What Are The Elements Of Fraud In New Jersey?

by admin on December 17, 2014

In New Jersey, the elements of common-law fraud are: “(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages.”  Gennari v. Weichert Co. Realtors, 691 A.2d 350, 148 N.J. 582, 610 (N.J. 1997); accord Kuzian v. Electrolux Home Prods., Inc., 937 F. Supp. 2d 599, 614-615 (D.N.J. 2013).

Further, the New Jersey Consumer Fraud Act, N.J.S.A. §§ 56:8-1 – 56:8-184 (the “Consumer Fraud Act” or the “NJCFA”), renders it unlawful for any person to “use or employ[] . . . any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation,” or to “knowing[ly] conceal[], suppress[], or omi[t] . . . any material fact with intent that others rely upon . . . [that] concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby . . . .”  NJCFA § 2, N.J.S.A. § 56:8-2.

To maintain a claim under the Consumer Fraud Act, a private litigant must establish “(1) unlawful conduct by the defendants, (2) an ascertainable loss on the part of the plaintiff, and (3) a causal relationship between the defendant’s unlawful conduct and the plaintiff’s ascertainable loss.”  New Jersey Citizen Action v. Schering-Plough Corp., 842 A.2d 174, 367 N.J. Super. 8, 12-13 (N.J. App. Div. 2003); see also NJCFA § 7, N.J.S.A. § 56:8-19.

A private litigant who proves a claim under the New Jersey Consumer Fraud Act is entitled to recover three times the damages sustained by him, and reasonable attorneys’ fees.  See NJCFA § 7, N.J.S.A. § 56:8-19.

If your company wants to bring, or needs a lawyer to defend it in, business litigation and you are located in the New York City area, call Attorney David S. Rich at (212) 209-3972.

{ 0 comments }

In September 2014, the respective Mayors of four municipalities in New Jersey — the Cities of East Orange, Passaic, and Paterson and the Township of Irvington — signed into law paid sick leave ordinances for private employees (collectively, the “Sick Leave Ordinances” or the “Ordinances”). Effective January 2015, the East Orange, Irvington, Passaic, and Paterson Sick Leave Ordinances require employers in those respective cities which employ ten or more employees to give each employee one hour of paid sick time for every 30 hours worked by the employee, up to five days (40 hours) of paid sick time per calendar year.

Similarly, the East Orange, Irvington, Passaic, and Paterson Ordinances require employers in those respective towns which employ one to nine employees to afford each employee one hour of paid sick time for every 30 hours worked by the employee, up to three days (24 hours) of paid sick time per calendar year.

The Passaic Sick Leave for Private Employees Ordinance, Ordinance No. 1998-14, takes effect on January 3, 2015.  The East Orange Paid Sick Time for Private Employees Ordinance, Ordinance No. 21, is effective January 7, 2015.  The Irvington Sick Leave for Private Employees Ordinance, Ordinance No. MC 3513, takes effect on January 8, 2015.  The Paterson Sick Leave for Private Employees Ordinance, Ordinance No. 14-040, is effective January 10, 2015.

In early September 2014, the City Councils of East Orange, Passaic, and Paterson and the Town Council of Irvington had passed those municipalities’ respective Sick Leave Ordinances.  In East Orange, the City Council’s vote favoring passage of the city’s Ordinance was 10 to 0.  In Passaic, the City Council’s tally in favor of passage was 7 to 0.  Likewise, in Paterson, the City Council’s vote was 7 to 0.

The four cities’ Sick Leave Ordinances do not apply to governmental employees.  Further, the East Orange, Passaic, and Paterson Ordinances do not apply to any employee who is a member of a construction union and is covered by a collective bargaining agreement negotiated by that union. Apart from these exclusions, the four Ordinances apply to any employee who works within East Orange, Irvington, Passaic, or Paterson, as the case may be, for at least 80 hours in a year.

Workers of businesses in East Orange, Irvington, Passaic, or Paterson may carry over, from one calendar year to the next, up to 40 hours of accrued, unused paid sick time mandated by the Sick Leave Ordinances.  However, the Ordinances do not require an employer to allow a worker to use more than 40 hours of paid sick time in a calendar year.

Under the Ordinances, an employee may utilize paid sick time for any of the following purposes:

  1. The employee’s mental or physical illness, injury or health condition or need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or the employee’s need for preventive medical care; or
  2. Care of a family member with a mental or physical illness, injury or health condition; care of a family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or care of a family member who needs preventive medical care; or
  3. Closure of the employee’s place of business by order of a public official because of a public health emergency; the employee’s need to care for a child whose school or childcare provider has been closed by order of a public official because of a public health emergency; or care for a family member when it has been determined by health authorities or by a health care provider that the family member’s presence in the community would jeopardize the health of others because of the family member’s exposure to a communicable disease, whether or not the family member has actually contracted the communicable disease.

The Sick Leave Ordinances do not require employers, upon cessation of a worker’s employment for the employer, to pay the worker for accrued, unused paid sick time.

The East Orange Department of Health and Human Services, the Irvington Department of Neighborhood Services, the Passaic Department of Human Services, Division of Health, and the Paterson Department of Health and Human Services are authorized to ensure compliance with their municipalities’ respective Sick Leave Ordinances, receive and resolve complaints, provide information about paid sick time, create notices and posters, and conduct audits and on-site investigations.

Moreover, the Sick Leave Ordinances authorize workers to prosecute claims, in the cities’ respective Municipal Courts, against their employers for violating the Ordinances.  A worker or other aggrieved individual need not submit a complaint to his or her city’s designated agency before suing an employer under the city’s Ordinance.

The East Orange Municipal Court may punish a violation of the East Orange Ordinance by fining the employer up to $500 for each day on which the violation occurs or continues and/or requiring the employer to pay restitution.  The Irvington and Passaic Municipal Courts may punish a violation of their cities’ Ordinances by fining the employer up to $1,000 and $2,000, respectively, for each day on which the violation occurs or continues and/or making the employer pay restitution.  The Paterson Municipal Court may punish each violation of the Paterson Ordinance by fining the employer up to $2,000, imprisoning the employer for a term not exceeding 90 days, and/or ordering the employer to pay restitution.

Employers may not terminate, or otherwise retaliate against, a worker because the worker has exercised rights protected under the Ordinances.  So, for example, a business may not fire, or otherwise strike back against, an employee for requesting and using paid sick time, or for submitting a complaint to the designated city agency about the employer’s alleged violation of the city’s Ordinance.

Paterson is a city in, and is the county seat of, Passaic County, New Jersey.  As of the 2010 U.S. Census, Paterson’s population was 146,199, rendering it the third most populous city in New Jersey, after Newark and Jersey City.  According to estimates from the Center for Women and Work at Rutgers University, the Paterson Sick Leave Ordinance will cover about 23,000 workers.

Passaic is a city in Passaic County, New Jersey.  As of the 2010 U.S. Census, the city had a total population of 69,781, maintaining its status as the 15th largest municipality in New Jersey.

East Orange is a city in Essex County, New Jersey.  As of the 2010 U.S. Census, the city’s population was 64,270, making it the 20th most populous municipality in New Jersey.

Irvington is a township in Essex County, New Jersey.  As of the 2010 U.S. Census, the township had a total population of 53,926, making it the 30th most populous municipality in New Jersey.

Passaic, East Orange, Irvington, and Paterson are, respectively, the third, fourth, fifth, and sixth municipalities in New Jersey to enact laws mandating paid sick leave.  The first and second municipalities in New Jersey to require employers to provide paid sick time were Jersey City and Newark, respectively.  See this author’s February 11, 2014 blog post about Jersey City’s enactment of an ordinance requiring paid sick time, and this author’s April 25, 2014 blog post about Newark’s passage of an ordinance mandating paid sick leave.

Take-Aways for Employers

Effective January 2015, employers in East Orange, Irvington, Passaic, and Paterson, New Jersey must revise their policies concerning absence due to illness to conform to the employers’ cities’ respective Sick Leave Ordinances.  Companies must modify their employee handbooks to incorporate these revised policies.

However, those businesses in East Orange, Irvington, Passaic, and Paterson that already have policies which allow time off that amounts to at least the minimum requirements under the businesses’ cities’ respective Sick Leave Ordinances, and that can be taken for the same purposes and under the same conditions as set forth in those Ordinances, are not required to provide additional paid sick time.

Further, beginning in January 2015, employers in East Orange, Irvington, Passaic, and Paterson, New Jersey must provide to each worker, at the beginning of the worker’s employment (or as soon as practicable if the worker is already employed in January 2015), written notice of the worker’s right to paid sick time under the employers’ municipalities’ respective Sick Leave Ordinances, including the amount, accrual rate, and use of paid sick time; the right to be free from retaliation; and the right to file a complaint with the designated municipal agency or to bring an action in Municipal Court.  The written notice must be in English and in the primary language spoken by that worker, as long as the primary language of that worker is also the primary language of at least 10% of the employer’s workforce.

Also starting January 2015, each employer in East Orange, Irvington, Passaic, and Paterson must conspicuously post such written notice at the employer’s place of business in an accessible area.

If your company needs assistance or guidance on a labor or employment law issue and your company is located in the New York City area, call Attorney David S. Rich at (212) 209-3972.

{ 0 comments }

What Are The Elements Of Breach Of Fiduciary Duty In New York?

November 3, 2014

In New York, “In order to establish a breach of fiduciary duty,  a plaintiff must prove the existence of a fiduciary relationship, misconduct by the defendant, and damages that were directly caused by the defendant’s misconduct.”  Kurtzman v. Bergstol, 40 A.D.3d 588, 590, 835 N.Y.S.2d 644 (2nd Dep’t 2007); see also Pokoik v. Pokoik, 982 […]

Read the full article →

Mayor Signs Executive Order Raising New York City Living Wage

October 14, 2014

On September 30, 2014, New York City Mayor Bill de Blasio signed an executive order, Executive Order No. 7 (the “Executive Order”), requiring companies or individuals who receive, from the City of New York or from a City economic development entity, financial assistance of one million dollars or more and which have annual gross revenues […]

Read the full article →

What Are The Elements Of Conversion In New Jersey?

September 29, 2014

In New Jersey, common law conversion is defined as ” ‘the exercise of any act of dominion in denial of another’s title to . . . chattels, or inconsistent with such title. ‘ ”  Marsellis-Warner Corp. v. Rabens, 51 F. Supp. 2d 508, 525 (D.N.J. 1999) (quoting Mueller v. Technical Devices Corp., 8 N.J. 201, […]

Read the full article →

New Law Restricts Ability Of Employers In New Jersey To Ask Job Applicants If They Have Criminal Records

September 11, 2014

On August 11, 2014, New Jersey Governor Chris Christie signed into law the New Jersey Opportunity to Compete Act, Pub. L. 2014, ch. 32 (the “Opportunity to Compete Act,” the “NJOCPA,” or the “Act”), which takes effect on March 1, 2015.  The Opportunity to Compete Act prohibits employers in New Jersey from requiring applicants for […]

Read the full article →

What Are The Elements Of Conversion In New York?

August 15, 2014

In New York, the elements of conversion are “(1) intent, (2) interference ‘to the exclusion of the owner’s rights,’ and (3) possession, or the right to possession in plaintiff.”   2 Leon C. Lazer, et al., New York Pattern Jury Instructions – Civil § 3.1 (2d ed. 2006) (quoting Employers’ Fire Ins. Co. v. Cotten, […]

Read the full article →

New York Enacts Law Enabling Some Chronically Ill Workers To Use Medical Marijuana On The Job

July 29, 2014

On July 7, 2014, New York Governor Andrew Cuomo signed into law the New York Compassionate Care Act, N.Y. State Senate Bill S07923, N.Y. State Assembly Bill A06357E (the “NYCCA” or the “Act”), which, effective immediately, legalizes and comprehensively regulates the manufacture, sale and use of medical marijuana in New York State. The New York […]

Read the full article →

What Are The Elements Of Breach Of Implied Contract Of Good Faith And Fair Dealing In New York?

July 11, 2014

In New York, within every contract is an implied covenant of good faith and fair dealing.  The covenant is breached when a party acts in a manner that deprives the other party of the right to receive benefits under their agreement.  The covenant encompasses any promises which a reasonable person in the position of the […]

Read the full article →

New York City Enacts Statute Authorizing Certain Unpaid Interns To Sue For Employment Discrimination Or Workplace Harassment

June 25, 2014

Effective June 14, 2014, certain unpaid interns in New York City gained the right to sue their employers for discrimination in employment or workplace harassment.  However, the effect of this new statute is quite limited, because most unpaid trainees in New York City fall outside the new statute’s definition of an ” ‘intern.’ ”  As […]

Read the full article →