Despite the unprecedented media coverage of the law and legal issues in recent years, there is much confusion among the public about the most basic legal concepts governing our day-to-day lives.  In this space we'll attack some of the more common "myths" we have come across in initial consultations with our clients.

Myth:  "You have to be able to speak English to serve on a school board."

Probably not.   The statute listing the qualifications to serve on a local school board says a member of a school board must be able to "read and write," but, even there, doesn't say in English.

Myth:  "There ought to be a law against those annoying unsolicited credit cards I get in the mail."

Now there is.  Under a law passed by the New Jersey Legislature, effective February 1, 2005, it is unlawful to "mail or otherwise deliver an unsolicited credit card to a person in this State."  The law also immunizes you from liability for any charges incurred on that card by others without your authorization.

Myth:  "Nepotism in employment is illegal."

Not necessarily.  In a case involving charges of nepotism in a local fire department, the Appellate Division held that the New Jersey Law Against Discrimination's ban on discrimination in housing based on "familial status" does not extend to the employment context, and that even if it did, the statute's definition of "familial status" is limited to the parent-child relationship.   The court made clear that while it did not condone the practice of hiring based on considerations other than merit, nepotism does not violate the Law Against Discrimination.  Of course, nepotism is prohibited as a matter of policy in manner workplaces, and recent regulations of the Department of Education impose tight restrictions on hiring of relatives of school board members and school superintendents.

Myth:  "I can be fired for refusing to sign a non-compete agreement."

Not necessarily.   Agreements limiting an employee's right to work for an employer's competitor following termination of employment are generally recognized in New Jersey, as long as they protect a legitimate market interest of the employer, and are reasonable in duration and geographic scope.  However, the Superior Court decision has held that when an employee is fired for refusing to sign a non-compete agreement that does not meet these standards, there may be a viable claim for wrongful termination under the Conscientious Employee Protection Act, New Jersey's "whistleblower" statute, because of New Jersey's stong public policy against restraint of trade.

Myth:   "I can say whatever I want at a public meeting."

Not necessarily.  Many states have adopted so-called "Sunshine Laws" which require public bodies to discuss their business and take action in public, with limited exceptions.  New Jersey's "Sunshine Law", the Open Public Meetings Act, entitles the public to  notice of when government bodies plan to meet, and to be present to observe their activities.  Sometimes, our laws require hearings on specific types of actions where the public must be allowed to comment and ask questions.   However, that is the exception.  Generally speaking,  nothing in our "Sunshine Law" grants any member of the public the general right to speak about whatever is on his or her mind.   Public bodies generally are required to set aside a portion of their agenda for "public comment", but are allowed to set reasonable limits on the length of individual statements or how long the entire "public comment" session will last.   Once this public forum is created, however, members of the public are generally allowed to make truthful statements concerning matters of legitimate public concern, regardless of how unflattering or uncomfortable those views may be to the members of the public body.

Myth:  "If a police officer rams into my car on the way to a crime scene, there's nothing I can do."

Wrong.   Police and other government officials are given immunity from suit for various types of conduct in the good faith performance of their duties.   However, under a decision of the Appellate Division, a police officer and the town that employs him may be liable for injuries caused to innocent parties where the officer acts in a reckless manner.   Mr. Rubin represented the victim on this appeal.   To view a copy of this decision, click here:   /decisions/appellate/a2849-00.opn.html

Myth:  "If a man breaks off an engagement, the woman gets to keep the engagement ring."

Probably not.   The courts in a majority of states have adopted a fault-based rule, where the result turns on whose fault it was that the engagement broke off.   The New Jersey appellate courts have not definitively resolved the issue, but the most recent decision from a trial-level court follows the minority rule, which holds that an engagement ring is a conditional gift, and must be returned if the condition (marriage) is not fulfilled for any reason.   As that court observed:   "The fault rule is sexist and archaic, a too-long enduring reminder of the times when even the law discriminated against women. ... In ancient Rome the rule was fault. When the woman broke the engagement, however, she was required not only to return the ring, but also its value, as a penalty. No penalty attached when the breach was the man's. In England, women were oppressed by the rigidly stratified social order of the day. They worked as servants or, if not of the servant class, were dependent on their relatives. The fact that men were in short supply, marriage above one's station rare and travel difficult abbreviated betrothal prospects for women. Marriages were arranged. Women's lifetime choices were limited to a marriage or a nunnery. Spinsterhood was a centuries-long personal tragedy. Men, because it was a man's world, were much more likely than women to break engagements. When one did, he left behind a woman of tainted reputation and ruined prospects. The law, in a de minimis gesture, gave her the engagement ring, as a consolation prize. When the man was jilted, a seldom thing, justice required the ring's return to him. Thus, the rule of life was the rule of law--both saw women as inferiors."

Myth:  "If I'm out of work due a work-related injury, I'm entitled to my job back when I'm done recuperating."

Not necessarily.   Federal and state employment discrimination laws place an affirmative duty on employers to offer disabled employees reasonable accomodation, as long as the employee is able to perform the essential functions of the job.  A short term absence for medical treatment may constitute a reasonable accommodation under certain circumstances.  However, since the essential functions of most jobs cannot be performed without the employee present, there comes a point where long term, indefinite or sporadic absences may go beyond the employer's duty of reasonable accommodation.  The courts have not established clear guidelines in this area so, for the time being, this issue must be analyzed on a case-by-case basis.  However, one New Jersey court has held that the cause of the disability is irrelevant, even if the employee was injured on the job.

Myth:  "To be guilty of drunk driving, I have to be driving."

Wrong.   New Jersey's drunk driving statute refers to "operating" a motor vehicle while under the influence, and has been interpreted very broadly by the New Jersey courts.   For example, if an intoxicated individual gets behind the wheel of a car and attempts to put the key in the ignition, he will likely be in violation of the statute even if he is apprehended before the car moves, or is even started, as long as it was his intent to drive.

Myth: "Documents legally requiring a signature are not binding if sent by e-mail."

Not as of June 26, 2001, when the Uniform Electronic Transactions Act became effective in New Jersey.  The Act, designed to facilitate ecommerce between consenting parties, provides that "electronic signatures" are sufficient to bind a party in certain types of transactions, and establishes new legal guidelines for electronic transactions.  For further information or to receive a copy of the Act (electronically, of course), contact us.

Myth: "I can sue my builder if he fails to disclose adverse off-site conditions to me."

Not necessarily.  It depends on the type of development you're buying into.  The New Jersey Supreme Court issued a decision in 1995 allowing homebuyers to sue developers and real estate brokers who failed to disclose important off-site conditions prior to the sale.  A short time later, the Legislature adopted the New Residential Real Estate Off-Site Conditions Disclosure Act, which overruled that decision and barred such suits, as long as buyers were notified of the availability of certain lists required to be kept on file with the muncipal clerk disclosing various types of offensive land uses in the area.  However, buyers of homes in certain planned residential communities are still protected by the Planned Real Estate Development Full Disclosure Act, which requires explicit disclosure of such conditions in a public offering statement.

Myth:  "You have to be at least a lawyer, if not a judge, to be appointed to the U.S. Supreme Court."

Technically, no.  Although nominees to the Court have typically been attorneys, if not sitting judges in a lower court, the Constitution does not specify formal requirements for the position of Supreme Court Justice.

Myth:  "Conviction of a minor offense in municipal court won't necessarily cost me my public employment."

Not necessarily.   New Jersey's Criminal Code requires that public employees immediately forfeit their employment upon conviction of any offense "involving or touching" their employment, no matter how minor.  This provision supersedes any civil service or tenure protection the employee otherwise might enjoy.  Public employees charged with seemingly trivial offenses should take this into account in determining how vigorously such charges should be defended.

Myth:  "If I don't like my local school system, I can send my kids to live during the school year with relatives in a 'better' district ."

Wrong.    The general rule is that children may only attend the public schools in the district where the parent or legal guardian is domiciled.   Children living with a relative may attend schools in that district only if the parents/guardians and the relative sign affidavits establishing a family hardship requiring that arrangement, and swearing that the parents/guardians have transferred all financial support obligations to the relative.

Myth:  "I can't be held financially responsible for vandalism by my children unless I'm somehow at fault."

Not necessarily.  The general common law rule is that parents are not liable for damage caused by their children unless they were guilty of negligent supervision or otherwise were at fault.  However, a little-known New Jersey statute adopted in the 1800's makes parents strictly liable for their children's vandalism to public school property, dollar for dollar without limit and without any showing of fault.

Myth:  "It's illegal to abandon a newborn baby."

Not anymore.  Effective August 2000, the New Jersey Safe Haven Infant Protection Act permits parents of newborns no more than 30 days old to abandon them anonymously at a police station or hospital emergency room without fear of prosecution.   Similar laws have been passed in Texas, Minnesota and Louisiana, and are under consideration in more than twenty other states.

Myth:  "Whatever I say to a mental health counselor is completely confidential."

Not necessarily.  New Jersey's mental health professionals are governed by a complex web of duties, privileges and immunities that vary depending on whether the individual is a psychiatrist, a psychologist, a social worker or a marriage counselor, especially when it comes to testifying in court.   However, the Legislature has imposed  a "duty to warn and protect" that requires most all of these professionals either to disclose confidences or to take precautionary measures when a patient has communicated "a threat of imminent, serious physical violence against a readiliy identifiable individual or against himself and the circumstances are such that a reasonable professional in the practitioner's area of expertise would believe the patient intended to carry out that threat."  Even without an explicit threat, the "duty to warn and protect" is triggered if the circumstances are such that a reasonable professional would believe that the patient intended to commit such violence.    Professionals in these fields should familiarize themselves with current law in this area, as a recent New Jersey Supreme Court decision has exposed them to greater liability for revealing patient confidences when they should not have.   

Myth:  "A non-custodial parent has no right to inspect a child's public school records without the custodial parent's consent."

Wrong.  Under regulations of the State Board of Education, and absent a court order to the contrary in a given case, any natural parent generally has the right to inspect his or her child's public school records regardless of who has custody, unless that person's parental rights have been formally terminated.

 Myth: "Anything I say to my lawyer is completely confidential."

Not necessarily. Confidentiality remains the general rule, but there are important exceptions. For example, a New Jersey lawyer is ethically required to report to "the proper authorities" any information necessary to prevent a client from commiting "a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another."   Also, a lawyer is not required to, but may, disclose confidential information "to rectify the consequences of a client's criminal, illegal or fraudulent act in furtherance of which the lawyer's services have been used."

Myth: "No one can lawfully tape record a phone conversation with me without my knowledge."

Wrong.  Under New Jersey's Wire Taping and Electronics Surveillance Act, there are many situations where private citizens may lawfully tape record, and use as evidence in court, phone conversations to which they are a party without the other's knowledge or consent.  In one recent case, a divorced father was even allowed to use in court a tape recording of a phone call between his children and their mother.   Don't assume that you're not being recorded just because no one tells you or you don't hear a "beep".

Myth:  "My creditors can't levy on my I.R.A."

Not necessarily.  I.R.A.'s and certain other retirement accounts, regardless of how large, are protected from creditors by New Jersey statute in most cases.    Two exceptions are where the funds were deposited into the retirement account initially for the purpose of defrauding creditors, or if the money is subject to a support order.
                

Myth:  "My true identity on America Online or similar online services is completely confidential."

Not completely.  The federal Electronic Communication Privacy Act allows these services to disclose information about an account holder in response to a lawfully served subpoena. 
       
Myth:   "If I win a lawsuit, the other side has to pay my legal fees."

Usually not.  The general rule in New Jersey and most other states is that parties in litigation are responsible for their own legal fees, win or lose.   The underlying policy is that litigants should not be discouraged from bringing suit for fear of paying the other sides' litigation expenses, if they bring suit in good faith but lose in a close decision.  There are exceptions where the law entitles prevailing parties to have their counsel fees paid by the loser.  Examples include certain civil rights, discrimination and whistleblower claims, or breach-of-contract claims where the contract explicitly specifies that remedy.  Since litigation expenses can be substantial even  in a case involving a small loss, who is ultimately responsible for the expense of litigation is a factor that must be considered before deciding to file suit.

Myth: "My boss needs a good reason to fire me."

If you're like most American workers, probably not. The general rule in New Jersey and most American jurisdictions is that the employment relationship may be terminated at will by either party without provable "good cause".  But there is a growing list of exceptions, including: (a) where the employee enjoys job security under a written contract explicitly requiring good cause to terminate; (b) where the employee works in a public sector job covered by tenure or civil service-type laws; (c) where the reason for termination is specifically prohibited by federal and state anti-discrimination laws focusing on race, gender and other so-called protected classifications; (d) where an employee handbook or manual includes a "good cause" requirement.  If you are an employee or employer and need advice on where you stand, call us.  We can help.

Myth: "If the buyer of my home refuses to close title, I can keep the entire deposit."

Not necessarily.  Under general principles of contract law, a party is entitled to compensation only for harm actually suffered.  When that harm is difficult to calculate, the law sometimes allows parties to agree on so-called "liquidated damage" clauses which stipulate an amount of damages in advance.   However, the New Jersey courts have held that in sale-of-home contracts, a seller may not keep the entire deposit if the buyer defaults -- only so much as is necessary to compensate for provable harm suffered as a result of the buyer's breach.

Myth: "Contracts must be in writing to be enforceable."

Not necessarily. For centuries, a law called the Statute of Frauds listed certain types of contracts which had to be in writing to be enforceable because they were felt to be most susceptible to fraudulent claims. Real estate contacts were on the list, along with agreements which could not be performed within one year, and several others. If a writing was not explicitly required by the Statute or similar legislation, a contract could be proved by oral testimony alone assuming, of course, it were accepted as credible by the court. Recently, the New Jersey Legislature liberalized the Statute to dispense with the writing requirement in certain cases, including real estate contracts, because it was felt that modern litigation techniques have made it easier to determine whether someone is telling the truth. In those cases, an oral agreement (even including one to sell real estate) can be enforced by a court if it is proved by clear and convincing evidence. Of course, common sense dictates that any agreement of consequence be reflected in a writing plainly spelling out all the material terms, and signed by the parties involved, to avoid a "he said-she said" battle at the courthouse.

Myth: "It's not sexual harassment unless the boss knows he's making me uncomfortable."

Wrong. New Jersey has adopted the "reasonable victim" standard in sexual harassment cases. An employee no longer needs to prove that the boss had any inappropriate intentions or was even aware of the discomfort his actions were causing. New Jersey's Law Against Discrimination now holds employers liable for conduct which a reasonable woman (or man, if the victim is male) would find sufficiently offensive and unwelcome, whether or not the boss actually realizes the effect of what he's doing.   The New Jersey Supreme Court has explicitly recognized that men and women often see and feel things differently, and has put employers on notice that their conduct will be judged from the viewpoint of the victim, not the offender.

Myth: "I'm being discriminated against because my co-worker gets paid more for the same work."

Not necessarily.  It depends on the reason.   There is no law generally requiring employers to treat all similarly situated employees the same, and there are many legitimate business reasons why differential treatment can occur.  For example, depending on what a new employee was making in his last job, an employer may have to offer a starting salary higher than some current employees to secure his services.  The law allows for this flexibility in most cases.   On the other hand, where differential treatment is because of an employee's membership in certain categories protected by our federal and state civil rights laws, it is unlawful.  The list of protected categories under New Jersey's Law Against Discrimination presently includes: (a) race, (b)creed, (c)color, (d) national origin, (e) ancestry, (f) age, (g) marital status, (h) affectional or sexual orientation, (i) sex, (j) atypical hereditary cellular or blood trait of any individual, (k) liability for service in the Armed Forces of the United States, and (l) nationality.
 
Myth: "I can't be guilty of defamation unless I act with malice."

Not necessarily.  The law of defamation recognizes that one's reputation is a valuable asset, and holds one liable for harm to another caused by false statements which injure the other's reputation.  The general rule is that one issuing the false statement need not act with ill will toward the other, or even have actual knowledge that the statement is false.  But, as with most general rules, there are exceptions.  For policy reasons in some cases, the law makes it harder to prove defamation so as not to chill the free flow of certain types of information.    The most well-known example applies to reporters who cover the activities of public officials, where it must be shown not only that the statement was false but that the reporter likely knew it and intended to cause harm.  In certain other cases such as reports of suspected child abuse to State authorities, the immunity for innocently false reports is almost absolute.  If you are concerned about the legal consequences of statements you have made, or your reputation has been harmed by false statements by others, call us.  We can advise you on where you stand.