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EMPLOYMENT LAW: RACE DISCRIMINATION, SEXUAL HARASSMENT,
UNEMPLOYMENT BENEFITS (AND APPEALS), WORKPLACE VIOLENCE, HOSTILE ENVIRONMENT, WRONGFUL TERMINATION, CONSTRUCTIVE DISCHARGE
NEW JERSEY LAW AGAINST DISCRIMINATION: The LAD prohibits unlawful employment discrimination based on an individual's race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, marital/civil union status, religion, domestic partnership status, affectional or sexual orientation, gender identity and expression, atypical hereditary cellular or blood trait, genetic information, liability for military service, and mental or physical disability (including perceived disability, and AIDS and HIV status).
NEW JERSEY CONSCIENTIOUS EMPLOYEE PROTECTION ACT (CEPA): The CEPA prohibits employers from taking adverse employment actions against employees who disclose, object to, or refuse to participate in certain actions that the employee reasonably believes to be either illegal or in violation of public policy.
Q. I was terminated from my job. Can I sue?
A. Even though being terminated from your job always feels wrong, it does not mean that it was illegal. In most states, employment is “at will”, which means that the employee could be fired for any reason or without a reason. However, employers cannot discriminate based on age, race, sex, national origin, disability, or because an employee has “whistle blown” (reported illegal activity of the employer), or filed a workers’ compensation claim.
Q. What if the legal services are too expensive for me?
A. If Law Offices of Yelena Perchuk, Esq. would, upon evaluation of your case, decide to represent you, and if the court will rule in your favor, the legal fees would be paid by the employer. You would also be eligible for back pay, compensatory damages, punitive damages, reinstatement (if you still wish to work there), etc.
Q. How I am supposed to know if I am a victim of wrongful termination?
A. Here are some pointers for you:
1. You feel you were discriminated because of your age, race, sex, disability, national origin, or religion.
2. You feel you were terminated after complaining about harassment or any other form of discrimination.
3. You feel your employer is retaliating for filing a complaint against your employer violating local laws (i.e.whistleblowing).
5. You feel you were terminated for refusing to perform an illegal or unsafe act for your employer.
6. You feel your employer fired you for taking time off for military service, voting, illness of a child, or your own long-term illness.
7. You believe it is going to take many months or years to find comparable employment (because your employer would give you bad references or would badmouth you), and thus the economic harm you are going to suffer is significant.
8. You were seriously emotionally traumatized as a result of how you were treated at work.
9. The employer has offered you some severance benefits but wants you to sign a Separation Agreement containing a release giving up your legal rights.
10. New Jersey Workers Compensation Act, N.J.S.A. 34:15-1 et. seq., (“the Act”) requires employers to compensate their employees for personal injuries caused by an “accident arising out of and in the course of their employment,” without proof of fault. Therefore, it is unlawful for an employer to discharge or discriminate against an employee because he or she has claimed or attempted to claim worker’s compensation benefits from his or her employer.
11. For violations of the Act, employers are subject to fines and / or imprisonment of up to 60 days. The Act provides for reinstatement with back pay for any employee who is the subject of such discrimination. An employee discriminated against on account of such discrimination has a right to sue for wrongful discharge.
12. The New Jersey Workers’ Compensation Act provides workers with a no-fault insurance program that delivers benefits to anyone who suffers from an illness or injury while at work or while performing job-related duties. These benefits include medical expenses, lost wages and death benefits to family members. In exchange for these benefits, workers agree that they will not file a civil lawsuit against their employers for damages unless the injury or illness was intentional.
13. Your employer should be notified immediately after the occurrence of a work-related injury or illness, and a request should be made for medical treatment. The employer’s insurance carrier will evaluate your case if the injury causes you to miss more than seven days of work. However, workers compensation benefits should never be accepted without first consulting a reliable and experienced NJ workers' compensation attorney.
Q. What work environment is officially considered to be hostile?
A. A hostile Work Environment is real, if:
1. An employee fears going to work because of the offensive, intimidating, or oppressive atmosphere generated by the harasser.
2. The conduct must be so objectively offensive (sufficiently severe or pervasive), as to change the conditions of the individual’s employment, in the form of discriminatory harassment toward one or more employees based on inclusion in a protected class.
3. Conduct that interferes with an individual’s work performance and makes it hard for you to concentrate and focus on your work, and creates an intimidating, or offensive work environment.
4. A hostile work environment must be caused by discriminatory workplace harassment based on race, color, sex, age, religion, national origin, disability, genetics; or it must be caused by retaliation in violation of a discrimination law.
5. The victim or witnesses typically must reasonably believe that tolerating and even promoting hostility in the workplace is a condition of continued employment. In other words, the victim or witnesses typically must reasonably believe that they have no choice, but to endure a hostile workplace in order to keep their jobs.
Q. After what I believe, was a wrongful termination, I applied for the unemployment benefits and even started receiving them, but my employer disputed it, saying all kind of lies, and I lost. What my next step should be?
A. If you feel that you were terminated wrongfully, and then your employer deceived the unemployment agency, you should contact an attorney who would immediately file a lawsuit for the wrongful termination and would help you file an appeal to reinstate your unemployment benefits. Call the Law Offices of Yelena Perchuk for an initial consultation. We will meet with you to discuss your concerns.
Obtaining the NJ State Unemployment Compensation is your civil right. Consequently, when an employer lies to block you from accessing the NJ State Unemployment Compensation, this employer strips you of your civil right.
The Unemployment Compensation Laws were created to make obtaining benefits easier, but a ruthless, dishonest employer can manipulate the process if you don’t have protection that only an attorney can provide.
The Appeal Tribunal is the first appellate level within the Department of Labor and Workforce Development for deciding unemployment insurance benefit disputes.
After filing a claim for Unemployment Insurance, an individual’s entitlement for such benefits is decided. Under the Unemployment Compensation Law, the claimant and employer have the right to file an appeal to the Appeal Tribunal from any such determination of entitlement.
The appeal must be filed in person or by writing to a local unemployment office within ten (10) days from the date the determination was mailed or seven (7) days from its delivery. If the appeal is not filed within the appeal periods, an explanation of why it was not filed within that time limit should accompany the appeal. An appeal that is filed late, without good cause, may be dismissed by the Appeal Tribunal.
The New Jersey Law Against Discrimination protects employees of New Jersey from unlawful discrimination in the workplace. New Jersey discrimination laws make it illegal to discriminate against an employee because of his or her age, ancestry, military service, color, creed, disability, marital status, domestic partnership status, national origin, sex, sexual orientation or gender identity. In order to have a claim for violation of the New Jersey Law Against Discrimination, the discrimination complained of must be based upon one of the specifically enumerated characteristics.
The New Jersey Law Against Discrimination not only protects employees who work in New Jersey but also the individuals who are seeking employment in New Jersey.
Q. Who is not protected under the New Jersey Law Against Discrimination?
A. Independent contractors are not considered employees and therefore do not receive the protections provided under the New Jersey Law Against Discrimination.
Q. I mailed a letter to my employer stating and describing the acts of race discrimination and violence toward me from a co-worker (my employer witnessed all of that and did not prevent it). In that letter, I also blamed my employer for not taking action to stop and prevent my co-worker from calling me "nigger", "lazy" and "stupid". My employer just ignored my letter, so the racial abuse by a co-worker worsened. What are my rights?
A. Employers must conduct a complete and thorough investigation into any complaint of unlawful discrimination.
Your employer will be in violation of the New Jersey Law Against Discrimination if he or she permits a hostile work environment to be directed at one or more of its employees based upon a protected characteristic of the employee. The New Jersey Law Against Discrimination requires New Jersey employers to have in place a clear and accessible anti-discrimination policy. If none of this has been done by your employer, you should contact the Law Offices of Yelena Perchuk, Esq.
PERSONAL INJURY QUESTIONS AND ANSWERS:
Q: Is there a minimum personal injury settlement amount?
A: No, there is no minimum or maximum settlement amount. The amount of a settlement in a personal injury case depends on lots of factors, including:
- The nature and extent of the injury,
- The amount of economic damages (such as lost wages and medical bills)
- The amount of time the injury is expected to last
Q: Are medical bills included in a personal injury claim?
A: "Economic damages" would include, but aren't limited to:
- Lost wages
- Medical bills
- Rental car expenses, etc.
- General damages include:
If you settle your personal injury claim, it must include all the types of damages available to you, or you'll likely lose your right to recover for those losses.
Q: How do I collect my personal injury award?
A: If the person against whom you have the judgment has insurance, the easiest thing to do is simply to notify the insurance company of your judgment (if they're not already aware of it). The insurance company will usually just write a check for the damages up to the limit of the insurance policy. If the person against whom you have the judgment is uninsured, collecting won't be as easy. You must have the judgment "entered" with the court and then seek to "enforce" the judgment. We specialize in collecting judgments, and it would be a good idea to consult with us.
Q: Can I ask my lawyer for a copy of the personal injury settlement check?
A: Yes, and you should. As a client you have an absolute right to see a copy of the settlement check, as well as to review a copy of the settlement breakdown sheet before the check is deposited. Usually, the insurance company check has both your name and your attorney's name on it, so you would typically have to endorse the check before it could be placed in your lawyer's trust account. Ask your lawyer to provide you with a copy of the actual settlement check forwarded to him by the insurance company, as well as a copy of all checks written by him (which should total the full amount of the settlement).
Q: What is a proper contingency fee?
A: An attorney's fee is usually negotiated, and depends on the complexity of the case, the time at which it settles, and the anticipated costs that may be invested.
33% is the fee that is typically charged as the maximum fee if the matter is litigated through trial or arbitration. The only way to know if your attorney is willing to consider a lower fee is to ask. If there isn't much of a fault ("liability") issue, you may be able to find a less expensive lawyer.
Q: Can my lawyer settle my personal injury case without my consent?
A: It's possible that the retainer agreement you signed with your lawyer allows him to settle the case without your consent and sign the settlement and release agreement on your behalf. If your attorney settled the case without your permission, and you haven't yet signed the settlement and release agreement, you should tell your lawyer that you don't want to proceed with the settlement if you're unhappy about it. If a check has already been forwarded to your lawyer, it's a simple matter to return the funds.
Regardless if your dog or your other dangerous animals, like buffalo, snake or tiger, would injure someone, or just chase someone, it is strict liability, except if you prove that the injured party was a trespasser.
Q. An individual trespassed my backyard, and my dog bit him. Am I liable?
A. No, you are not liable if the bitten person was a trespasser. However, New Jersey does impose strict liability if your dog bites someone if it is loose or if it bites a person in a public place or someone who is permitted on your property, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness. That means that, in New Jersey, a dog does not get two bites. So keep your dog fenced in or tied up and away from a mailman and visiting friends.
Q. Who is considered to be not a trespasser if this individual got bitten on my property?
A. A person is considered to be lawfully on your property if he or she is on your property performing any duty imposed upon him or her by the laws of New Jersey or the laws or postal regulations of the United States, or when this person is on such property upon invitation, express or implied, of the owner. Again, it means that in New Jersey, a dog does not get two bites, so keep your dog fenced in or tied up and away from a mailman and visiting friends.
Q. An individual threatened me with a lawsuit even though my dog did not bite him. I believe my dog just chased said individual playfully. However, the man fell because he was unnecessarily running from my dog.
As a dog owner, you can even be liable if your dog injures someone without biting. If your dog jumped on a person or chased a person (like in your situation), it could be grounds for civil liability. In considering whether the plaintiff was in a public place or lawfully in a private place, including your property, you should note that anyone whose presence is expressly or impliedly permitted on the property is protected by law. Also, in any areas where the individual may reasonably believe to be allowed on the property, he or she is protected by law.
Q. Is there any way to prove negligence of the bitten/injured individual?
A. If you decided to raise the bitten / injured individual’s negligence as your defense, you have the burden of proof. This means that you have the burden to prove the bitten / injured individual took unreasonable and voluntary exposure to a known risk. Therefore, you have to prove that the bitten / injured individual "knew" the dog had a propensity to bite either because of the dog's known viciousness or because of the bitten / injured individual’s deliberate acts intended to incite the animal. For instance, a dog owner has no liability if, in self-defense, the dog bites back a person who beats or torments said dog.
FAMILY LAW QUESTIONS AND ANSWERS:
Q: Do I need to hire an attorney to handle my divorce or other family law matters?
A: You are not required to retain an attorney to handle your divorce or family law matter; however, there are intricate nuances contained within the family and matrimonial laws that are not always black and white. Having an expert on your side who is educated in all aspects of this field places you at an advantage and vise versa if you do not have an attorney. An experienced New Jersey family law attorney can simplify your otherwise complex experience.
Q: Should I choose my divorce or family law attorney based on reputation or my comfort level?
A: Ideally both. It is important to find a lawyer who gives you confidence, who you feel a connection with and who you believe will work diligently to ensure that you and your family’s legal interests are protected. In our extensive experience, we have seen that some people hire an attorney because they view them as a pit bull and they will win any fight worth fighting. The problem with this type of attorney is that a pit bull will fight for the sake of fighting instead of working hard to resolve your matter. A pit bull can drive your legal costs through the roof because litigation is extremely expensive. This is why we always ask who the other side has retained as their attorney because we can typically tell you immediately if that attorney is likely to assist in productive negotiations and settlement talks for the benefit of both parties and their family or if they are the type of attorney who will take your matter to court at all costs. Either way, we will be prepared.
Q: Can my spouse and I use the same attorney for our divorce or family law matter?
A: In a family and matrimonial matter you and your spouse can use the same attorney if this lawyer is serving as your joint neutral mediator. Otherwise, it is a conflict of interest and it is impermissible. Should both parties elect to have representation, then each party must receive independent advice from separate counsel.
Q: How much will my divorce or family law matter cost?
A: While we can never accurately quote a definitive price for a divorce or family law matter, there are some guidelines that can help you determine your final cost. The cost of your matter will be predominantly determined by you, your spouse, and both attorneys. If you and your spouse’s attorneys can communicate effectively and efficiently, exchange financial documents that are required without any game-playing and can negotiate in good faith, it will be easier to reach a reasonable agreement which will result in lower costs to both you and your spouse. The cost of your divorce case can also be proportionate to the number of issues you have in your matter and the degree of complexity of those issues. For instance, two parties with no children may have fewer issues and incur less costs than parties with children. Our attorneys’ objective is to work with you towards reaching an amicable resolution to your divorce because we recognize that this will be most beneficial to you and your family in the long term, both from a financial stand point and from an emotional and psychological perspective.
Q: Can I force my spouse to pay for my legal fees in a divorce or family law matter?
A: An application can be made to the court for your spouse to pay your legal fees in a divorce or family law matter. The request might be granted if there is a large disparity in income between you and your spouse or for other causes. For example, there are occasions when a judge will court mandate one party make counsel fee payments for the other party when there was bad faith or a default on a previously awarded support payments. There is, however, no guarantee that any legal fees will be awarded. Some parties settle the legal fee issue by agreeing to make counsel fee payments from joint assets and accounts for both lawyers and all experts in the case.
Q: What documents should I gather in order to prepare for my first meeting with my divorce attorney?
A: The items to bring include three paystubs from your and your spouse's employer, income tax returns for the last three years, and any recent bank and/or retirement account statements. Call or email Yelena Perchuk, Esq. for a more extensive list that your attorney will need in order to adequately answer all your questions, but this will get you started.
Q: What if I don't have all that information before I meet with my divorce or family law attorney?
A: It's fine. All of the documents that will be needed to help to settle your case can be produced later. While it is helpful for me to have the information and documents available at the initial consultation so that we can provide you with more specific responses to your questions. It is not necessary for you to bring all the information to an initial consultation. Together, we will be producing many more documents including but not limited to:
- Child custody (which parent will serve as the primary residential parent?)
- Visitation plan (fill out a blank calendar with your initial thoughts as to scheduling)
- Marital home (will you remain living in the house, sell the home or have the other party buy-out your interest?)
- Beneficiaries of insurance policies and other benefits (how will they change?)
- Spousal support / alimony (is this a factor?)
- Attorney’s fees and expenses (from what source will these be paid?)
- Asset and debt division- (how do you envision a reasonable resolution?)
Q: What is the discovery process in a divorce or family law matter?
A: The discovery process can be long and arduous. Parties may be required to complete significant document exchange including the production of financial records in their possession.
Q: When is the right time to file a Complaint for Divorce?
A: Each case is different and it really depends upon the facts of your specific matter. There are some reasons to wait, especially if it appears that your divorce matter can be resolved amicably, without court intervention. However, there are also some cases where immediate action is required. The most important thing for you to do is to be candid with your lawyer so the both of you can discuss your options for filing.
Q: What are the requirements for filing a petition for divorce?
A: In order to file a petition for divorce, you need grounds for divorce. When filing a Complaint for Divorce, we would include certain details in the filed document such as names and addresses of both parties, your date of marriage, place of marriage, children’s names and dates of birth and cause of action language. Other legal documents must be filed along with the Complaint for Divorce such as an Affidavit of Insurance Coverage which identifies all insurances (ie life, health, auto and homeowners insurances) existing at the time of the Complaint for Divorce; the Confidential Litigant Information Statement, which is a document geared toward identity theft prevention; a Certification between you and your lawyer acknowledging that you were advised about your right to alternative dispute resolution (mediation for instance). There is a filing fee for the court to process the paperwork and there are service of process requirements to ensure that the non-filing party receives the Complaint.
Q: Can my spouse and I get divorced by agreement using "irreconcilable differences"?
A: Yes. There is a requirement at the time that you file your Complaint for Divorce utilizing the grounds for Irreconcilable Differences that there has been a break-down in the marriage for 6 months or more. This encourages litigants to resolve their disputes amicably without any mud-slinging as no details about the break-down of the marriage are included in the Complaint at all. Filing under the ground of Irreconcilable Differences allows you to refrain from disclosing the intimate and detailed “reasons” for wanting the divorce which can assist you and your spouse to preserve your relationship when possible, expedite settlement and final resolution of your matter.
Q: Aside from Irreconcilable Differences, what other grounds for divorce exist in the State of New Jersey?
A: There are a number of grounds for divorce to select from when filing a Complaint for Divorce. There are many grounds that parties usually do not choose although they are readily available such as:
- Habitual Drunkenness
- Addiction to Narcotics
- Deviant Sexual Acts
The more common of the grounds used when filing a Complaint for divorce are:
- Desertion: Many litigants believe at first glance that this applies to them because the label is deceiving. Desertion is not when a spouse picks up and leaves the home or “abandons” the family. Desertion is when there is a lack of physical intimacy for a statutorily required period of time.
- Extreme Cruelty: These grounds are accompanied in the Complaint for Divorce with a description of the conduct you allege to have risen to the level of extreme cruelty, which your attorney can counsel you as to the extent of detail necessary. There is a residency requirement in the State of New Jersey to file with this ground.
- Adultery: Most parties who select this ground for divorce also choose another ground along with Adultery, such as Extreme Cruelty, since there is a proof requirement that goes along with the adultery claim.
- Separation: You and your spouse are required to live in separate residences for a period of 18 months or more to be eligible to use this ground for divorce.
Q: How Long Does It Take To Get A Divorce In New Jersey?
A: The length of time it takes to get a divorce in New Jersey depends upon the issues and the reasonableness of the parties and attorneys in your matter. For instance, if you do not have any child custody issues in your case, there is a higher likelihood that your case will take less time to settle than a case including custody and parenting time issues. If your case involves one or more businesses, then we may need to involve forensic experts and accountants to determine the value of the businesses for equitable distribution purposes, which can extend the time it takes to resolve your matter. Cases involving W-2 wage earners are less complex and take a shorter period of time as fewer financial records typically need to be examined. The Best Practices in the State of New Jersey indicates that it should not exceed one year from the date of the filing of a Complaint for Divorce until the issuance of a Final Judgment of Divorce. Both practitioners and judges recognize that this may not always be the case. Some matters resolve from start to finish in only a few months while others can exceed the one year cap if there are complex custody issues, businesses are involved, significant discovery is needed or other involved issues that need to be handled in due course.
Q: Should I continue to stay in a bad relationship for the sake of the children?
A: We as attorneys are not therapists so we strongly encourage such questions be directed to a licensed therapist. We do encourage clients to undergo counseling or therapy during the divorce process, since it can be a highly emotional and draining time in your life. Children of all ages tend to be very perceptive and know when you are unhappy, but exactly how this impacts the children and the household varies from case to case.
Q: Do I have to continue to live in the house with my spose during the divorce process?
A: This too depends upon the facts of your particular case. Unless your spouse voluntarily moves out, Judges are generally loathe to make someone leave a marital residence, unless domestic violence exists.
Q: Can I change the locks on the house if my spouse moves out but we still own the house together?
A:: Generally yes, with notice to the other party, but this too is a fact-specific question.
Q: Is it considered "custody" when you fight over the family pet?
A:: No, although the courts recognize the depth of feelings people have for their pets, it is not considered custody in the eyes of the court. The courts deem pets to be “property” that needs to be divided. It is rare for any time-sharing arrangement to be worked out between divorcing couples or for the parties to determine where the family pet will next reside. Typically, one party keeps the family pet in a settlement. It is obviously an emotional issue, but one that requires a resolution in many cases.
Q: Can I take 1/2 of the money out of a joint account during the divorce process without getting into trouble?
A:: Truly, that depends on the facts and the Judge. We never recommend that a party create an unnecessary hostile situation.
Q: How is property divided in a divorce?
A:: New Jersey is an equitable distribution State. This means that all marital property (assets and liabilities) is divided in a manner considered to be fair and equitable, not necessarily equal.
Q: Is there any way I can file for divorce without disclosing my financial assets?
A:: Financial disclosure is required and it protects you. When you disclose all of your assets and liabilities, your spouse is left without any remedy to come back to the court to claim fraud. If you fail to disclose certain assets, you are potentially harming yourself and leaving yourself open to future proceedings. The Case Information Statement may assist you in completely and accurately defining your assets and liabilities.
Q: How do I know what property goes to my spouse and to me when we divorce?
A:: When you enter into a Marital Settlement Agreement (MSA), receive a Notice of Equitable Distribution or a Judgment of Divorce, your final document will spell out all of your rights and those of your spouse as to support, asset and debt distribution and all other issues in your matter.
Q: Can the provisions in a divorce decree be changed afterwards?
A:: Terms and provisions are often subject to modification. If you and your former spouse are in agreement and do not want to formally implement the changes on a court document, you are free to make the change on your own without any memorialized document. For example, if you decided to change an every other weekend visitation schedule between one parent and a child or fluctuate the pick up and drop off times. You are not required to go back to court in order to make this modification if you are both in agreement. However, to change a provision formally, a Consent Order is recommended. In this situation, both parties would sign the document with your lawyers and the Consent Order is sent to a judge who signs and files the document, thereby making the changes official and fully enforceable in the future.
Q: My spouse wants to attend mediation to resolve our divorce disputes but I don't understand why I should go. Can't we just go to Court?
A:: Private mediation is a process that requires both parties to willingly attend. If you are not interested in participating, you are not required to go even if your spouse tries to force you to attend a session. However, if you proceed through the court system and are unable to resolve your case at certain intervals, the court mandates that you and your spouse attend certain court mandated mediation sessions depending on your specific issues. Custody and parenting time mediation occurs with a court mediator if you have not settled your custody and visitation issues shortly after filing your initial Complaint and Counterclaim documents. Economic mediation is also court mandated if you have not yet resolved your case after the Early Settlement Panel program. Mediation providesa confidential and secure environment where you can state your positions and receive non-binding recommendations.
Q: Can I change my name at the time of divorce?
A: Yes. At the time of the final uncontested hearing or at the trial, you will have the opportunity to resume your premarital surname. If you indicate that you want to use your premarital surname, you will be asked a few questions in court such as whether your intention of resuming your former surname is for the purpose of defrauding creditors or avoiding criminal prosecution or bankruptcy. The judge will include your desired last name on your Judgment of Divorce. The official Gold Seal Final Divorce Decree will serve as your authorization to make changes to many of your documents such as your driver’s license and your social security card.