Kates Nussman Ellis Farhi & Earle, LLP Hackensack Employment Lawyer | New Jersey Business Law Attorney | Newark Real Estate Law Firm2024-03-08T15:07:18Zhttps://www.katesnussman.com/feed/atom/WordPressOn Behalf of Kates Nussman Ellis Farhi & Earle, LLPhttps://www.katesnussman.com/?p=542162024-03-08T14:46:51Z2024-03-08T06:00:41Z
What is the ADA?
The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in areas of life such as employment, education, transportation, public accommodations, communications and access to state and local government programs and services.
The foundation for the ADA is a promise of equal access to opportunity for all American citizens. The ADA fulfills this promise by eliminating barriers to disabled individuals’ participation in many aspects of living and working.
The ADA in Employment
The ADA covers employers with fifteen or more employees.
Title I of the ADA protects the rights of both employees and job seekers. It prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.
Who is protected by Title I of the ADA?
All qualified employees or applicants with disabilities are protected. An individual with a disability is defined as a person who:
Has physical or mental impairment that substantially limits one or more major life activities;
Has a record of such an impairment; or
Is regarded as having such an impairment.
A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodations are intended to ensure that qualified individuals with disabilities have right in employment equal—not superior—to those of individuals without disabilities. Reasonable accommodations may include:
Making existing facilities used by employees readily accessible to and usable by individuals with disabilities;
Job restructuring, modifying work schedules, reassignment to a vacant position;
Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.
Title III: The ADA and Businesses
Title III of the ADA prohibits discrimination on the basis of disability in the activities of places of public accommodations. Such places include restaurants, theaters, schools, day care facilities, recreation facilities, doctors’ offices, gyms, commercial facilities, etc.) The standards set by the ADA exist to ensure that individuals with disabilities are recognized as members of the public entitled to access the same goods and services as those without disabilities. The law, therefore, requires that businesses open to the public comply with several specific including:
Communicating with people with disabilities as effectively as you communicate with others;
Making reasonable modifications to policies, practices, and procedures as needed;
Ensuring that an individual with disabilities can access the businesses’ goods or services;
Allowing service animals to be with their person despite a “no pets” policy;
Following specific standards for physical accessibility when building or altering a building or facility;
Removing architectural barriers in buildings/facilities when it is readily achievable to do so (i.e. a business only accessible by stairs).
How does this impact small businesses?
Small businesses have reported concerns that accommodating individuals with disabilities may affect the growth of the business due to added costs of removing architectural barriers. The ADA only requires removal where “readily achievable.” Readily achievable means easy to do without much difficulty or expense. The standard is based upon each business’s size and resources. The ADA has stricken a balance intended to increase access for disabled individuals and understanding the challenges that doing so may present for smaller businesses.
Ultimately, the valuable benefits that small businesses receive by increasing their inclusivity is worth the cost of modifications. The disabled community is a valuable customer base with much to offer businesses who invest in their needs and prioritize inclusivity. Questions? Call Mike Farhi at 201-488-7211 x. 215.Gianna D’Onofrio is a third-year law student at Seton Hall University School of Law with a passion for Corporate Law. Upon graduating in the Spring and taking the Bar Exam, she will serve as a law clerk to Judge Cynthia Santomauro in Essex County, Civil Division.]]>On Behalf of Kates Nussman Ellis Farhi & Earle, LLPhttps://www.katesnussman.com/?p=541822024-02-09T16:02:54Z2024-02-09T16:02:54Z
Background.
Until recently, the legislative landscape surrounding domestic violence largely targeted and provided protection to victims with a familial or dating relationship to their offending actor. This meant that victimized persons in situations where domestic violence statutes did not apply due to a lack of such a relationship were denied the opportunity to seek protection via protective orders. Luckily, New Jersey Governor Murphy changed this with the passage of Victim’s Assistance and Survivor Protection Act (VASPA) in July 2023 which came into effect on January 1, 2024.
VASPA amends the Sexual Assault Survivor Protection Act of 2015 (SASPA). This amendment expands the list of eligible acts for which a protective order may be obtained, now including non-sexual acts such as stalking and cyber-harassment. The passage of this bill represents NJ’s commitment to keeping residents safe and bridges the gap that the NJ legislature left open in 2015 with SASPA.
Who is protected under the Act?
The Act will provide stalking and cyber-harassment victims with access to protective orders against strangers or non-familial, non-romantic partners who are targeting them. Senator Lina Greenstein brings to light the shocking reality that in nearly one fifth of cases the perpetrator is a stranger rather than a current or former partner. Additionally, stalking can continue for long periods of time leaving victims without legal recourse and thus living in fear on a day to day basis. This bill ensures that victims will now have a critical tool to protect themselves against behavior that may escalate and become threatening – in and out of the workplace.
Significantly, VASPA authorizes the New Jersey Superior Court to issue temporary or final protective orders to victims, regardless of their current or prior relationship status to the abuser, by expanding the eligible acts for which a protective order may be obtained to four specific offenses: stalking, cyber-harassment, sexual assault, and criminal sexual contact. The new law applies the same procedures for obtaining either an initial, temporary protective order or a final protective order for victims of stalking or cyber-harassment. This can mean abusers who are supervisors or co-workers in employment situations.
The Effect on Victims On The Job: Making Tough Judgement Calls.
While VASPA is certainly a great win for victims, but with this newfound empowerment also comes responsibility. Particularly in the workplace, many victims will face the responsibility of making tough judgment calls in these situations. Why? In cases where a victim is being stalked, harassed, or sexually abused by a supervisor or co-employee, the question becomes: what is the first course of action?
Do you give your employer – HR or someone else “up the food chain” - the opportunity to address the situation first – and fast? Or do you bypass this step and seek legal recourse immediately via VASPA? This decision poses difficulty to victims in balancing dealing with their bosses with prioritizing their safety. A restraining order could bar the predator from the workplace, taking the decision to discipline out of an employer’s hands. The best strategy may be to report the behavior and demand immediate action. That could protect against employer retaliation later on.
However, reporting stalking or harassment behavior through VASPA is likely to be considered a “protected activity” under New Jersey’s Anti-Retaliation law, preventing employers from retaliating against an employee for reporting conduct marked by discrimination or harassment.
Gianna D’Onofrio is a third-year law student at Seton Hall University School of Law with a passion for Corporate Law. Upon graduating in the Spring and taking the Bar Exam, she will serve as a law clerk to Judge Cynthia Santomauro in Essex County, Civil Division.]]>On Behalf of Kates Nussman Ellis Farhi & Earle, LLPhttps://www.katesnussman.com/?p=541272024-01-25T22:27:51Z2024-01-25T16:50:40Z
Workplace violence is defined as “any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.” Regrettably, incidences of workplace violence occur all too often in businesses across the United States. According to Officials at the Department of Justice, each year “approximately two million people throughout the country” fall victim to non-fatal episodes of workplace violence. It’s clear that workplace violence is a serious problem facing employers today, but just how can it be prevented? Well, many states seem to believe that the way forward lies in workplace violence prevention plans.
California Senate Bill 553
The California State Legislature recently passed Senate Bill 553, which some deem to be “the most prominent workplace violence bill.” Senate Bill 553 requires nearly all employers within the State of California to establish workplace violence prevention plans, provide their employees with workplace violence training, and begin logging incidences of violence that occur within the workplace. Notably, Senate Bill 553 requires employers to “obtain the active involvement of employees . . . in identifying, evaluating, and correcting workplace violence hazards.”
Senator Dave Cortese, who authored the bill, stated that it was “the result of a months-long negotiation between workers, businesses, and California/OSHA . . . [designed to] help workers and employers establish a plan for the types of workplace violence that are on the rise.”
Increased State Legislation to Thwart Workplace Violence
Since California passed Senate Bill 553, the topic of workplace violence has garnered renewed attention from state lawmakers nationwide. During the first few months of 2023, over one hundred bills mentioning workplace violence were introduced within twenty-seven states. Of those hundred bills, approximately 25% were adopted and 50% remain pending.
Approximately one-third of all recent bills mentioning workplace violence are “focused on trying to prevent such violence in health care settings.” This is because workers in the health care and social service industries “experience the highest rates of injuries caused by workplace violence.” Specifically, workers in these industries are five times more likely to suffer an injury from workplace violence than others.
Other proposed bills aim to mitigate incidences of workplace violence in public schools. In September 2023, New York Governor Kathy Hochul signed a law requiring state public schools “to develop and execute programs to prevent workplace violence.” Although New York is the first state to mandate such rigorous safety standards, “the move could inspire similar regulations in other states.”
Considerations When Creating a Workplace Violence Prevention Plan
Due to growing concerns for workplace safety, it’s likely that more states will begin to require employers to develop workplace violence prevention plans. When drafting such plans, employers would be well-advised to consider existing guidance from the Occupational Safety and Health Administration (“OSHA”). OSHA has identified five building blocks for developing an effective workplace violence prevention plan, including: (1) management commitment and employee participation; (2) worksite analysis; (3) hazard prevention and control; (4) safety and health training; and (5) recordkeeping and program evaluation.
Although no employers are totally immune from workplace violence, workplace violence prevention plans can be an effective tool for promoting a safe working environment.
It would be nice if New Jersey was next in mandating safe workplaces. Or better still, for employers here to take the initiative and make their own policies and procedures.
Katherine Farmer is a third-year law student at Seton Hall University School of Law, where she works as an Associate Editor for the Law Review, Vol. 54. Katherine is also the Social Chair of the Corporate Law Society at Seton Hall Law.]]>On Behalf of Kates Nussman Ellis Farhi & Earle, LLPhttps://www.katesnussman.com/?p=541012024-01-19T19:58:52Z2024-01-19T09:51:16ZLeiona Noah, Esq. is an associate at Kates, Nussman, Ellis, Farhi & Earle, LLP. She graduated from St. Thomas University Benjamin L. Crump College of Law, located in Miami Gardens, Florida, in May 2023, with a certificate in Intellectual Property law.
Prior to law school, Ms. Noah earned a B.S. in Psychology and has varying experience in healthcare and research settings. Her interests led her to work in clinical research, where she became familiar with regulatory affairs, business development, and contract and budget negotiations. This is where her interests in law began, as she saw firsthand that when ethical regulations are created and implemented, better outcomes can be had for all. Her values of transparency, consent, and accountability in the law motivate her to help everyday people with everyday problems. She admires the motto that law is meant to serve people, not the other way around.
She has served as a judicial intern for the Honorable Judge Michele Towbin Singer of the Seventeenth Judicial Circuit of Florida. She was also a law clerk at The Williams North Law Firm, where she worked on cases involving landlord-tenant disputes, contracts, HOA/Condo law, estate planning and probate.]]>On Behalf of Kates Nussman Ellis Farhi & Earle, LLPhttps://www.katesnussman.com/?p=540502024-01-02T15:10:32Z2024-01-02T15:10:32Z
Everyday thousands of individuals across the nation enter into legal binding contractual agreements. These contracts range from simple oral agreements, leases, employment contracts, those made to purchase a home, and more-complex contracts concerning the merger of corporate entities. Contracts have become so commonplace in our society, that their importance is often overlooked. Unfortunately, this can result in alarming consequences for the parties who have assented to their terms.
Recent Trends in Contracts
In an August 2023 study from the Adobe Acrobat Team—in which over one thousand American freelancers, small business owners, and solopreneurs were surveyed—it was reported that over 36% of individuals in Generation Z have admitted to not reading contracts fully. Consequently, every 1 in 5 individuals has agreed to a provision that they were unaware of.
This oversight and lack of attention to detail in drafting has led to devastating results. Notably, the average American must now spend over $1,232 to terminate an unsuitable contract. And for those who are unable to successfully forgo their contractual obligations, roughly 19% have reported being paid late, 14% have had to take on extra work, 12% have lost money, and 7% have lost a client. Solopreneurs were found to be the most likely to encounter these issues due to their widespread use of fully templated contracts. Although the contractual errors resulting in these repercussions are common, they can be avoided with careful planning and drafting.
Requirements for a Legally Binding Contract
Before entering into a contract, the respective parties would be well advised to familiarize themselves with the requirements of one. The New Jersey Model Civil Jury Charges lists four requirements in order for a contract to constitute a legally enforceable agreement. These include: (1) meeting of the minds; (2) offer and acceptance; (3) consideration; and (4) certainty.
Meeting of the Minds: The parties to a contract must have a “meeting of the minds” on its material terms. For this to occur, “both parties must understand what each is agreeing to do.” A meeting of the minds will not occur where the contract is based on the misunderstanding of one or both parties.
Offer and Acceptance: An offer transpires where one party communicates “a willingness to enter into a contract and does so under circumstances [that] justify the other party’s understanding that if the offer is accepted, an agreement would result.” The offer must be “reasonably clear, definite and certain in all its essential terms.” An acceptance occurs where “a party shows intent to agree to an offer . . . before the offer is withdrawn or lapses.” The acceptance “must match the terms of the offer exactly.”
Consideration: A valid contract must include consideration for both parties. Consideration is “something of value [which] must be bargained for.” Consideration may be “a benefit to one party or loss of a benefit to the other party.” The actual, monetary value of consideration is unimportant.
Certainty: A contract satisfies the certainty requirement where “the terms [are] sufficiently clear so that what each party was to do or not to do could be determined with reasonable certainty.” In other words, this means that each party must understand what the contract requires of them and be able to determine when their obligations are satisfied.
These four requirements are extremely individualized and context specific. As a result, if the parties to a contract were to solely rely on the use of a form template, they might overlook important elements of the requirements and eventually encounter a variety of liability issues and legal disputes.
The Bottom Line
There is nothing wrong with freelancers, small business owners, and solopreneurs using form templates. In fact, form templates can be a great tool for parties to quickly outline the basic structure of a contract and identify its essential elements. However, the use of a form template alone is insufficient and likely to lead to significant contractual errors. The parties to a contract should take care in drafting and adopt these form templates to meet their unique needs in order to protect themselves from a host of legal issues down the line.
Katherine Farmer is a third-year law student at Seton Hall University School of Law, where she works as an Associate Editor for the Law Review, Vol. 54. Katherine is also the Social Chair of the Corporate Law Society at Seton Hall Law]]>On Behalf of Kates Nussman Ellis Farhi & Earle, LLPhttps://www.katesnussman.com/?p=540112023-12-05T09:18:25Z2023-12-05T09:18:25Z
Introduction
With the continuous development of AI technologies in recent years, creating AI-generated content has become easier than ever. While some uses of these technologies are beneficial—granting individuals access to heaps of information in seconds and automating tasks—other uses are illicit and defamatory. From phone scams and online extortion to creation and distribution of “deepfakes,” AI-generated content has begun to spin out of control, without any rules or regulations to curtail it.
What are deepfakes?
Deepfakes are a type of AI-generated media depicting highly realistic fake videos or audio recordings. Common forms of deepfake technology include impersonations of public figures, forged videos for political manipulation, spreading false information, and creating false, sexual content of individuals. Deepfakes are being used in the political sphere by parties to impersonate political candidates and advance partisan messages that harm opponents and spread false information. Additionally, deepfakes are prominent on social media platforms, with users creating and sharing AI-generated content using actors’ and actresses’ voices and features without their permission. This content has taken the form of deepfake pornography as well—using AI to create realistic videos and images of public figures seemingly engaging in sexual acts, without disclosing that the content is AI-manipulated. There is even concern that deepfakes may be used to erode trust in surveillance videos, body cameras, and other evidence. Without legislation in place to counteract and apprehend misuse of deepfakes, our society very well may end up in a situation where we cannot tell what is real from what is fake.
What is the DEEPFAKES Accountability Act?
Currently, there is no federal legislation addressing deepfakes. In 2019, Representative Yvette Clarke of New York proposed The DEEPFAKES Accountability Act for the first time. Roughly five years later, in September 2023, Clarke, hoping for better success, authored the proposal in the U.S. House of Representatives for a second time.
The Act is intended to provide protection to individuals nationwide that have fallen victim to deepfake content. Clarke noted that the Act would “provide prosecutors, regulators, and particularly victims with resources, like detection technology, to stand up against the threat of nefarious deepfakes.” If the Act is passed, it will require creators to label all deepfakes uploaded online to make it clear—through use of a non-removable digital watermark and text description—that the video or image is not real and has been modified. Failing to do so will be a crime. However, at this time, it is unclear whether the Act will pass.
NY Passes New Deepfake Law
But there has been some progress. In early October 2023, Governor Hochul of New York signed Senator Michelle Hinchey’s bill into law, making it illegal to disseminate AI-generated explicit content or deepfakes of a person without consent. If found guilty, one could face a year in jail and an $1000 fine. Victims will also be granted the right to pursue legal action against wrongdoers. Hinchley’s bill strives to send a strong message that New York will not tolerate this form of abuse and that victims will be avenged. The bill is the first in the state to advance specific protections surrounding this type of deepfake content and will – hopefully - pave the way for other states to take similar action. Will New Jersey be next?
Gianna D’Onofrio is a third-year law student at Seton Hall University School of Law with a passion for Corporate Law. Upon graduating in the Spring and taking the Bar Exam, she will serve as a law clerk to Judge Cynthia Santomauro in Essex County, Civil Division.]]>On Behalf of Kates Nussman Ellis Farhi & Earle, LLPhttps://www.katesnussman.com/?p=539222023-11-16T15:03:35Z2023-11-10T08:45:48Z
Finances & The Male Mindset
Many women write themselves off as “financially incompetent” or financially less competent than their male counterparts. As a society, we are conditioned to view finances and the financial industry as a whole as “male-dominated” and while that may be true, we carry with that view an assumption that men are more financially-apt than women. However, this may not be the case.
With the rise of new social media apps and their increasing popularity during the COVID era, people began sharing more and consuming more content online. The dramatic halt to our everyday lives paired with the unexpected gift of endless free time left our minds to wander like never before. During this timeframe, attention deficit hyperactivity disorder, or A.D.H.D., became an increasingly popular topic of conversation.
According to the Centers for Disease Control and Prevention, boys are more likely to be diagnosed with A.D.H.D. than girls during childhood because boys display the well-known hyperactivity trait. This has led to two myths: ADHD is a male disorder and ADHD is a childhood disorder. Thanks to the rise of social media transparency, especially during the pandemic, as more women began posting about their A.D.H.D. symptoms, more felt empowered to seek help. From 2020 to 2022, the incidence of A.D.H.D. diagnoses in women between the ages of 23 and 49 nearly doubled.
For many women, this had led to an epiphany in multiple areas of their lives in which they consistently struggled. From completing work tasks to managing their finances, women were experiencing a lack of focus and a lack of impulse control, without understanding why.
Gender Role Expectations
As noted above, men are typically viewed as the financial masterminds or the providers of the household and/or the work world, whereas women are expected to manage themselves, the family and the home. These tasks however, are incredibly difficult to manage when a woman is suffering from ADHD. Women are further expected to embody a “do-it-all” attitude, leaving them with little room for unproductivity. In the workplace, women with undiagnosed ADHD are often blamed for under-performance and retaliated against by employers, but are too ashamed to speak up about their misunderstood symptoms. In the home, this may look like women feeling pressured to stay in an abusive relationship because of the self-doubt that society has thrust upon them—that they cannot get by without male guidance.
ADHD in Women & Hormonal Impact
The brain is an organ target for estrogen, protecting the brain through enhancement of neurotransmitter activity, which effects functioning, attention, motivation, memory, sleep, and concentration. The result of this interaction as it relates to ADHD is varying symptoms with hormone fluctuations. As estrogen decreases, ADHD symptoms increase. Low estrogen levels cause low dopamine levels, resulting in the impulse to spend money in search of a dopamine rush. While this impulsivity related to the female cycle affects most women, women with ADHD need even more stimulation than the average person—thus, an even more intense itch to scratch when it comes to chasing a dopamine high. This impulsivity in women with ADHD often leads to not-well-thought-out credit card charges, regret, and a mindset that they are incapable of managing their finances.
Overcoming ADHD Setbacks
There are several ways in which women with ADHD can overcome the setbacks it may cause them. An initial step women can take is unlearning the neurotypical expectations that have been forced upon them. Recognizing that it is common to experience ADHD symptoms as an adult woman is essential to accepting one’s diagnosis and viewing it positively, rather than negatively. Just as important is letting go of the stereotype that women are poor at handling money, and recognizing that there are plenty of resources available to guide you through the process of learning how to manage your ADHD symptoms and your finances.
This may impact upon perceptions of women in the workplace. It may be a condition that requires a reasonable accommodation from an employer, or a change in an employer’s misperception of women’s capabilities on the job.
“It certainly worth a conversation with a lawyer,” says Mike Farhi, partner at Kates Nussman Ellis Farhi & Earle. “The conversation would be free and it may be helpful for a woman employee experiencing the symptoms to ‘brainstorm’ with someone about her rights.”
To get started on managing your ADHD symptoms and building financial management skills, visit
https://chadd.org/for-adults/managing-money-and-adhd-saving-and-spending/.
Gianna D’Onofrio is a third-year law student at Seton Hall University School of Law with a passion for Corporate Law. Upon graduating in the Spring and taking the Bar Exam, she will serve as a law clerk to Judge Cynthia Santomauro in Essex County, Civil Division.]]>On Behalf of Kates Nussman Ellis Farhi & Earle, LLPhttps://www.katesnussman.com/?p=537062023-11-02T09:03:13Z2023-10-13T05:26:18Z
What is the New Jersey Law Against Discrimination?
If your child has been a victim of discipline discrimination in school, there are laws protecting her/his right to fair treatment. The New Jersey Law Against Discrimination (“LAD”) imposes legal obligations on school districts to administer student discipline without discriminating on the basis of race, national origin, gender, sexual orientation, religion, and disability. The LAD now gives guidance to school administrators, teachers, staff, school boards, and parents on providing students with equal opportunities to succeed without being subject to discriminatory disciplinary actions. The LAD holds those responsible for student discipline accountable not only for actions that are made with intent to discriminate, but also decisions that result in a discriminatory impact.
New Jersey Attorney General’s Recent Guidance on Student Discipline
New Jersey’s Attorney General and the Department of Education (“DOE”) have recently released new guidance to New Jersey schools to prevent discrimination in school discipline. The guidance document was developed by the Division on Civil Rights (“DCR”) and the DOE to ensure that New Jersey schools have student codes of conduct and discipline policies that do not discriminate. The guidance also explains how the LAD applies to discipline. Due to this greater guidance and the support behind it, violators of these regulations will face great consequence, including greater exposure to lawsuits.
Disparate Treatment & Disparate Impact
Disparate treatment is a violation of the LAD that happens when schools discipline students differently based on their race, national origin, gender, religion, disabilities, or other protected characteristics—regardless of whether such discrimination is intentional or unintentional.
Differential treatment discrimination is apparent where schools overlook policy violations by students from one group, but strictly enforces the same policies against students of another. This can occur in many contexts – singling out females for violation of clothing policies, disproportionately suspending African American students for violating “no violence” policies, reprimanding only LBGTQ+ students for displays of affection, etc. Schools also violate the LAD based on disparate treatment when following different processes of discipling students belonging to a particular race, national origin, gender, sexual orientation, disability, or other characteristic. This can look like using physical restraint to discipline a male student for using foul language in class, but using verbal disapproval to discipline a female student for the same offense.
Disparate impact is a violation of the LAD that occurs when schools discipline students pursuant to “neutral policies” that result in an unequal impact on members of one protected class but not another.
Under the LAD, schools may not use discipline policies that impact students with a certain protected characteristic more severely than they do other students unless the school can demonstrate that the policy is necessary to achieve a “substantial, legitimate, nondiscriminatory interest.” However, a policy may still be prohibited if it is shown that there is a “less discriminatory, equally effective alternative means of achieving the substantial, legitimate, nondiscriminatory interest.”
Discipline Disparities – Beyond Race
Data collected from the New Jersey DOE demonstrates that although students of all races misbehave at similar rates, African American students are 3.3 times more likely to be suspended than Caucasian students, and Hispanic and multi-racial students are 1.5 times more likely to be suspended than Caucasian students. These racial disparities are even greater for African American girls when compared to their Caucasian female counterparts.
While racial disparity is one of the most commonly challenged in school discipline, there are many other protected characteristics that are greatly impacted by disparate treatment and impact on a daily basis:
* Disabled students are 1.7 times more likely to be suspended than students without disabilities.
* LGBTQ+ students are suspended nationwide at 1.7 times the rate of non-LGBTQ+ students.
* Male students are more than twice as likely to be suspended than female students.
Disabled Students
The new discipline guidelines focus heavily on protecting students with disabilities from discriminatory practices. Students with disabilities experience high rates of expulsion and suspensions compared to their non-disabled counterparts. Additionally, studies show that in 2017-2018, students with disabilities represented only 13% of student enrollment, but made up 23% of expulsions. This differential treatment results in fewer disabled students enrolling in public education and thus diminished socialization compared to that of non-disabled students.
Section 504 of the Rehabilitative Act of 1973 requires that schools provide services to disabled students that are equal to those of non-disabled students. Further, schools must determine whether a disabled student’s behavior is related to their disability before suspending or expelling them. Section 504 also calls for schools to initiate policies that support disabled students’ needs, which may vary from their non-disabled peers.
LBTQ+ Students
LGBTQ+ students are more susceptible to discipline for violating dress codes, showing affection to romantic partners, or advocating for their identity. Research from a GLSEN survey revealed that more than 18% of LGBTQ+ respondents said they have been prevented from wearing clothing that was considered “inappropriate for their gender.” Twenty-eight percent said they experienced discipline for showing affection to their partners – actions which non-LGBTQ+ students did not receive punishment for. Around 17% said they were disciplined for discussing or writing about LGBTQ+ topics.
Firm partner Mike Farhi has this to say about the new rules: “they seem to be a good thing – on paper. The big question is whether schools will train teachers and administrators on how to deal with student discipline going forward. Without that, good intentions could turn bad, for students, parents, teachers and schools.
If your child is a victim of school discipline discrimination, do not hesitate to call us at 201-488-7211 x. 215.
Gianna D’Onofrio is a third-year law student at Seton Hall University School of Law with a passion for Corporate Law. Upon graduating in the Spring and taking the Bar Exam, she will serve as a law clerk to Judge Cynthia Santomauro in Essex County, Civil Division. ]]>On Behalf of Kates Nussman Ellis Farhi & Earle, LLPhttps://www.katesnussman.com/?p=536652023-11-02T09:04:25Z2023-09-22T14:10:04Z
The Basics of Defamation:
Defamation means injuring someone’s reputation through a statement, either written or verbal. A defamatory written statement is commonly referred to as libel meanwhile, a defamatory verbal statement is referred to as slander. Regardless of whether it is libel or slander, the defamatory statement must be one which harms the person’s reputation, exposes them to ridicule, causes others to lose goodwill or confidence in the individual, and tends to injure the individual in their business or employment.
Also, a reasonable person standard is used when finding whether the statement was defamatory. The common and ordinary meaning of the words in the statement are taken into consideration. So, a reasonable person must find the statement to be defamatory.
Proving Defamation:
If you feel that an employer, a co-worker, or other person in your “employment universe” has made defamatory statements about you, there are 5 things you must show:
False statement
Concerning you
Communicated to a third party
Statement was made with negligence in failing to determine the statement’s falsity and
Damages were suffered by you.
But, there is more to this than meets the eye.
For example, the first one on the checklist must be proven false. This does not mean that the whole statement needs to be false in every detail. Instead, the statement must be found substantially false where the statement has a defamatory “gist” or “sting.”
Next, the defamatory statement must show that it was about the Claimant. Using the reasonableness standard once more, a reasonable person hearing the statement must reasonably understand the statement to refer to one particular person .
Third, the victim needs to show that the defamatory statement was communicated to a third party. At least one person needs to receive communication, whether it be verbal or written.
Then, there must be a showing that the offender negligently failed to determine the falsity of the statement before making it. This can be established by showing that the defamer did not take reasonable care when communicating the statement. For example, the defamer did not look into the trustworthiness of their sources, attempt to verify the statement, etc.
The last requirement is a showing that the claimant suffered harm because of the defamatory statement. Examples of harm to the plaintiff’s reputation are losing their job or a promotion, or being shunned by co-workers, because of false statements regarding their experience.
If the victim successfully proves the required elements of defamation, monetary and punitive (penalizing) damages may be recovered. A defamation claim must be filed one year from the date of the statement’s communication.
Defamation of a Public Figure:
If you are a public figure, then the fourth requirement will not apply for you. Instead of a negligence standard, you will have to satisfy an actual malice standard. This means that the defamer made the statement with knowledge that the statement was false or with reckless disregard of the statement’s truth or falsity.
In finding whether you are a public or private figure, the identifying factor is whether you have a role in the affairs of society and are in the public spotlight. Examples of public figures include public officials, celebrities, etc. There are also two types of public figures, all-purpose and limited- purpose. All-purpose public figures achieve notoriety and fame in all contexts. For instance, all-purpose public figures are those who have become household names. Meanwhile, a limited-purpose public figure achieves fame in only certain areas and fields. This results in the actual malice standard only applying to the area that makes the individual a public figure.
Defenses to Defamation:
One of the defenses to a defamation claim is substantial truth. The substantial truth rule allows minor factual inaccuracies in a statement. Yet, the factual inaccuracies cannot materially alter the statement’s substance. A defamer can then claim that the communicated statement was substantially true.
Another defense is the opinion and fair comment privilege allows a person to safely state their pure opinion or comments, as long as there are no false underlying facts. If this privilege is claimed in a lawsuit, a court will look at a “totality of circumstances.” Those include whether the statement is verifiable, the statement’s full context, the social conventions surrounding the statement’s publication and common usage of the language used in the statement.
If you fear that there has been defamatory statements made against you by someone in your workplace, do not hesitate to reach out to the Kates Nussman Ellis Farhi & Earle, LLP team.
Viviana Torres is a rising third-year law student at Seton Hall University School of Law, where she works as an interpreter for the Center for Social Justice. Viviana is also treasurer of LALSA at Seton Hall Law. ]]>On Behalf of Kates Nussman Ellis Farhi & Earle, LLPhttps://www.katesnussman.com/?p=536392023-10-13T06:12:59Z2023-09-08T13:29:22Z
What is a Contract?
Whether between a homeowner and a contractor, a buyer and a seller, or an employee and an employer, a contract is a legally enforceable agreement that contains one or more promises between two or more parties. There are three core elements: (1) offer; (2) acceptance; and (3) consideration. An offer is an expression of willingness to enter a bargain which will allow another person – or a business – to understand that a bargain is proposed. Meanwhile, acceptance is an expression of agreement to an offer or proposal. Acceptance can take the form of a promise to pay or a performance. For instance, someone can accept another person’s offer to walk their dog in 2 ways: by saying “I agree to walk your dog for $20” or by merely walking the dog.
Lastly, consideration means that something of value is exchanged in the contract. So using the dog walking example, consideration will take form in the exchange of the walking of the dog and payment of $20. It is also imperative that throughout the formation of a contract, there is a “meeting of the minds.” This phrase means that there is mutual agreement from both parties about everything when forming the contract.
The Implied Covenant of Good Faith & Fair Dealing.
There is something in contract law called the implied covenant of good faith and fair dealing. It is a rule that requires every party in a contract to carry out the agreement as intended. It is an “invisible” part of every contract in New Jersey and everyone needs to know about it. Neither party cannot do anything that will destroy or injure the right of the other party to receive the contract’s intended benefits. Good faith is generally deemed as honesty in a party’s conduct during the agreement. Meanwhile, fair dealing generally requires that a party cannot act contrary to the agreement. In imposing the duty of good faith and fair dealing on the contract’s parties, the parties cannot:
Lack diligence
Perform their duties incorrectly, or in a delayed way
Abuse their power
Interfere with or fail to cooperate in the other party’s performance
To show breach of the implied covenant of good faith, a claimant, whether a person or a business - must prove three things. First, that a contract existed. Second, that the other party acted in bad faith with the purpose of depriving the claimant the contract’s rights or benefits. Third, the claimant must prove that the other party’s conduct caused the claimant to suffer damage or injury.
For Example?
Here’s an example of a breach of the implied covenant of good faith and fair dealing that can occur in employment relationships:
A graduating college senior named Pat applied for a job opening at a place called X in October of her fall semester. Pat submitted the application and X ’s recruiter then granted Pat an interview. After the interview, the recruiter told Pat by email that X would like to extend a post-graduation offer. The recruiter also detailed the work hours, compensation, health benefits, office location and responsibilities of the job at X in that same email. Finally, the recruiter told Pat that the job’s start date would be discussed later in the year.
Fast forward a few months, it is now April, and Pat’s spring semester is almost coming to an end. Pat reaches out to X’s recruiter asking about the start date. But the recruiter tells Pat that because of the economy, the offer they had extended to her 6 months ago was no longer available. Now Pat has a month left to graduation and no longer has a job. For the past 6 months she did not apply to anything because she was rightfully under the assumption that she had secured a job. The next day Pat was in class when she overheard a classmate tell a friend that he had just received an offer at X. The classmate gloated that because his dad was good friends with the recruiter at X, he got a job there. Pat then realized that the reason why she lost their job offer was not because of the “economy”, but because Pat was wrongly replaced.
In assessing whether Pat has a claim for a breach of an implied covenant of good faith and fair dealing, three things must be satisfied. First, Pat (the offeree) must prove that a contract existed between the parties. Second, Pat must prove that the recruiter (offeror) acted in bad faith with the purpose of depriving Pat of the contract’s rights and benefits. Third, Pat must prove that the recruiter’s conduct caused Pat to suffer a loss.
Starting with the first element, there must be a contract between the parties. Here, there was one because there was an offer, acceptance, and consideration between Pat and the recruiter. There was an offer for a position at X that was given by the recruiter. Pat accepted the offer. Then, there was consideration because something of value was exchanged in the contract. Via email and in response to the recruiter’s offer, Pat agreed to carry out the responsibilities of the job in exchange for compensation and health benefits.
Meanwhile, the second element is established because the recruiter acted in bad faith when interfering with Pat’s right to receive the benefits of the employment contract. For instance, the expectations of Pat as the offeree, was that she accepted an extended offer to work at X. Pat expected that after graduation, she would be employed by X. Now, Pat is left jobless because she did not apply for anything else after accepting the offer which meant she lost out in applying to other potential job openings. Also, there was unequal bargaining power because the party that acted in bad faith was the recruiter, who had the upper hand by interviewing and extending job offers. They acted in bad faith and abused their power by taking Pat’s job and offering it to someone else just because they were friends with their father.
Lastly, the third element is satisfied because X’s recruiter’s actions caused Pat to suffer a loss. Pat was not able to start the job and gain the contract’s benefits of compensation and health benefits. Now Pat is left scrambling to find a post-graduation job.
If you are a homeowner hiring a contractor, a buyer of a consumer product, someone getting their first job after college, or any other party to a contract, know about the “invisible term.” Call us if you need help.
Viviana Torres is a rising third-year law student at Seton Hall University School of Law, where she works as an interpreter for the Center for Social Justice. Viviana is also treasurer of LALSA at Seton Hall Law.]]>