA