mclaughlin & nardi, llc newsletter april 2015

McLaughlin & Nardi, LLC April 2015

Trade Secrets in the Realm of Commercial and

Employee-‐ Employer Disputes

Newsletter

A Basic NJ Estate Plan 1 New Jersey’s Different Treatment of

Employee Arbitration 3

Employee or Independent Contractor? 5

A Basic New Jersey Estate Plan By Jennifer C. Meusel Esq.

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An estate plan carries out a person's wishes at the time of their death and appoints people to make decisions during life.

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

Last Will and Testament. The fundamental document is the last will and testament. The will takes effect upon death. The will must meet the formal requirements under

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New Jersey law in order to be effective in New Jersey The will designates people and their roles: • Beneficiaries - recipients of the decedent's assets; • Executors - the persons who will probate the Will, collect the estate assets and distribute the estate assets to the beneficiaries; • Trustees - the persons who will manage the assets placed in a Trust usually for the benefit of either the surviving spouse or the children or both;

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• Guardians - the persons who will care for minor children until they reach the age of majority (which is age 18 in New Jersey).

Durable Power of Attorney. The power of attorney is in effect when a person is alive; it becomes effective when it is signed. When a power of attorney is "durable", it remains in effect even if the person is incapacitated. The durable power

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of attorney authorizes the people selected to handle your financial matters. Common tasks include banking, including writing checks and paying bills, real estate, trading investments, communicating with social security, pension benefits departments, Medicaid/Medicare, and the IRS, hiring accountants, attorneys, and financial advisors, and any other related financial need.

It is helpful to have another person authorized to do this, but it should be a trusted person, such as a spouse or adult child. A durable power of attorney is important when a person becomes incapacitated. It allows finances to be managed without having to seek authority from a court, and before the finances become a problem.

Living Will and Medical Power of Attorney. The living will and health care proxy combines two documents into one. First is the living will which allows a person to make difficult medical decisions for themselves and relieves their family from the burden of making difficult decisions. A living will allows a person to direct whether or not they would want "heroic" medical measures, including artificial life support and all available medical procedures to sustain life in the event the person has an incurable severe medical condition. The second part is the health care proxy, sometimes called a medical power of

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attorney, which appoints people to make medical decisions in the event of incapacity (such as a coma).

The last will and testament, durable power of attorney, and living will and health care proxy are essential for New Jersey estate planning and administration. Depending on the size of your estate, special needs of disabled beneficiaries, and other factors, more complicated estate planning, including the use of trusts, may be necessary.

For more information, contact the offices of McLaughlin & Nardi, LLC, 37 Vreeland Avenue, Totowa, New Jersey, by telephone at 973-890-0004 or visit our website.

Jennifer C. Meusel Esq. Of Counsel

Jennifer Meusel is of counsel to the firm. Jennifer’s practice focuses on estate planning,

probate and estate administration, as well as transactional work including commercial and

residential real estate sales and leasing, business formations and sales of businesses and business assets. Jennifer takes pride in her

commitment to providing individualized and personal attention to her clients.

If you would like to make an appointment with Jennifer please

contact: (973) 890-‐0004 or [email protected]


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New Jersey’s Different Treatment of Employee Arbitration Arguments and Insurance Policies is Difficult to Reconcile

By Maurice W. McLaughlin Esq.

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New Jersey and Federal law have established a strong legal policy in favor of arbitration. New Jersey's courts, like the federal courts, regularly uphold arbitration agreements in employment contracts. They have repeatedly enforced these agreements and do not consider them "contracts of adhesion." This is starkly different than how New Jersey's courts treat insurance policies, and ignores the long-established legal principles upon which its analysis of insurance policies rests.

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

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

An employee and employer, especially a large, multi-national corporation such as Sandvik, simply do not have equal bargaining power. There is a large labor pool for employers to choose from, especially in these troubled times. This gives the employer the upper hand. Employers can - and do - tell employees to agree to arbitration or go look for work elsewhere; this is no choice at all for most employees. Indeed, this is all the more true when an arbitration requirement is adopted as a policy after an employee has already started work and is given the choice of either agreeing to arbitration or being out of a job, despite the years, and often decades, invested by the employee.


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Given the inherent unequal bargaining power, it is difficult to understand why New Jersey's courts - which are generally protective of worker rights - refuse to protect employees in this area, which involves a forced surrender of a constitutionally protected right.

This treatment stand in stark contrast to New Jersey courts' treatment of insurance policies. New Jersey's courts have held that as a general rule insurance policies are contracts of adhesion because they are given on a take it or leave it basis, presented on pre-prepared forms with unchangeable terms, customers in many cases are required by law or necessity to carry insurance, and there is inherently unequal bargaining power. As New Jersey's Supreme Court explained in Sparks v. St. Paul Insurance Co., "They [insurance policies] are contracts of adhesion, prepared unilaterally by the insurer, and have always been subjected to careful judicial scrutiny to avoid injury to the public."

It is difficult to reconcile the different treatment. The compulsion to sign is greater for an employee than an insured - a person needs to eat, so they need a job; even though a driver is required to carry auto insurance, she can always take the bus to work. Indeed, enforcement of an insurance policy generally will not deprive the insured of a constitutionally protected right, while enforcement of an arbitration

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agreement will take away an employee's right to a jury of her peers.

While having employment disputes decided in arbitration allows court to spend more time on the cases on their already overcrowded dockets, New Jersey's courts should not back away from protecting employees - and employers - who if they choose to exercise their constitutionally protected right to a trial by a jury of their peers.

McLaughlin & Nardi, LLC's attorneys are experienced in representing both employers and employees in all aspects of their employment relationship, from hiring to litigation and arbitration. To learn more about what we can do to help, please visit our website or contact one of our lawyers at (973) 890-0004.

Maurice W. Mclaughlin Esq. Founding Member

Maurice W. McLaughlin is a founding member of McLaughlin & Nardi, LLC. He handles a wide

range of matters including complex negotiations, litigation and transactions. Maurice leads

the firm’s litigation practice. Maurice is admitted to the bars of New Jersey, New York, Massachusetts and the

United States Supreme Court. He has practiced in state, federal and administrative courts

throughout the Northeast.

To make an appointment with Maurice please contact:

(973) 890-‐0004 or [email protected]


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-‐ Ipsum

Free Speech Vs. False Statements: New Jersey’s Libel, Slander, and Defamation Law Pauline M.K. Young Esq.

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Just about everyone has been called a name or had someone say something about them that wasn't true, but when does that false statement become actionable defamation?

Under the law in New Jersey, defamation requires at least three people. It occurs when someone ("A") makes a specific factual assertion about another ("B") to a third person ("C"). The statement cannot be a joke or an expression of opinion; it must be something that is capable of being proven true or false, and which is actually false.

To establish a claim for defamation, B must show that A made an untrue statement of fact to C, that this statement included assertions that were "defamatory," meaning they were negative and harmful to B's reputation or caused monetary losses, and that A made this statement either knowing it was false, or while failing to exercise care in determining whether it was true or false. In some cases, B must also show and prove that she had incurred actual damages.

Therefore first, the statement must be "published," i.e. made to a third party. Although it need not be publicized for the world to read in Time Magazine or hear on the six

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o'clock news, someone else must hear or read it. (If the third person reads the defamatory statement, the defamation is called "libel," if she hears it, it's called "slander.) Thus, A calling B a derogatory term or making a false statement of fact directly to B, is not defamation, because no third party heard it.

Next, the statement must be false. Even if harmful to a person's reputation, a statement that is true is absolutely immune from a defamation claim by the First Amendment of the United States Constitution which protects free speech. Therefore, "truth" is a nearly unbeatable defense to a defamation claim.

However, once it is ascertained that the statement was false and "published," it has to be determined whether it was sufficiently defamatory. It is not enough that B's feelings were hurt or that B was embarrassed by the statement, it must be shown that C viewed B less favorably as a result.

This determination takes into consideration the person being defamed and her reputation, the circumstances in which the statement was made, the form and context of the statement, and the reasonable interpretation of the people who heard or read the

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statement. A statement may be defamatory if it causes the loss of the confidence and good will in which the victim was held by others, causing a negative impact of that person's reputation in her community or workplace.

Further, A must have made the statement knowing that it was untrue, or failing to take any steps to check. This protects people when they unknowingly make false statements. If a person has taken all reasonable care to ascertain the truth, then it would be unjust to penalize her.

Sometimes, it is enough to prove defamation without having to prove actual damages if the defamation is so severe and egregious that damages are presumed. This kind of statement is called defamation, slander, or libel "per se."

In New Jersey, four categories of statements qualify as defamation per se including statements that a person: (1) committed a crime; (2) has a loathsome disease; (3) engaged in serious sexual misconduct; or (4) engaged in conduct or having a trait that in incompatible with B's business.


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These types of statements are considered so clearly defamatory that B's reputation must have been harmed by it.

The attorneys at McLaughlin & Nardi, LLC are experienced with the law of defamation and are familiar with its evolution in New Jersey. To learn more about what we can do to help, please visit our website, contact one of our lawyers at (973) 890-0004, or email us at [email protected].

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Pauline M.K. Young Esq. Associate

Pauline M.K. (Kohl) Young is an associate at McLaughlin & Nardi, LLC. Pauline brings a unique mix

of intelligence, discretion, diligence and street smarts to

our firm. Pauline handles a wide range of matters including

litigation, real estate, business formations and transactions,

employment law, and collections law. Pauline aids individuals and

businesses by providing personalized services to fit the unique needs of each client. successfully mediated several

employment cases.

To make an appointment with Pauline please contact:

(973) 890-‐0004 or [email protected]


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37 Vreeland Avenue Totowa, NJ 07512

Phone: (973) 890-‐0004

Fax: (973) 256-‐3641

Email: [email protected]

mclaughlin & nardi, llc newsletter april 2015

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